The Interpretation of the Concept ‘The Best Interest of the Child’ in Israel

Abstract

Different interpretations of the concept of the best interest of the child exist in Rabbinical courts and civil courts in Israel. This article analyzes these interpretations especially in the spheres of child custody and maternity cases. Rabbinical courts interpret this concept in light of their perspective about the child’s welfare and attribute major importance to the child’s spiritual benefit. Some twentieth century Jewish law scholars and Dayanim in Rabbinical courts claim that the general principle of the best interest of the child is the sole or main consideration when these courts have to decide about the fate of a Jewish child. Civil courts in Israel define the best interest of the child according to criteria of professionals in the social sciences, namely social workers and psychologists. The above-mentioned approach of some twentieth century Jewish law scholars and Dayanim in Rabbinical courts – and the assistance of professionals: social workers and psychologists to proceedings in Rabbinical courts in Israel – bridges part of the gap between the secular and the religious interpretations of the concept of the best interest of the child. There will always remain a gap between the secular and Jewish-religious interpretation of this concept concerning the spiritual best interest of the child. This is a very important consideration in Rabbinical courts. They believe a child has a right to receive the spiritual education that will best prepare him or her for the spiritual tasks of a mature human being. However, the perspective of civil courts in Israel is secular. According to their outlook there is no significance attached to religious concerns for the soul of the child. The new interpretation of Jewish law, which ascribes major importance to the principle of the best interest of the child and the assistance of professionals: social workers and psychologists, are desirable developments. This new outlook should be applied as far as possible in Rabbinical courts.