The Department of Legal Aid firmly believes in the importance of childrens' rights, especially defending those rights through legal representation. Therefore, special importance is granted to legal representation by legal aid in this area. The aid is granted to both parents and children, including their independent legal representation, once it has been found that they have fulfilled the conditions for granting of legal aid as set out by the Legal Aid Law, 5732 – 1972 and the Legal Aid Regulations 5733 – 1973.
In order to assist and with an understanding of the importance of the use of legal tools for the purposes of the protection of minors, for their voices to be heard and for the safeguarding of their rights, the right of minors to legal representation has been recognized.
The Capacity and Guardianship Law, 5722-1962 (hereinafter - "the Law") empowers the Courts to appoint a Legal Guardian (a Lawyer) for a minor who will represent him and his best interests in legal proceedings concerning his affairs. The Law also affords an opportunity to a minor, under the Family Court Law, 5755-1995, to apply in person to the Family Court. The Youth (Care and Supervision) Law, 5720-1960 (hereinafter- "the Youth Law") also grants power to appoint a legal guardian for a minor if it finds that this necessary in the best interests of the minor and for the protection of his interests.
Such recognition gathered pace with the accession, in 1991, of the State of Israel to the International Convention on the Rights of the Child and the appointment of a Committee by the Government of Israel in 1997 headed by Judge Saviona Rotloi, to examine fundamental principles in the sphere of the child and law and their incorporation into legislation (hereinafter: "the Sub-Committee"). The Sub-Committee took upon itself the aim of building a solid and complete legal structure which would enable Israeli Law, within a short time, to reach the situation in which the right to separate representation for a minor would be recognized, anchored in and applied in all civil legal forums and be consistent with the international norms embodied in the Convention.
Accordingly, in recent years the Courts in Israel have leaned more and more towards recognition that in many cases, separate independent representation for minors is essential for the proper conduct of the legal process in relation to their affairs.
Representation by the Legal Aid Department
In the spirit of the Convention and the conclusions of the sub-committee proceeding with its implementation, the Legal Aid Department has assigned itself the objective of establishing the status of minors and the promotion of their rights in the legal process, by providing professional and quality representation and advancement of rights.
The Legal Aid Department believes in the importance of children's rights in general and the protection of their rights by legal representation, in particular. Legal representation through the Legal Aid Department is accordingly of the utmost importance. The aid is provided to parents and children together, including separate and independent representation both for parents and for children, after it has been ascertained that they meet requirements for receiving Legal Aid in accordance with the criteria specified in the Legal Aid Law, 5732-1972 and the Legal Aid Regulations, 5733-1973.
Legal Aid is granted in proceedings taken in the Juvenile Courts and in the Family Courts and includes representation in the legal proceeding, preparation of court documents etc. Apart from representation in the proceeding itself, emphasis is also placed on representation in an "informal" process which is expressed inter alia, in guidance, advice and oversight depending on the type of process or proceeding.
The team of Lawyers of the Legal Aid Department consists of internal Lawyers working in the Legal Aid Bureaus and who are well versed in the juvenile field as well as outside Lawyers who are appointed by the Legal Aid Department to represent the minors and/or their parents, and who have the necessary and appropriate expertise, professional experience and sensitivity, to operate in this field.
The function of the Lawyers appointed on behalf of the Legal Aid Department is special in nature, because on the one hand they have to express the wishes of the minor (in so far as he is of an age at which he is capable of expressing his wishes) and stand ready to protect his rights as part of the process, and on the other, to take account of the personal situation of the minor and his care-related needs.
The Lawyers' task is carried out by maintaining constant contact with the various care-bodies such as: the Welfare Authorities, the assistance units attached to the Family Courts; youth sponsoring institutions and the Courts.
In order to promote awareness among the general public and professional parties about the rights to representation of parents and minors, the Legal Aid Department is active in the granting of Legal Aid by engaging in public information efforts and promotion of legislative processes. Likewise, assistance is provided by means of instructions and legal briefings both for the internal Lawyers and the external Lawyers, the holding of professional study courses in combination with professional parties and academics, Juvenile and Family Court Judges etc.
In 2008, there was a very substantial increase in the number of persons seeking Legal Aid in proceedings under the Youth Law and approximately 700 appointments were assigned to outside Lawyers for representation in such proceedings. Likewise, the fertile cooperation continued with the professional parties and bodies.
Representation in proceedings conducted in the Juvenile Court.
The sphere of Civil Law that is conducted in the Juvenile Courts has a unique feature. The Juvenile Courts work inter alia, under the Youth (Care and Supervision) Law and take steps by way of care and supervision, to ensure protection of the rights of the minor and the realization of his wishes.
The Legal Aid Department provides representation for minors and their parents in necessary proceedings means of care and supervision, including applications for removal of custody and placement, forced hospitalization etc., proceeding in the Juvenile Courts.
The work of the Department towards expansion of representation in proceedings in the Juvenile Courts constitutes a main influencing factor on proceedings and their outcome. The introduction of Lawyers of the Legal Aid Department to the Juvenile Courts provided solid content to representation. Currently, emphasis is placed on the wishes of the minor, protection of his wellbeing, furtherance of his rights, his needs and interests in legal proceedings that relate to him. Representation has proven to lead to the child being viewed as the central element and to decisions being made in his best interests in view of the special difficulties in the legal process with which he has to contend. Apart from representation, when necessary the Lawyers also act as intermediaries and mediators between all the parties involved - the parents, the children, the welfare entities and the Courts, and which directly contributes to collaboration and the commitment of the parties to the making of the optimum decisions in their best interests.
Ways of applying for Legal Aid in proceedings under the Youth (Care and Supervision) Law):
1. When the case of a minor is brought before the Juvenile Court, the Court refers the case to the Legal Aid Bureau which is situated in its area of jurisdiction, so that representation may be provided for a minor in the legal proceedings involving his case.
2. An independent and personal application by the parents and/or the minors.
A minor of appropriate age, who is capable of expressing his wishes, applies in person to the Legal Aid Bureau nearest to his place of residence and requests the appointment of a Lawyer in proceedings necessitating such representation in relation to his affairs.
3. Application by the Welfare Authorities for receipt of aid for the representation of a minor and/or his parents.
4. The Juvenile Court recommends to the Legal Aid Department within the area of its jurisdiction that it should consider a grant of Legal Aid to parents in proceedings before it, and sends its recommendation to the relevant bureau.
Representation of Minors in respect of whom a forced hospitalization order has been issued for the purpose of examination and/or psychiatric treatment.
Under 4A (c) of the Youth Law, "a minor shall not be hospitalized with the consent of the person responsible for him if he has attained the age of 15 years and does not agree to being hospitalized, other than with approval of the Court granted pursuant to the provisions of the Youth Law, and on the grounds enumerated therein for the forced hospitalization of a minor".
Section 3F. of the Youth (Care and Supervision) Law provides as follows:
"3F(a) In proceedings under Section 4A of the Treatment of Mental Patients Law, in relation to a minor who has attained the age of 15 years, who does not agree to hospitalization in a hospital by the person responsible for him, the minor shall be a Respondent in the proceedings.
(b) In a proceeding under this section the Court shall appoint a Lawyer to represent him, save where the minor has elected to be represented by his own Lawyer".
Representation of minors in proceedings before the Family Court
The Legal Aid Department grants representation to minors and their parents in proceedings before a Family Court, such as: proceedings for custody and access arrangements, claims for recognition of paternity, guardianship, immigration, inheritance etc.
When the parents are in dispute between themselves and the minor is being compelled to act against his will, in the dispute between the parents, it is necessary that the minor be represented in order for his rights to be protected. Apart from this, the fact that the Lawyer representing him is an objective party, his not having been appointed by either of the parties and his fees not being financed by either of the parties, is of considerable value. In such cases the Lawyer is likely to act as an intermediary and mediating element, being a person in whom the parties have confidence because he is acting in the exercise of the minor's rights and is not taking sides in the dispute.
Ways of applying for Legal Aid in proceedings before the Family Court:
1. The Family Court refers to the Legal Aid Department in the District, a request for legal representation of the minor in the proceedings being conducted between his parents.
2. The minor applies personally to the Legal Aid Department where he resides and requests that he be represented in proceedings being conducted between his parents and this under his right in accordance with Section 3(d) of the Family Court Law, 5755-1995- to bring an action in any matter in which there may be a substantial injury to his rights.
A VIEW TO THE FUTURE
With belief in and recognition of the importance of legal representation for children and their parents as an overriding objective, the Department is working resolutely and intensively to have the rights of minors and their parents in the State of Israel anchored in legislation and also the furtherance of their rights in the legal process.
At the same time, the Department is promoting the establishment of professional units that will work in conjunction with representational Lawyers and with care counselors, while continuing to place the emphasis on skill, training, professional oversight, regular supervision and control. Minors and their parents will be entitled to professional representation, will receive information and will thus feel secure and be aware of and exercise their legal rights.
The Department is also working to promote awareness among the professionals and the public at large of the rights, of minors and parents, to representation and about the services that are provided in the Department, by means of public information campaigns and the holding of study courses on the subject.