See also the supplementary judgment of the Tel Aviv-Jaffa District Court in administrative petition 38707-07-23 Dana B. et al. and their minor children v. Minister of the Interior and the Population Authority (unpublished), with regard to the consideration of the importance of recognizing the sisterly relationship, as quoted below later in the judgment.
- The state argues with regard to the issue of the split of "status" between the two minors in the family, that there is no basis for preferring the prevention of the split of status, at the cost of creating a substantial split of status between the biological mother - whose status in Israel depends on the continuation of a marital relationship and the center of life in Israel - and her minor daughter, when the issuance of an order may lead to the minor receiving status in Israel.
- I cannot accept this argument. The possibility that Applicant 1 will not receive permanent status in Israel and will eventually be forced to leave the country is only a possible scenario. No infrastructure has been laid by the state regarding the real chance of this scenario materializing (which, on the face of it, seems to be low at the moment), beyond being a theoretical possibility. The legal rule states that the certainty is preferable to the doubt ("Perhaps and the righteous are preferable"). In other words, preventing the issuance of the judicial parenting order at this stage will certainly and immediately harm the minor's best interests. On the other hand, if the order is granted, and the scenario in which Applicant 1 is forced to leave the country is realized, it is doubtful whether the harm to the minor will be more severe than the harm that would be caused to her if the order was not granted.
- In addition, in a situation where an official parental relationship between Applicant 2 and the minor is not recognized, by means of a judicial parenting order, and Applicant 1 is forced to leave Israel with the minor, the minor will be cut off from her family unit, and Applicant 2 will not have the legal standing to demand contact arrangements and visits to the new country of residence of Applicant 1 and the minor, or to be involved in decision-making concerning the minor. There is no need to elaborate on the destructive consequences that this will result from this for the minor.
- Thus, the response of granting temporary guardianship to Applicant 2, as an interim solution, until Applicant 1 reaches the last year in the gradual proceeding, is a very partial response and far from satisfactory, and it is in the minor's best interest that a judicial parenting order be issued immediately, and without any delay.
The residency requirement - does it justify not granting the order, despite the minor's best interest in granting it?
- The State is of the opinion that the application in this case should not be granted, due to the non-fulfillment of the residency requirement and the implication of the granting of the parenting order that will be granted, to the extent that the application challenges the status of Minor B, and it refers to the reasons of the inter-ministerial team, and wishes to view the reasons as overriding any other consideration.
- However, in the M. L. judgment, the Honorable Justice N. Shilo rejected by a majority opinion, one by one, the arguments of the inter-ministerial team, on which the state's position is based. The matter was also detailed in the judgment given in the previous proceeding.
- Thus, the argument that a judicial parenting order is inspired by the Adoption of Children Law and the Agreements for Carrying Embryos Law was rejected. The court ruled that the analogy to these laws is misplaced. The Honorable Justice Shilo reasoned that the rationale for the residency requirement in these laws - the ability to conduct tests, and the allocation of "limited resources" only to those who will raise the child in Israel - does not apply in the case of a judicial parenting order. This order is intended to regulate the existing factual situation of parenthood, and it is not a matter of "classic" adoption or the allocation of limited resources. In his words: "... The analogy to the Adoption Law and the Surrogacy Law with regard to the residency requirement is misplaced. It is important that the minor and the spouse applying for the parenting order be residents of Israel in the sense that it will be their usual place of residence, but there is no need for permanent residency under the immigration laws, since, as stated, the rationale for the residency requirement set out in the aforementioned laws does not exist in this case" (paragraph 20 of the judgment of the Honorable Judge Shilo).
- The argument that the child's best interest in preventing a split between his status in Israel and the status of the applicant for the order due to the fear that the parent who does not have status in Israel will be removed from the country while the minor remains there, was also rejected. It was held that the minor's best interest in the immediate recognition of Applicant 1's parenthood outweighs the fear that if she is forced to leave Israel in the future, damage will be caused. This damage, if realized, will occur whether or not a parenting order is granted. In fact, failure to grant the order may actually be a catalyst for severing ties due to a lack of legal obligation. The Honorable Justice Shilo held: "... The advantage in terms of the minor's best interest in recognizing M.'s motherhood already outweighs the damage that may be caused to the minor if M. is eventually forced to leave Israel. After all, this damage will be caused whether the parenting order is issued or not. On the other hand, the granting of the parenting order today will grant the minor a courageous commitment anchored in the status of a parent on M.'s side, and will also prevent the erosion of her parental status, and these advantages outweigh (paragraph 15 of the judgment of the Honorable Judge Shilo).
- The court also rejected the argument that it is in the minor's best interest to prevent the splitting of legal status in our case, so that both of his parents will be recognized in Israel and in the country of residence he will be recognized as the son of one parent. The court ruled that greater importance can be recognized in the country in which the minor actually resides, and in which parenthood is expressed in practice, and not in another country in which the minor does not live. In the words of the Honorable Justice Shilo: "... It is of great importance to recognize the parenthood of the other spouse who serves as a parent in the country in which the minor is actually located, and this interest outweighs the damage that may be caused to the minor if in another country in which he does not actually live, the non-biological parent will not be recognized as a parent, and that what harm will be caused to the minor in our case if... Will they not recognize M. as his mother? What does this mean for a minor who actually lives in Israel" (paragraph 12 of the judgment of the Honorable Judge Shilo; emphasis is underlined).
- The reason for preventing a "shopping forum" was also rejected, on the understanding that the important recognition is the actual place of residence of the minor and the parents, and not the search for a country that will allow an order that is not issued in the country of formal residence.
- The argument that it was difficult to provide a professional opinion and gather information was also rejected. The Honorable Justice Shilo recognized this as a weighty argument if the minor does not reside in Israel. However, in that case, the minor and the applicants reside in Israel, and applicant 1 had resided in Israel, at the time of the judgment, for more than 4 years, which justifies the possibility of making a full assessment.
- Finally, in the case of K.L.M., the argument regarding the fear of abuse of the parenting order process for the purpose of acquiring status in Israel while circumventing immigration laws in Israel was also rejected. The Honorable Justice Shilo noted that in a case such as the one before him, in which the minor was in any case an Israeli citizen by virtue of the Israeli biological parent, the case law order in itself does not grant status. In these cases, the fear of abuse is reduced or non-existent. Such circumstances were also before the court in the previous proceeding between the parties in question, as aforesaid. However, it is important to note the court's additional ruling in the case of K.L.M.: "If the state suspects that the spouse of the biological parent is in fact an impostor and is not a real spouse who is caring for the minor as a parent, and his entire intention is only to acquire status in Israel, it is entitled to demand the submission of a report as well as to investigate the couple and prove that this is in fact a misrepresentation whose purpose is only to circumvent immigration laws. However, it is not possible to establish a sweeping rule that will apply to all applicants for a parenting order because of the fear that a certain minority will try to abuse this mechanism. Those suspected of abuse of the proceeding should be dealt with on a specific basis and those who apply in good faith should not be denied the possibility of obtaining a parenting order (paragraph 6 of the judgment of the Honorable Justice Shilo).
- In the judgment given in the previous proceeding, I adopted (with proper humility) all the rulings of the Honorable Justice Shiloh in the case of L.M., and I have no choice but to repeat this.
- In its arguments, the Respondent refers to the words of the Honorable Justice Sohlberg in the case in Tax Appeal 802/21, in which the State filed an application for leave to appeal against the judgment in the K.L.M. case, in support of its arguments, even though its argument in this matter was rejected in the judgment given in the previous proceeding, and I have no choice but to repeat the words.
- Before I cite the words of the Honorable Justice Sohlberg, to which the Respondent referred, it should be noted that as determined in the judgment in the previous proceeding, the discussion and decision of the Supreme Court on the question of the need for residency, as a condition for the issuance of a judicial parenting order, became superfluous since the State informed the Supreme Court that the Minister of Justice and the Minister of Welfare and Social Security had decided to adopt an updated policy on the issue of residency, according to which, The recommendation of most of the members of the professional team regarding the residency conditions, in both its aspects, as stated in the recommendations of the inter-ministerial team, will remain in place, and this will be the state's position in the various proceedings dealing with the issuance of a judicial parenting order, but this will be subject to exceptions that will be possible in the appropriate cases. In the circumstances of that case, the state announced that it was removing its objection to the issuance of the judicial parenting order, since it believed that the case fell within the category of exceptions.
- Against the background of the aforesaid, in the judgment of the Honorable Justice D. Barak Erez, she noted as follows: "... There is no need to go into all the details of the state's position, which will presumably be examined in the courts. In the present context, it is sufficient for us that the state no longer insists on the principled approach that sweepingly denies the granting of a judicial parenting order when one of the spouses is not a citizen or resident of Israel, on whose behalf the application was filed. The State further stated that in the concrete circumstances of the case, after most of the period required for the gradual process of acquiring status in Israel (of Respondent 2) has passed, it no longer objects to the granting of a judicial parenting order" (paragraph 17).
- In his judgment, the Honorable Justice Noam Sohlberg made the following comment, on which the State relief:
"Thus, the position of all government officials today is that there is a clear and explicit rule that does not allow for the granting of a judicial parenting order to everyone in the world, but at the same time, there are also specific exceptions, which relate only to limited cases, which may allow otherwise. In other words, the applicant for a judicial parenting order must comply with the 'residency requirement', similar to that found in the Adoption Law and the Surrogacy Law. This requirement includes two cumulative aspects: substantive residency - the applicant must be a citizen or permanent resident of Israel; Practical residency - the applicant must prove that he or she resided in Israel for 3 of the 5 years preceding the submission of the application, or during 12 of the 18 months preceding the submission of the application. The exceptions described in the state's notice do not require a decision in the circumstances of the case, but it is clear that these are only exceptions, the scope of which is limited. However, it can be implied from my social statements that the scope of the exceptions is not limited, and that it will be clarified in appropriate cases in the future. From this, I would like to have reservations."