Groundbreaking Ruling by Supreme Court Set to Toughen Adoption Procedures in Israel

Court rules that biological father who wasn’t aware of his baby's existence should be granted custody of child, who had been adopted by a family.

Baby
David Goldman/AP

An expanded panel of five Supreme Court justices ruled this week that a baby boy who had been adopted by a family without the biological father’s awareness of his existence must be given to the biological father.

The ruling is expected to trigger a change in procedures followed by both the Social Affairs Ministry and family courts. Pre-adoption investigations are now expected to be considerably more thorough.

In their consideration of the case, the justices were highly critical of social welfare authorities, and took Ashdod Family Court to task for approving the adoption.

The case before the court involved the decision of a young mother to put up her baby boy for adoption without the knowledge of the child’s father. The father later demanded custody of the child and claimed he had not known the child was born and was not a party to the decision to have him put up for adoption.

The court in Ashdod decided to leave the child in the custody of the family that adopted him, and it was this decision the Supreme Court has now reversed.

According to Israel’s adoption laws, social welfare authorities are obligated to ascertain the identity of the biological father of a child up for adoption, even if the biological mother doesn’t wish to disclose the information. The court can bypass this requirement, however, if there is no reasonable possibility of “identifying the father, finding him or clarifying his opinion.”

The law also provides that before issuing a recommendation on an adoption, the welfare authorities must examine information in their possession, as well as in the Population Registry, to verify that no one approached the registry claiming to be a parent or other close relative of the child.

The panel, consisting of Deputy President Elyakim Rubinstein and justices Esther Hayut, Neal Hendel, Hanan Melcer and Yoram Danziger, ruled that the social welfare authorities should have interpreted the obligation to examine information in their possession more broadly, rather than making do with a search of official databases. They are required to take more proactive steps to find the father, the court said – including, for example, a search of social networks.

Melcer, who represented the majority opinion on the panel, wrote, “The social welfare authorities did not exhaust all of the actions required of them. As I see it, the social workers and the legal counsel have a duty to perform examinations, as well as other independent actions.”

The Supreme Court has established new standards for the conduct of family courts, too. Up to now, they made it a practice of confirming the decision of social welfare authorities without extensive hearings. The Supreme Court ruled that Ashdod Family Court should have held a comprehensive hearing in the case at hand, and should have considered the positions of the parties in depth and also verified that the welfare authorities did enough to locate the father.

“Without holding a hearing, the court was not able to fulfill one of the significant roles it is required to fulfill as the party that should be providing oversight over the actions of the welfare authorities,” Hayut wrote.

Shmuel Moran, the lawyer for the biological father, said the majority opinion of Melcer “clarifies the need for caution” on the part of the courts and the welfare authorities.

Family law experts said the Supreme Court has now narrowed the possibility of adopting children without locating the father and obtaining his consent. Prof. Shmuel Triger from the College of Management Studies said the ruling contained implied criticism of “the disregard for fatherhood in the outlook of the welfare [authorities] and the family courts.

“You can view the battle of the father who took his appeal as far as the Supreme Court in a broader context of men in Israel who in recent years have been fighting to be active fathers in their children’s lives,” he added. “The welfare authorities have not yet caught up with the social changes.”

Lawyer Ronen Dlayahu, a member of a state panel that examined the adoption laws, said the court’s ruling shifts the balance in the adoption process from the best interests of the child to the interests of the biological parents.

“The significance of the ruling is that in every similar case in the courts, more far-reaching steps will be required regarding the social welfare service to verify that efforts were made to locate and inform the biological parents.”

Dlayahu added that this is not always possible.