As a result of ACRI’‘s intervention on behalf of the couple, the Chief Legal Counsel of the Ministry of Labor and Social Affairs, after examining the case, stated that there is no reason to prevent the couple from initiating the adoption procedure. She further added that, if the couple proves to be suitable candidates to adopt, there should be nothing to prevent them from receiving a child for adoption, providing that the Palestinian spouse has, in his possession a residency permit for 8 months after the date that the child is handed over to the couple, which would allow him to complete the adoption process.
The following is a copy of the letter that was sent by ACRI Attorney, Oded Feller, to the Ministry:
To:
Mrs. Ella Blass
Head of the Child Welfare Department, Ministry of Social Affairs,
Mrs. Batia Artman
Chief Legal Counsel
The Ministry of Labor and Social Affairs
Re: The processing of the adoption application for a couple in which one of the partners is currently undergoing a naturalization procedure to receive permanent residency status in Israel – the case of couple A’‘
The Association for Civil Rights in Israel (ACRI) was made aware that the Child Welfare Department is refusing, in principal, to initiate the processing of adoption application for couples in which one of the partners does not have permanent Israeli residency status, and who is undergoing the naturalization procedure.
Couple A’‘ are victims of this policy. The female partner, an Israeli citizen, is currently 45 years old and the male partner, originally from Jenin (in the Occupied Territories), is 43. The couple has been married for ten years. Mr. A has worked in Israel since the age of 16 and has lived in Israel continuously since his marriage to his partner. They have no children.
In 1995 the couple submitted a residency application to formalize the status of Mr. A’‘ in Israel. As is common practice, the Ministry of the Interior took several years to authorize the couple’‘s application. In 2001 Mr. A’‘ was issued with a residency permit for the first time. The permit has since been subsequently renewed every few months. As a result of the government decision 1813 in May 2002, and later following the amendment to the Law of Citizenship and Entry into Israel (Temporary Order), 2003, which prohibits the granting of formal residency status to Palestinians in Israel, Mr. A’‘ cannot complete the naturalization procedure to formalize his status, and must rely on the only other option which is the continual extension of the aforementioned residency permit.
In April 2005, the couple turned to the Child Welfare Department to request that they be considered as candidates to begin the procedure to adopt a child. After receiving a negative response by telephone, on 12.1.06, they also received a written response. In the letter that Mrs. A’‘ received, she was informed that: until the issue of Mr. A’‘s Israeli residency status has been resolved, the procedure cannot be initiated. The letter further asked her to, please update the authorities of any changes in his status, which would enable them to begin, as quickly as possible, the processing of the application.
The position adopted by the Child Welfare Services fatally undermines the couple’‘s right to parent and to family life. The couple cannot have children naturally and are therefore subject to great distress. It is clear, that in light of the current situation, which does not allow for Palestinian couples to gain formal permanent residency status in Israel, and only allows them, in the best case, to extend temporary residency permits, that the practical implications of the services’‘ decision regarding the couple, is an open-ended refusal to initiate the adoption procedure, in other words an outright and sweeping refusal to process their application.
Moreover, the couple’‘s age further exacerbates the impact of the denial. The adoption procedure, in all cases, places great weight on the question of the age of individuals wishing to adopt. The passage of time will only weaken the chances of the couple’‘s ability to comply with the required criteria.
It appears that the position of the Child Welfare Services, which is preventing couple A’‘ from beginning the adoption procedure until the formalization of Mr. A’‘s permanent status, is based on Section 28 of the Adoption of Children Law, 5741-1981, which states that “the Israeli court system is only authorized to deliberate on this law in the event that the adoptive parent is a resident of Israel”.
It is patently clear that the reliance on section 28 of the Adoption of Children Law as a means of rejecting the couple’‘s adoption request is fundamentally erroneous, and is based on a mistaken interpretation of the term “resident”. The term “resident” has different and non-uniform meaning in the different laws in which it appears. In the majority of judicial disciplines, and in particular, family law, the term “resident” is used to describe an individual who exhibits a substantive attachment to Israel, in other words, an individual for whom Israel is the center of his/her life. It is entirely possible that an individual’‘s bond with Israel has no relation to his/her residency status, or the fact that Israel represents the center of the individual’‘s life.
ACRI further wishes to emphasize the fact that in the event that the legislator is required to determine that the term “resident”, for a specific case, relates solely to any person in possession of an Israeli residency permit – he/she does so within the framework of the law (see for example, Section 2a of the National Insurance Law (Consolidated Version), 5755-1995). Even the provisions of the adoption law differentiate, with regard to this issue, between adoption within Israel, for cases that pertain to Section 28 of the law, and intercountry adoption, which is covered by Section 28f of the law. Whereas Section 28 of the law refers to the issue of a “resident”, Section 28f of the law clearly states that a resident in the case of intercountry adoption is an “Israeli citizen, or someone who has been granted an immigrant status, immigrant certification or a permanent residency permit who has lived in the country for at least three years of the five years that preceded the submission of the application, or at least 10 months of the 18 months that preceded the submission of the application”. The absence of a literal definition, as previously stated, of the term “resident” within the framework of the regulations stipulated in Section 28 of the law, which deals with the issue of adoption within Israel, indicates, in and of itself, that the legislator did not wish to authorize adoptions solely for Israeli citizens, or individuals who hold permanent residency permits, but rather to include de facto residents of Israel, or those for whom Israel is the center of their lives.
There can be no doubt of the couple’‘s bond with Israel, or that it constitutes the center of their lives. As previously mentioned, it is not only Mrs. A’‘ that feels such an attachment, but also Mr. A’‘ who has worked in Israel since the age of 16, 23 years ago, and who has, since his marriage to Mrs. A’‘ ten years ago, lived in Israel.
However, there is no legal basis upon which to condition the couple’‘s right to initiate the adoption procedure due to a change in the residency status of Mr. A’‘. Their request must be examined on its own merits. We therefore respectfully request that you instruct the district Child Welfare Services to allow the couple to begin the adoption procedure.
We also request that you instruct the state Child Welfare Services not to condition the right of a couple, which is comprised of one member that has permanent residency status, and another member who does not have permanent residency status, upon the formalization of the latter’‘s status.
We would be grateful if you could provide us with a hasty response, as this would enable us to consider our subsequent actions.
Yours sincerely,
Adv. Oded Feller
last updated : 17/10/06
