The Authority did not even bother to refer to the diagnosis that the girl S. underwent, as part of the Ministry of Education's committee, and her condition as it emerged from that diagnosis. Initially, the decision and the diagnosis were not brought to the head of the desk due to a malfunction, it was claimed. But since then, and in all the years since the authority did not examine the best interests of the children itself, it also did not bother to refer to the diagnosis made by a different authority than the state authorities.
- Considerations of consistency and mutual respect between the state authorities, which are related to both economic efficiency, governance and stateliness, oblige the authority to at least relate to the evaluation conducted by the Ministry of Education. The state has invested considerable resources in assisting Girl S., including the diagnosis she was made and placed in a special kindergarten classroom. The state, as noted, is not allowed to speak with two voices, one from the Ministry of Education and the other from the Population Authority in the Ministry of the Interior. In addition, the principle of mutual respect between state authorities requires respect for the expertise of those who diagnosed child S., especially when the authority refrained from receiving opinions from professionals on its behalf.
Not only did the Authority ignore the diagnosis, but both the Authority, and the Tribunal, without any relevant professional background in the field of mental health, disqualified the opinions that were submitted, both because they were given by psychologists from the private market, and on their merits. I will elaborate.
- As noted, the decision to reject the humanitarian request was made on 25 February 2020 (i.e., nearly six months after it was submitted). With regard to the psychological damage caused to the children, the Authority's decision noted as follows: "With regard to the allegations regarding the mental distress of the Applicant's son, these were not proven in official documents of medical officials in public institutions, and all the more so because they were submitted only after the aforementioned was arrested, and therefore I did not get the impression that this was a real cause" (the decision was attached as Appendix 17 to the appeal that was attached to the appellants' notice of update of October 22, 2020). First, it is not clear why medical personnel in public institutions are required to prove the children's condition. The Authority's employee disqualifies, in advance, the professionalism of psychologists from the private market, without any basis or justification of any kind. In addition, if the authority itself does not examine the best interests of the children through experts from the public service, how can it expect the appellants to be able to do so? In addition, and mainly, what are the qualifications or authority of the director of the Population Authority office in Herzliya, to evaluate the opinion of a professional, a clinical psychologist, and to "get the impression", as she puts it, that this is not a real ground, we did not know.
- Counsel for the appellants noted these defects in the framework of the internal appeal filed against the decision of the Director of the Bureau. Despite this, the internal appeal was rejected by the head of the Humanitarian Committee's desk on 24 August 2020 (the decision was attached as Appendix 24 to the appeal attached to the update notice of 22 October 2020). The head of the desk reiterates the sequence of events, and notes the documents attached to the request - the first opinion of psychologist Enrique Mindlin dated August 30, 2019 (upon the appellants' arrest), and the opinion of psychologist Daniella Cohen of February 27, 2020. The head of the desk refers to the psychological opinions, while also emphasizing that these are private opinions. Here, too, it should be emphasized again, there is no reason for the head of the desk to disqualify expert opinions on their faces, just because they were given by psychologists from the private market, especially when only the children can reach them. In addition, the head of the desk, who does not specify that she has any professional training in the field of mental health, relates to the children's situation as described, and writes as follows in her decision: "In the context of the allegations raised in relation to minors that they have integrated into the educational framework in Israel and are involved in it... Your client did not point to real, exceptional damage that may be caused to her and her children to return to their country..." She added: "With regard to the medical condition of the children [suffering from anxiety]... With all the sadness regarding the children's developmental situation and all the traumas they experienced during their stay in Israel, a review of the documents attached to the request shows that they cannot be treated as serious, exceptional or special problems that would establish a humanitarian reason." In retrospect, it turned out that the decision of the Ministry of Education committee and the updated opinion were not before the head of the desk. However, even if she had only the first two opinions, they spoke of existential anxieties and significant difficulties determined by two psychologists whose professionalism is relevant, and it is not clear on the basis of which the head of the desk, who has no expertise in the field of mental health, determines that these difficulties do not constitute exceptional or special problems.
As noted, an appeal against the head of the desk's decision regarding the humanitarian request was deleted by consent after the Authority undertook to reconsider the humanitarian request, but refrained from deciding on this request.
- In this proceeding, too, the court acted in a similar manner, casting aspersions on the professional opinion submitted to it, and invalidating its conclusions. The Appeals Tribunal, in its judgment that is the subject of this appeal, also referred to the principle of the best interests of the child and the opinion that was before him at the time (the opinion of the psychologist Mr. Enrique Mindlin). Thus, the court ruled regarding the opinion, which should be emphasized that it was prepared while the children were in detention: "I will begin by saying that this is a laconic and comprehensive document that is not based on tests or clinical findings and which generally indicates anxiety in the minors, which in the circumstances at hand are the norm." How does the judge know what the anxiety norm is among young children who have been arrested? It should be emphasized in this regard that the psychologist stated in his opinion that he knew the children. In addition, it should be emphasized that psychologist Daniella Cohen, in her opinion submitted on July 14, 2022, explicitly contradicts the Tribunal's conclusion. In the opinion, it was determined, as quoted above, that the anxieties from which the child S. suffers are not "appropriate for her age or a younger age", but rather a process of traumatic experiences such as the experience of detention. In other words, the psychologist explicitly determines, in complete contradiction to the words of the court, that he does not have professional training, that anxiety is not the norm.
- It should be emphasized that the Authority and the Tribunal are not professional bodies in mental health. The Authority's personnel, who are not professionals in the field of mental health, are not allowed to reject the opinions or ignore their conclusions, without an appropriate factual basis. The same is true of the court. Therefore, the decision of the Director of the Bar is that he is "not impressed" by the opinion that was submitted; The head of the desk's decision that: "A review of the documents attached to the request [psychological opinions] shows that they cannot be treated as serious, exceptional or special problems....", and the court's decision that: "The anxieties of the minors in the circumstances are within the norm" cannot stand. In light of the aforesaid, since there are no professional opinions to contradict, I determine that the factual basis upon which the Authority should have decided includes the four opinions and the decision of the Ministry of Education. The Authority did not make a decision based on this evidence. Therefore, it must be determined that the best interests of the children, which arise from the relevant professional opinions presented by the appellants, require that they remain in Israel with a status that will ensure certainty and stability until they reach adulthood.
The obligation to act quickly and efficiently, delays in decision-making and harms the children's best interests
- Another duty imposed on an administrative authority is the duty to act efficiently and quickly, taking into account the matter at hand. Thus, for example, the rule set forth in the Interpretation Law, 5741-1981, which obligates the authorities to exercise their powers with the appropriate speed (section 11 of the law), as well as the doctrine of administrative estoppel. When it comes to children's rights, this matter is of particular importance. In this case, the authority did not deal with the appellants' case at a time when it was possible to remove them while causing relatively little damage. If the authority had ordered the removal of the children and their mother (to the extent that this was possible in terms of the differences in citizenship between the children and their mother), when the eldest son M. was 3 years old, upon entering the public education system, it seems that his best interests would not have been harmed, or would have been harmed less (and see my recent decision on this matter in administrative appeal 28837-01-25, where the proceeding was deleted following the court's recommendation, since there it was a matter of removing a father from his wife and children (three years old and less than a year), When his wife and children hold the same citizenship and are allowed to return with him to their country. In my recommendation, I based it on the young age of the children).
An additional delay occurred from the date of the appellants' arrest. The children and their mother were arrested as M., the boy was 9 years old, and his sister S. was 4 years old. Since then, the Authority has not acted only to determine what is in their best interest, and certainly has not acted quickly and efficiently to this end. When the state, which knows about their status, does not act on their case, significant damage is caused to the children. In doing so, the state harms the best interests of the children, especially when this has been going on for years. In order to clarify this matter, I will insist on the obligation to consider the best interests of the child, and the damages caused to the children, in violation of the provisions of the Convention in the case before me.