Traditionally, what is in the best interest of children has been decided by parents or experts.35 Our main problem is that with respect to Article 3, the best is not enough, linked with Art. 12 (taking the opinion of the child into account). Also, in Israel, the best interests of the child concept has undergone an evaluation into a legal principle.
Israeli authorities have generally exhibited a caring, if paternalistic attitude towards the concept of the best interests of the child. The rights of the child were discussed in detail in the Israeli Supreme Court after ratification of the Convention was in Anonymous v. Anonymous36 (1993). The court gave an extensive discussion on the concept of the best interests of the child, and recognized, for the first time, the importance of the child’s rights within the concept of the child’s best interests, finding the two ideas intricately linked.
One of the main problems with Article 3 is that it is still implemented in a paternalistic way, and the link with Article 12 (to take the opinion of the child into account) is not made. DCI -Israel lawyer, Gal Torres, who works in the family courts, reports that sometimes the judge in her region invites the child for a talk in the judge’s chambers, says what he thinks should be done, and then writes down that the child agrees with the arrangement. In family law however, a child (either him/herself or via a friend and not necessarily via his/her parents) can petition the judge. In other areas of Israeli law this is not yet possible.
Claiming that we hold a legal system where the child is protected from threats to his welfare, with the benefit of the child as the critical consideration of the child as the critical consideration-has a very weak significance/validity, since this protection is exposed to the ideological biasing of the ‘best interests of the child’ principle, by the decision-makers. Therefore, it seems reasonable that a society that is truly interested in protecting the benefits of the child will provide him the opportunity to express his personal preferences and priorities. And it is reasonable that there should be positive correlation between the weight given to these priorities and the true competency of the child for making decisions on questions concerning him.
We propose a change in the law that specifies when not to consult children. For instance, when parents are divorcing and when it can be expected that when the child expresses a preference to live with one parent, the other will break off relations with the child.
The State also only thinks about the best interest of the State and not of the best interest of the child when it recruits minors as informers. We are especially concerned that when discovered, the life of a Palestinian child collaborator is in danger. Danny Rubinstein wrote:
“There is an extensive network in the West Bank and Gaza Strip that hunts down collaborators. The Israeli targeted assassinations against terrorists, since the start of the intifada, have given rise to waves of suspicion and rumors among Palestinians that collaborators must be working on behalf of the Israeli intelligence. The rumors gained in strength as the targeting became more accurate. A few weeks ago, for example, a youth in Ramallah was caught spraying the car of a Hamas activist with a chemical substance. According to the rumors, this substance made it possible for Israeli helicopters to target the vehicle and blow it up.37”
In April 2002, a Palestinian Military Court sentenced the 15 year old Abdel Khalim Hamdan from Khan Yunis to death for collaboration with the Israelis, but the sentence was converted to 15 years of hard labor because of his age.37a Another problem with Article 3 in Israel, is that Rabbinical Court Judges gives (“in the best interest of the child”) preference to a religious parent. A good example was provided by the Na’amat women’s organization’s branch in Haifa. A man with a history of violence (who had thrown his baby out of a window, although the baby survived) and had a history of beating his wife as well, claimed in the Rabbinical Court that his wife had become Christian. Both man and wife were Ethiopian. This accusation (we think an attempt by the husband to prevent guardianship being given to the woman) shocked the Rabbinical Court judges, who asked the woman to place her children in a religious Jewish school, to prove that she was Jewish (which she did). The Rabbinical Court would have given guardianship to the father if she had refused, although they realized that he was not really fit to have guardianship (in that case he had to place them in a boarding school). Such cases will, when brought to the Supreme Court, be corrected by them, but it causes hardship for many years.
A case on which DCI-Israel gave advice is that of a secular man whose religious wife has not agreed to a divorce. The couple has a three-year-old child who lives with his mother in a religious neighborhood. The mother turned to the Rabbinical Court requesting that visitation by the child not be on Shabbat or on Jewish holidays, because the father does not observe them. The Rabbinical Court agreed that, in the best interests of the child, “in order not to harm the child with double messages that can harm his internal development…in the meantime the father shall take the child on Thursdays.” A similar case appealed in the Supreme Court resulted in an opposite decision.38
The Rabbinate has a list of “mamzerim,” a term in the Torah for a person born out of an adulterous relationship, who, according to Jewish law can only marry another “mamzer” or a convert. This principle applies for ten generations. They also have a list of “safek mamzerim” or “possible mamzerim,” Jewish people of these categories can only be married by Jewish law if they are of the same categories.
The New Family organization has pointed out to us that many people are forced to cheat to get themselves or their children out of this classification, “in the best interests of the child.”
The New Family Organization gave an example of their cases: a woman decided in agreement with her husband after two weeks that they should go their own ways. It was a mutual decision that they didn’t want to continue with the marriage. Only after a year, did the woman decide to file for divorce, when she found another man. During the six-month long divorce process, she got pregnant with her new boyfriend. The Ministry of the Interior (headed by Ultra-Orthodox Jews) said they could avoid that the child would be classified as a mamzer, (or as having come out of his mother’s relationship with another man while she was married). The baby was born only one month after the divorce, and not the permitted three months. The woman’s ex-husband could, in that case register the child as his, and then be adopted by the boyfriend/father.
In a non-related topic, the New Family organization has raised concern that there is another common practice which they find not in the best interests of the child. The Jewish Agency and the Ministry of Immigrant Absorption bring children (mostly teenagers) to Israel from countries such as Ethiopia and the Former Soviet Union, and place them in residential boarding schools. The New Family Organization is concerned that this is not always in the best interests of the child because often the non-Jewish parent is not allowed to live in Israel.
DCI- Israel Advisory Board Member Professor Leon Sheleff (of the Faculty of Law of Tel Aviv University) raised the issue that it is not in the best interests of the child to live in settlements where there is great danger of being attacked by Palestinians, in the Knesset Advancement of the Status of Children Committee.39 He pleaded that these children be placed by their families and in foster families, kibbutzim, or boarding schools or families living in a safer place. It should be noted, however, that this not an issue of debate in Israeli society.
Expenses related to women cannot be deducted from taxes. We support the efforts of Women’s organization, Na’amat to change this, because such a proposed change (for which there is not yet government support) in the rules of taxes will be in the best interests of children. As things now stand, parents might take cheaper daycare by unrestricted crèches for their children because they cannot deduct the expense from taxes. In these cheaper daycare facilities, the provider does not provide receipts and there is no supervision by the Ministry of Labor and Social Affairs. We believe that it is in the best interests of children that the best daycare available, with the highest standards can be chosen by the parents, and daycare should become tax-deductible.40