In the past three years, public defenders represented around 30 asylum seekers in juvenile courts in cases involving the removal of children from their homes. Officials in the Justice Ministry, which operates the Public Defense, said these legal services were rendered “on the basis of internal ministry agreements,” but a number of support organizations for refugees and asylum seekers in Israel said they were completely unaware that their clients were eligible to receive legal aid from the state.
Staff members in other organizations said they had the impression that all such aid was provided “under the radar,” with no clear criteria for eligibility – mainly to avoid criticism from former justice ministers Amir Ohana and Ayelet Shaked.
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“We can assume the aid providers’ intention was good, but it’s hard to accept the fact that parents and social workers involved in these proceedings didn’t know about it,” said a source in one organization. In a meeting early last year with refugee aid groups, an official in the judicial system mentioned the difficulty of handling dozens and hundreds of juvenile proceedings when their parents had no legal representation and were ineligible for public defense.
According to Justice Ministry data given to Haaretz, 33 parents without status in Israel were assigned public defenders since 2017. According to the Social Services Ministry, in each of the past three years some 250 minors without an Israeli ID were in boarding schools, group homes and other residential facilities after being removed from their homes by court order.
In 2016, human rights groups petitioned the High Court of Justice to demand that the Public Defense be ordered to resume providing legal aid to foreign nationals.
In its response to the court, the state noted that while the law does not explicitly say whether only Israeli citizens have a right to a public defender, the rendering of legal aid to foreigners in matters involving forced hospitalization, victims of slavery and human trafficking as well as “proceedings of the Youth Law” is “core to human rights.” In light of this admission and the state’s promise to advance legislation on the matter, the petitioners withdrew their petition in late 2018.
In September 2018, a government bill sponsored by Shaked was approved by the Knesset in the first of three mandatory votes, but the dissolution of the legislature and the three general elections that followed stalled its passage. It should be noted that the draft law made no mention of legal aid for the parents of at-risk children.
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According to sources familiar with the details of events within the Justice Ministry, after the legislative process was suspended, the ministry sought other ways to effect the promises made by the state. They said Shaked approved this move. The former justice minister told Haaretz she had tried to “regularize the matter in law. I didn’t think legal aid should be given to infiltrators in all matters, rather only in the most exceptional cases.”
A senior government source said no effort was made to “downplay” the state’s legal aid to asylum seekers, and that the lack of publicity was “part of a basic policy of barely publicizing how various groups in the population can exercise their rights.” He added that an agreement was reached with the Social Services Ministry under which social workers were to distribute a document to parents instructing them to check their eligibility for a public defender. Staff members in that ministry said every family called into juvenile court receives the document. But others ‒ including social workers in large cities and in the justice and social services ministries, as well as a few of the aid organizations that petitioned the High Court ‒ say the information does not filter down to the field.
“The change in policy was not published anywhere and the parents didn’t know they were eligible for representation, and representatives of social services referred them to us,” says Rachel Friedman, a lawyer with HIAS (formerly the Hebrew Immigrant Aid Society), an international aid organization that focuses on legal aid. “When it comes to removing a child from their parents’ home, the most dramatic form of state intervention in a family, representation in the proceedings is critical,” she says. “As soon as the parents have a voice in the court, one can present significant considerations and find less destructive alternatives. In cases where we provided representation, we saw how the interest of the parent-child bond was preserved.”
Staff members in a different aid organization said that while they occasionally came across public defenders in juvenile proceedings involving asylum seekers, “We didn’t manage to determine the conditions for receiving [such aid]. No one really knows. Our impression is that the representation is given due to personal ties and not as a basic right.”
The aid is given “under the table,” another source said. “No one has an interest in talking about it, whether because they don’t want to annoy the cabinet ministers who are attentive to the pro-expulsion activists or because they fear jeopardizing the little help that is given.”
In a statement, the Justice Ministry said the government bill was stalled due to the dispersal of the Knesset. “Since then, legal representation [for foreigners] is given on the basis of intraministerial agreements, and is slated for inclusion in changes to the draft law in preparation for its deliberation in the new Knesset.”