Adoption of Children
The laws of adoption embody procedural matters, but mainly deal with the sensitive matter of adoption. There is no doubt that in the field of family law, children’s adoption laws are among the most complex, sensitive and certainly the most satisfying.
It should be noted that the law of children adoption deals only with one issue: the manner in which a child who has been declared adoptable passes from his biological family to an adoptive family, whether in the state of Israel or in inter-country adoption, under the supervision of the Family Court.
The adoption field raises many legal questions, such as how can one adopt in Israel, including the adoption of orphaned children in Israel, and what is the law with regard to the mother who wishes to send her children for adoption, what is inter-country adoption and many other questions, all of which will be discussed in the following article.
The article is not in any way a substitute for individual legal advice. For this purpose, you can contact our office to arrange a consultation meeting.
What law deals with the adoption of children in Israel?
In the state of Israel there is one law dealing with adoption. It is names the Adoption Law 5741-1981. In accordance with the Adoption Law, a basic principle is defined in section 1 of this law, which stipulates, inter alia, that adoption in the state of Israel will be done only in accordance with an order given by court, at the request of a parent who wishes to adopt another child, or at the request of the Attorney General, who wishes to declare a certain child as “adoptable”.
Another basic principle in accordance with section 1 (b) of the Adoption Law is that the court will always consider the best interest of the child, within the framework of the adoption order. In order to illustrate this, please see the full quote of the statutory provision: “When examining the best interests of the adoptee in decisions regarding the adoption proceedings, the rights, needs and interests of the child shall be taken into account, including the right to stability, and including reducing the transfer of the child, as much as possible, between frameworks or between families. If the adoptee can speak and understand the matter, his/her will and opinion regarding that matter shall also be taken into account. “
Another basic principle in accordance with the Adoption Law is that only a minor under the age of 18 years can be adopted. Since according to Israeli law, a person who has reached the age of 18 is no longer a minor but an adult fully qualified with rights and obligations.
Which court is authorized to deal with adoption?
Adoption matters are regulated by the Adoption Law, where the exclusive jurisdiction to deal with matters under the Adoption Law is the Family Court. Article (1) (6) (h) of the Family Court Law, 5755 – 1995 stipulates so. In accordance with the Adoption Law, decisions of the Family Court may be appealed to the District Court, and then to the Supreme Court.
A number of principles in the field of adoption law
Up to now I have presented two basic principles of the Adoption law. I will now review the main principles of this law so one can comprehend in a better way:
Principle No. 1
The basic principle mentioned above it the best interest of the adoptee. Only if the court is satisfied that this principle is fulfilled will it order the issuing of an order to adopt. There is no doubt that removing a minor from his/her home and transferring him/her to an institute of another family is an exceptional action that involves many considerations, not only legal ones but mental and emotional ones too.
Therefore, the court must take into account the possible harm to the minor and where it will be better for the minor later in life. In the words of the Supreme Court, with regard to the best interest of the minor in the framework of adoption proceedings: “The concept of ‘the best interests of the minor’ is a general and broad concept, and the courts are required from time to time to pour content into it and to formulate criteria for its implementation in an actual case being discussed … When it comes to the implementation… on a specific case before it, the court is repeatedly forced to work very hard… Each case has its own life story, and in each and every case, the court is presented with a relationship that is unique to the litigants before it … The decision on the question of what is the’ best interest of the minor ‘in the concrete case requires examination of delicate and complex matters relating to the soul.
My conclusion is that the best interest of the child (the minor) varies from case to case, and the role of the court is to cast content in this term, according to the circumstances of life and the matter before it.
Principle No. 2
Another principle that relates to the laws of adoption is the principle of non-conversion. In other words, in accordance with section 5 of the Adoption Law, it is not possible to adopt a minor in to a family that is not of the religion of that minor. In other words, if the minor was born as a Jew, then he/she cannot be transferred to an adoptive family of the Christian or Muslim religion, and vice versa. In other words, according to the principle of non-conversion, the child’s religion is preserved within the adoption process and should not be harmed.
Principle No. 3
Another important principle in the field of adoption relates to the rules that bind the adoptive parents. In other words, Article 3 of the Adoption Law states that adoption can only be done by a husband and wife, that is – a man and a woman. However, the court has the power to order a deviation from the rule in special circumstances. For example, section 3 (1) of the Adoption Law provides that the court may allow a spouse of a parent to adopt his child. This is also true in accordance with section 3 (2) of the Adoption Law, which provides that the court is empowered to order an adoption order in favor of a relative of a minor whose parents have died. For example, his/her uncles or grandparents.
Principle No. 4
The next principle is the principle of the test period. I, e., according to the Adoption Law, the court will not order an adoption order, unless it is satisfied that the minor was in a test period with his/her adoptive parents, that is, the parents who wish to adopt it. The purpose of the probationary period is to enable the minor to get used to and integrate (inter alia, to examine his integration, if at all) within the adoptive family, which sometimes also has children of its own.
Typically, this test period is expected to last for six months or more, depending on the need and the circumstances. The purpose of the principle of the probationary period is to implement the basis of the laws of adoption, namely, sensitive conduct and a careful examination of the best interest of the child. Unfortunately, a situation can arise in which the adoptive family of the minor and the minor himself will not be suitable for each other. Therefore, adoption issues are made, in advance, with small and careful steps. The probationary period prescribed by law is in fact an application of the same sensitivity required in adoption proceedings.
Principle No. 5
A fundamental and important principle in accordance with the Adoption Law concerns the age of the adoptive parent. In accordance with Article 4 of the Adoption Law, the adoptive parent must be more than the adopted child by at least 18 years. At the same time, the court has the authority to deviate from this rule, in the case where adoption is requested by a spouse of a biological parent of a minor.
Principle No. 6
Another important principle of the Adoption Law is the principle of the consent of the adoptee and hearing of his arguments. In the past, the attitude toward children was formal and indifferent. The view was that minors do not necessarily understand the legal implications of certain procedures and therefore their position should not be given consideration. But the society has changed, as have the laws and the general approach to treating children. Today, the right of children to express a position before the court, especially within the framework of adoption proceedings, is a matter of customary practice, with certain limitations.
From the general to the specific – Article 7 of the Adoption Law states that if the age of a minor is greater than 9 years, then the court must hear the minor’s opinion before issuing an adoption order in his case. If a minor is less than 9 years old, but a social worker and the court feel that he/she is a wise minor who understands the meanings and proceedings in his/her case, the court has discretion to allow the minor to express his/her position. As stated, this approach is consistent with the prevailing social perception that children are entitled to legal obligations and rights and should not be disqualified only because of their age.
Article 7 of the Adoption Law defines cases in which the court can deviate from the above-mentioned rule, i.e., from granting the minor the right to express a position before the court. The court’s authority to deviate from the said rule can only be fulfilled if the following conditions are met: The minor does not know that adoption proceedings are taking place regarding him/her (this condition mainly refers to young minors or in the case of adoption of infants) and when the best interest of the minor requires to refrain from allowing him/her to express a position in his/her case before the court (For example, when a fast adoption order is needed because of concern for the security of the minor, etc.).
Interim summary: The adoption area is a very sensitive area and therefore, the court is required to be very sensitive and cautious in the adoption process. Therefore, there are several basic principles of the Adoption Law that embody the need for sensitivity and caution. These are rules that integrate with the basic approach of the Adoption Law, according to which the court is the supervisor of these proceedings.
How does the adoption process take place?
The rule according to the Adoption Law is that adoption can take place in two ways. In the case where a biological parent wishes to give his child for adoption for his own reasons, or in the event that the court declares, in accordance with the application submitted to it, a minor as “adoptable”. I will review these two ways, as follows:
Declaring a minor as “adoptable”:
The authority to declare a minor eligible for adoption is reserved only to the Family Court. This authority is expressed in a number of possible cases. The first case is the more obvious case in which the court deprives the minor’s parents of their guardianship because of parental incapacity (for example, when parents are addicted to drugs or have a disease that does not allow them to raise their child). Another case is the case in which the parents actually abandon their child. For example, when it comes to adopting abandoned babies. In other words, when after the birth, the mother or both parents wish to give the child for adoption (for more details, see below). If the court finds that it is appropriate to order that the minor be declared as adoptable, this will be done. Later, actions will be taken to find a foster family for the minor, in the hope that in the future he/she will find a permanent framework in the form of an adoptive family.
Parent’s request for giving a child for adoption
Another option for a child to be adopt is when a parent wishes to do so, whether it is a single parent or a couple who wish to give their child up for adoption at a certain age or after birth. In such cases, section 8A of the Adoption Law states that the consent of the parent to give the child for adoption must be an informed consent. In addition, if the parent (or parents) wishes to give the child for adoption, he/she/they must be allowed a period of 7 days, within which he/she/they can change his/her their mind. The court has discretion and can shorten the waiting period in exceptional cases (for example, when there is a danger to the baby’s safety). As for the informed consent required by the parent, the court can revoke the consent given and determine that the child will not be taken from the parent in cases where there is a suspicion that the parent’s consent and request for the child’s adoption is due to coercion or fear from a third party.
In a case were a parent, after the child’s birth, wishes to give his/her child for adoption, a social worker who handles the case has a number of requirements. Among other things, the social worker must provide the parent with a wide range of details regarding the adoption. He/she must also explain to the parent the implications of the adoption, and he/she must provide the parent with information about the possibility of raising a child alone, the rights and entitlements granted to a single parent, etc.
Furthermore, the social worker must explicitly explain to the parent the significance of the adoption in full, as well as the possibility that in the future, the child who is being put up for adoption may examine the adoption file. Note that the opening of an adoption file can be done when the minor reaches the age of 18.
What is the ruling when there is no connection with the father?
A difficult question arises in cases where a child is asked to be given up for adoption by the mother, and the father cannot be located. The situation could be as follows: a mother gives birth to her biological son in the hospital and after the birth, due to personal or mental distress, she wishes to give her child for adoption. All the while, the father is not even aware of the fact that the mother gave birth and he has nothing to do with her. An even more difficult question arises in cases in which the mother refuses to give the father’s details, either because of lack of will or, heaven forbid, for fear of harm.
Note that the non-disclosure of the details of the other parent has been an issue that has accompanied Israeli law for many years. Thus, for example, in the case of the “quarrel-baby” in the early 2000s, when it was only a posteriori that the father learned that the mother had given birth to her son. Even recently there was a similar quarrel in which the circumstances were similar. In both cases, after examining the best interest of the child, under the circumstances, the Supreme Court determined that the child would remain with his adoptive family.
But the questions still arise, what is the law in such cases and what is the duty of the “system” in a case where the mother asks to give her child for adoption, without giving the father’s details?
Section 8C of the Adoption Law states that the social worker must explain in detail to the mother the reason for submitting the father’s details. The Adoption Law also stipulates that the social worker must try to locate the father, even if only to find out that there is no medical impediment (for example, a genetic problem that needs to be documented for the future). The Adoption Law requires a social worker to try to locate the father by “reasonable means.” In other words, examine the population registry and try to locate him through the welfare authorities, or through any other information, reasonable and accessible. On the other hand, the Adoption Law states that in some cases, an attempt will not be made to locate the father, for example, in the case of incest or bastardy, or when the pregnancy is due to rape. In addition, an attempt will often not be made to locate the father, if there is evidence of his knowledge of the pregnancy and his lack of desire to have any connection with his child.
When an adoption order is issued – what are the implications?
If the court declared a minor as adoptable and after an interim period in which it was found that an adoption order would be in the best interests of the minor, the court would order the issuing of an adoption order in favor of the adoptive parents. The meaning of the adoption order is that the adoptive parents are the parents of the minor from now on, with all that this implies. In other words, an adoption order, in accordance with article 17 of the Adoption Law, is the moment when the adoption process is completed.
What is an inter-national adoption?
Inter-national adoption is the adoption of children abroad, which is also carried out in accordance with the provisions of the Adoption Law. The Adoption Law provides that a central authority shall supervise and engage in inter-national adoption. This authority will oversee the non-profit associations that assist Israeli citizens when adopting minors in foreign countries. These associations must be legally registered in Israel.
From the general to the specific – An Israeli family that wishes to adopt a child abroad should contact an association from the associations that are involved in this activity. The association should examine the parents’ qualifications, for example, in terms of previous criminal records, age, employment, parental ability, etc. It the association finds that the parents are eligible to adopt a child abroad, then a request will be made to another authority in a foreign country, according to the matter and the parents’ wishes, and the authority in the other country will assist in finding the adoptable minor. If a minor is found for adoption and is brought to Israel, then the Minister of the Interior must approve the entry of the adoptee. In addition, after the adoption order is issued in Israel, the association must also supervise the child’s future growth. Of course, the Israeli court will order the issuing of an adoption order in accordance with the guidelines in the Adoption Law, as noted above. That is – in accordance with the best interests of the minor.
What is a custodian?
As part of the adoption process, the court has the authority to appoint a guardian for the adoptable child, even before he/she is declared adoptable. That is, a person whose job is to represent the interests of the minor only. This is stated in Article 23 of the Adoption Law. In addition, the Adoption Law states that the court must give weight to the guardian’s position, provided that his claims represent only the best interest of the minor and no other hidden interest.
There is no doubt that the adoption process is one of the most intriguing and interesting issues in the field of family law. A family lawyer who deals with adoption requires a great deal of experience, tolerance, and especially sensitivity. If you want to adopt a child or are in the process of adoption, it is very helpful to have a family lawyer with specific experience in this area.