The appellants' arguments
- The appellants argue that when the court ruled that it is in the best interest of the children to remain in Israel, and in light of the fact that the consideration of the child's best interest is an overriding consideration, a decisive consideration in making decisions in the matter of children, it should be ordered that the children remain with their mother in Israel. In this regard, the appellants rely on the various opinions given by professionals in the matter of the children, including by the Ministry of Education committee, all of which determined that the detention of the children caused them serious damage, that they continue to experience the trauma as well as the danger of deportation from Israel, which hangs like a cloud over them, as well as the significant negative impact of uncertainty on their situation.
- The appellants insisted that this appeal was conducted in parallel with the proceedings in the humanitarian track, and in both cases the Authority should have examined the best interests of the children by a professional on its behalf, and it did not do so. The appellants noted that since the appellant's mother was interviewed on January 4, 2022, no decision has been made on the humanitarian application, due to the failures of the Authority, which failed to examine the best interests of the children as it should have done and as it had undertaken to do for years. The appellants also point out all the failures of the authority and violations of the court's decisions, which were detailed in detail above, and I will not repeat them in the framework of the parties' arguments. According to them, in the test of the outcome, the Authority did not examine the best interests of the children, neither in the framework of this appeal nor in the framework of the humanitarian request, since the appellants were arrested until today, nearly five years later. The appellants note that all the while the Authority has been holding the money in the guarantee deposited by the appellants, and even obligates the appellant mother to report to the Authority's offices once every two weeks, including details of the proceedings that followed the Authority's decision to require her to appear twice a week.
- The appellants also noted the Authority's attempts, time after time, to hold a hearing for children in the Authority's facilities, by a social worker who does not specialize in caring for children, and in a format that does not conform to the format that was determined as an appropriate format for conducting interviews for children. They also noted that after the Authority received countless opportunities from the court to settle the matter, the court was forced to determine the manner in which the interviews were conducted, but the Authority did not comply with this, and in the end the court was forced to determine that in light of the Authority's failures, it is in the best interest of the children to live in Israel. In this regard as well, the matter was brought at length above, and I will not repeat them in the framework of the appellants' arguments.
- The appellants insist that the court, in its decision of May 21, 2023, ruled that an examination of the children's best interests is required both for the purpose of deciding the appeal and for the purpose of deciding the humanitarian application. Therefore, according to the appellants, the court's decision that it is in the children's best interest to remain in Israel relates both to the humanitarian request and to the question of the children's removal from Israel, which is at the center of this appeal. According to them, it is inconceivable that after the court's decision of December 26, 2023, the Authority was allowed to deport the appellants from Israel and inflict on them all those known and foreseeable damages, for which it was determined that it was in their best interest to remain in Israel. The appellants emphasize in this regard that already in its decision of May 21, 2023, the court noted that the mere act of waiting for many years in the shadow of the deportation is liable to cause harm to the children, and that weight should also be attributed to the time that has elapsed without the matter being handled.
The Authority's Arguments
- The Authority focuses on its arguments in the procedural framework of the appeal - an administrative appeal, which attacks the judgment of the Appeals Tribunal, which upheld the removal and custody orders issued against the appellant, the children's mother, and as a derivative against her children as well. Therefore, according to the Authority, the focus of the appeal was administrative decisions relating to the issuance of restraining and custody orders for illegal presence in Israel, and in relation to them, the court was asked to exercise judicial review. The Authority insists that shortly after the appeal was filed, the respondents were released from custody, and the Authority announced, in the framework of the appeal of its decisions to reject the humanitarian application, that it was willing to reconsider the appellants' request for status on humanitarian grounds. According to her, since no decision has been made on this application, it is in any case not yet possible to conduct judicial review in relation to it, and the court is limited to deciding on the appeal before it.
- With regard to the best interests of the children, the Authority argues (paragraph 8 of the summaries) that: "An attempt to hold a meeting of a social worker on behalf of the respondent with the appellants, for the purpose of formulating an opinion on their matter - an attempt that was unsuccessful in light of applications submitted on behalf of the appellants and decisions made by the honorable court that stopped the respondent's actions." The Authority goes on to claim that in light of the fact that the court's decision stipulated that the best interests of the minors would be examined by a social worker for the Youth Law, and that despite attempts made, they were unable to employ such a social worker, they were forced to agree that the court would determine what was in the best interests of the children. However, according to the PA, a decision on the humanitarian request is still pending.
- The Authority further claims that afterwards, in light of the court's decisions, it did not discuss the humanitarian request any more. As to the appellants' arguments that the appellants should be granted an A/5 visa, the Authority argues that it opposes this, firstly because this is a relief that was not requested in the appeal itself, and secondly because the parties authorized to render the decision that is the subject of the appeal - restraining and custody orders - are not authorized to grant this status.
The appellants' arguments in the reply summaries
- The appellants claim that during four years the PA refrained from deciding, and even discussing, their application for status on humanitarian grounds, and at the same time, throughout that period, it abused them and acted to remove them from Israel, while ignoring the law, the obligations it undertook, and the explicit decisions of the court. Therefore, according to them, the Authority should not be allowed to argue today that the proceeding is "not topical" as it puts it, since the restraining orders are not enforced at this time, and the court lacks the authority to award the relief they requested.
- The appellants further argue that the Authority's arguments that the appeal was redundant in light of the fact that the removal orders were not implemented, and in light of the Authority's agreement to reconsider the humanitarian request, are arguments that should be rejected. This is because these are circumstances that have been known for years. The appellants were released from custody on September 19, 2019, and the Authority's agreement to reconsider the humanitarian request was validated by a judgment in the Appeals Tribunal's decision of January 24, 2021. Despite this, the Authority did not act all those years to reach a decision on the humanitarian request, and filed the request to delete the petition on these grounds on 6 March 2024, instead of submitting summaries on its behalf.
- The appellants further claim that the Authority's arguments that since the removal orders were not implemented, the proceeding became redundant, are outrageous, as they put it, since, throughout the years the Authority acted to remove the appellants, inter alia, by summoning Appellant 1 to hearings for the purpose of "promoting exit from Israel", the last of which, during the submission of the summaries themselves. The appellants added that the court is authorized to grant the appellants the relief requested, first and foremost because the Court for Administrative Affairs is not limited to the remedies requested, and it is entitled to grant any proper and just relief in the circumstances of the case, as well as in light of the Authority's conduct in the proceeding.
Discussion and Decision
- Admittedly, the appeal raises questions regarding the best interests of children, but its heart and essence is the conduct of the authority, which violated its duties as an administrative authority: the duty of fairness; the duty to exercise its powers quickly and efficiently; The duty to base decisions on full factual basis and the duty to act with equality, all in violation of Israel's obligations under the Convention on the Rights of the Child, as well as the violation of obligations given to the court and the appeals court. The best interest of the children, as proved by the appellants and not contradicted by the Authority, which to date has not examined the best interests of the children, is to remain in Israel, with a visa that will give them certainty and guarantee their rights.
In light of the above, I will preface the discussion to a conclusion - in the special circumstances of the case, the appellants' suffering must be put to an end and the appellants must be granted an A/5 visa that will remain valid until appellant 3, the girl S., reaches the age of 18.