(My emphasis - M.A.C.).
It seems that his words were said especially for the case before me. The children's mother chose to stay in Israel illegally. The children have been educated, as required, in the state's educational frameworks for years, including after a diagnosis by the Ministry of Education committee in the case of the girl S. Moreover, when this appeal was filed, the children were 9 and 4 years old, today they are 14 and 9 years old, and today the Authority wants to tear them away from the only country they know and from all the significant anchors in their lives, including their friends, and significant parental figures. This was after the authority itself dragged the decision for more than four years.
In summary, the PA, in violation of its duty to act efficiently and quickly, harmed the best interests of the children and violated Israel's obligations under the Convention on the Rights of the Child. I will note that the time that elapsed between the submission of the summaries and the issuance of the judgment also contributed to this, and for that I apologize.
Violation of the Duty of Equality - How to Examine the Best Interests of Children Proceedings before the Authority
- From the duty of fairness to which the authority is obligated, the duty to act with equality is also derived. In other words, in the case before me, the duty to act with equality in examining the best interests of all the children whose matter comes before the authority. The Authority does not act in this matter according to an orderly procedure, and its procedures prescribe different provisions in various contexts in this matter. The Authority was given an opportunity, in this and other proceedings, to formulate such a procedure, while emphasizing the importance of formulating it in order to meet Israel's obligations under the Convention on the Rights of the Child. So far, this has not yet been done, and even in this way, the Authority violates its duties as an administrative authority, as well as its obligations under the Convention.
- As stated above, in my decision of May 21, 2023, I determined that the authority must establish uniform procedures for examining the best interests of the child in matters brought before the authority. I noted that the establishment of appropriate procedures is important for the purpose of examining the best interests of the child; In order to avoid raising arguments against the process of establishing the factual basis in the appeal proceedings, and also so that the Authority will act equally and uniformly in formulating decisions regarding children brought before it, in any application whatsoever. Since the authority has refrained from examining the best interests of the child for a number of years, in accordance with the opinion on the manner in which the best interests of the child are determined, and in accordance with the provisions of the Convention, I have determined the conditions under which the authority must examine the best interests of children (based on those opinions and the provisions of the Convention in this regard). I determined that the best interests of the children require that the interview be conducted by a social worker who is qualified to care for the children; will be held in their natural environment, in the presence of their mother or another companion of their choice, separately from meetings with the mother for other needs; take a reasonable amount of time to create trust; Prior information will be provided regarding its purpose, location, duration, participants, and any other details that can reduce anxiety and enable the best interests of the children to be safeguarded within the framework of the clarification process itself.
- Following this decision, and in the course of conducting the proceeding before me, another matter was heard before me, the Administrative Appeal (Tel Aviv Administrative) 18633-07-23 Ibrahim Kunda v. Ministry of the Interior (unpublished, decision of August 3, 2023, hereinafter: the Kunda case in the District Court), where I also instructed the Authority to examine the best interests of the child, and referred to the manner in which my decision in this case should be examined. In that case, the child was an Israeli citizen, and his best interests were examined because the PA wanted to remove his father, who was a foreign citizen. The Authority filed an application for leave to appeal to the Supreme Court in the Kunda case, arguing that there was no reason to examine the best interests of the child as I had determined. In a short judgment, it was determined on the same matter, by consensus, that the best interests of the child would be examined in that case according to the procedure of the Humanitarian Committee, and the question was not decided on its merits.
- Another issue in which the Authority's duty to examine the best interests of the children arose was in an administrative appeal (Tel Aviv-Jaffa Administrations) 47371-10-23 Osman A.M. Population and Immigration Authority, Ministry of the Interior (Nevo, December 1, 2024, hereinafter: the Osman case). In the Osman case, I referred to the Supreme Court's decision in the Kounda case and determined that the procedure to which the Authority referred in the Kounda case (the procedure that was in effect at the time of the judgment in the Osman case was updated to the date of the judgment on December 1, 2024), does not meet Israel's obligation under the Refugee Convention. And this is what I determined there (paragraph 184 of the judgment, an application for leave to appeal is pending before the Supreme Court):
"As we shall see, the procedure referred by the PA in the Conde case does not meet Israel's obligations under the Refugee Convention. The judgment stated that the best interests of the minor there would be examined according to the "procedure of the humanitarian committee," but did not explicitly specify which procedure was involved. It appears that this is the procedure for handling applications for special humanitarian status (Procedure 5.2.0022; last updated 4.12.2023). However, this procedure does not determine how the best interests of the minor will be examined. However, the procedure states, in section 10, that if an application for status on humanitarian grounds is not rejected outright, the applicant must be scheduled for an interview in order to clarify the alleged humanitarian circumstances. The Humanitarian Committee's procedure refers in this regard to the procedure 5.1.0013, the procedure for conducting interviews (last updated as of 31 August 2016). The procedure for conducting interviews stipulates that interviews in the Authority will be conducted fairly by the Authority's employees in the Authority's offices. The procedure stipulates that the interviewee will be given a fair opportunity to voice his claims. As for minors, the Interview Ethics Procedure in section E.2 stipulates that the interviewee will be accompanied by a parent or guardian. However, Section E.3 states. that "the escort is forbidden to intervene during the interview, and this will be clarified at the beginning of the interview. Any intervention by the escort will be documented by the interviewer, and in the event of intervention by the escort, the authority employee may remove the escort from the place where the interview was conducted." This section does not qualify for the case of minors. Therefore, according to the procedure for conducting interviews as he put it, in such a case there is a possibility that a minor will be left alone in front of a representative of the authority. This is contrary to the law and the convention. In any event, in the cases before me, it was not noted that interviews with the children were conducted even in this manner.