UCL Alumnus Profile

Read about Philip Marcus’s career, as described on the website of his alma mater University College London:

https://www.ucl.ac.uk/laws/alumni/alumni-profiles

Combating Violence against Women and Children

In October 2017, Philip Marcus lectured on “Israel Law and Court Practice in Cases of Violence against Women and Children”, as part of an international course on Combating Violence against Women and Children.

This three-week course is given every year by Mashav – Israel’s Agency for International Development Cooperation,  a division of Israel’s Ministry of Foreign Affairs, at the Golda Meir Mashav Carmel International Training Centre in Haifa; Philip Marcus is a regular lecturer in these courses.

The participants are mainly government officials, personnel from non-governmental organizations, judges and mental health professionals. Attending this course were participants from five continents: Argentina, Botswana, Cameroon, Colombia, Costa Rica, Dominican Republic, Georgia, India, Kenya, Marshall Islands, Myanmar,Nepal, Nigeria, Paraguay, Philippines, Serbia, Sierra Leone, South Africa, Uganda and Vietnam.

The participants selected Philip Marcus’s lecture as “best lecture” for the course.

For more information about Mashav, see their website: www.mctc.org.il

The Counseling Contract

Philip Marcus gave a talk on “Legal Aspects, Professional Ethics, and the Counseling Contract” at the Path Training Center in Jerusalem on June 19, 2017. The workshop covered the various ethical and legal issues that can arise for mental health professionals in Israel.

Minors’ Involvement in Judicial Procedures – Recorded Lecture

Philip Marcus spoke at the opening event of the 2016-17 movie series organized by Oss”im Shalom- Social Workers for Peace and Social Welfare at the Jerusalem Cinematheque on Monday 14th November, 2016. Before the screening of the movie “Nadira – Rara”, Philip Marcus gave a lecture on Minors’ Involvement in Judicial Procedures.

He was introduced by Mr. Nathan Lavon, founder and Chairman of Oss”im Shalom, and Dr. Tzafra Dweik, Chairman of the Israeli Social Workers Union also spoke.

Click here to hear the audio recording.

 

Course on Setting Up A Unified Family Court

After serving for over 15 years as a judge of the Jerusalem Family Court, Judge Philip Marcus has addressed many gatherings and conferences, in Israel and on five continents, on many aspects of Family Law, and especially how to make legal and judicial systems more appropriate to the needs of families. He is happy to offer a course in which he will present a model, which is based on the Israeli Family Court and is adaptable to the needs, legal culture and resources available in any country.

An outline of the course is attached here.

Divorced Parents Have Not Lost Their Rights

The admirable article by Robert E. Emery, How Divorced Parents Lost Their Rights (New York Times, 6 September 2014), presents a view of the situation in the US which should not be seen as applicable in its entirety in Israel. It contains some basic assumptions about family law and relationships which do not apply here, like the statement that “married parents cannot sue each other”, and that “the law assumes that divorced parents’ interests in their children…are not aligned”; but Emery’s support of the removal of terms like “custody” and “visitation”, and encouragement of parents to develop a parenting plan, are to be welcomed.

Indeed, as I have written elsewhere, the need to be “awarded” with custody leads to litigation (and when one parent asks for joint custody, the other will often oppose this); there are at present proposals under consideration in Israel which would require separating parents to present parenting plans before starting litigation about their children.

The starting point in Israeli law is that by virtue of being parents, whether married or not, the parents are jointly the guardians of their children, and as such are obliged to look after their children. So long as they do so and do not damage or endanger the children, others, including the state and the courts, are forbidden to interfere. (These obligations and the immunity from interference are sometimes called rights, but this is incorrect and gives rise to the impression that the court must never get involved).

Even when parents are living together, but disagree about the education of their children, or about health care or medical treatment, for example, they may file with the court an Application for Dispute Resolution. Family courts and religious courts in Israel have social work units, which are designed to help parents to resolve their disagreements, by offering mediation, or referring them to consultants and therapists, so as to avoid litigation as far as possible.

When parents separate, they are obliged to carry on looking after their children. As long as they do so adequately, in principle the court should not get involved. But even where parents agree, the agreement about where the children will live, contact between child and parent and wider family, decision making, etc. is usually part of a set of agreements about other issues, some of which (e.g. child support) directly affect the child, but many of which have no direct effect (divorce, spousal support, alimony, property division etc.). Concessions may be made in the interests of reaching a comprehensive agreement, and in some cases, the parents or one of them may be so worn down by the dispute, or by the other party, that they agree to terms which may be against the interests of the child.

For example, in one case the wife was so anxious to get a divorce from her allegedly abusive husband that she agreed that their child, an infant of a few months old, who was still only nursing, should stay with the father, who had hardly been involved in the upbringing of the baby, in another city, from Friday afternoon until Sunday morning. This was clearly against the interests of the child.

In another case, in order to reach agreement, the parents agreed that the mother should receive the father’s share of the joint apartment and in return, the mother would not receive child support from the father. When the matter came to the court for approval of the agreement, it transpired that the mother would have to pay mortgage repayments which almost equaled her salary, leaving her with no money with which to provide for herself, let alone the children.

The immunity of the parental decision-making process is breached by the change in the living arrangements – instead of one home, the child will move between two homes, and there will be two economic units instead of one – and the law recognizes that in the tense situation between the parents, the child’s interests may be ignored or forgotten.

So the law requires that agreements relating to children or affecting them be submitted to the court for approval, and without such approval, that is, the court’s certification that nothing in the agreement appears to be contrary to the interests of the child, the provisions of the agreement have no binding effect and may not be enforced. (The same applies to agreements between spouses relating to property, so as to rule out later allegations of fraud or that one has taken advantage of the other).

However the court, recognizing that the parents have waived their autonomy, has to keep its involvement, particularly in changing the terms on which the parents have agreed, to a minimum. And no court has an interest (or the time, with crowded dockets) to get involved unnecessarily.

Only where all efforts to bring the parents to an agreement have failed, will the court decide whether their children play soccer or have piano lessons.

Emery is correct that all concerned, including the courts, lawyers, counsellors, psychologists, teachers and the press and mass media, should be doing all they can to encourage joint parenting even after separation. Indeed, techniques such as mediation, collaborative law and the use of parenting coordinators are gaining traction in Israel. There is a need to make some changes in the law, but even without these changes, wise parents can minimize the stress on their children by making use of these and other methods.

However, when an agreement is presented to the court by the parents, the fact that a court may regard as unreasonable something the parties agreed to does not mean, as Emery suggests, that the court is wrong.

Philip Marcus is a retired Judge of the Jerusalem Family Court

 

 

 

International Surrogacy and Same Sex Partners: The Israeli Approach

In my article in the September 2013 edition of Family Law Newsletter, The Israeli Family Court: Judicial Powers and Therapeutic Interventions, I described briefly the jurisdiction, principles and practices of the Israeli Family Courts.

In this article: “International Surrogacy and Same Sex Partners: The Israeli Approach“, published in the Family Law Newsletter of International Bar Association, April 2014, I show how these principles and practices are applied, by reporting on a case decided in March 2014 by the Family Court in Tel-Aviv. The court was able to deal with a novel situation involving a same sex couple and international surrogacy, even in the absence of specific legislation.

The case which came before the Family Court demonstrates the ability of the court to deal with a novel situation on the basis of existing principles. The fact that surrogacy is recognized in Israel, and that the Family Court is free, if necessary, in the interests of justice, to diverge from the ordinary rules of evidence and procedure, provided the judge in this case (who before his appointment to the judiciary was an advocate with many years of experience in a wide range of family matters) with the ability to determine the matter in the interests of the child.

However, if the Attorney-General had disputed the stability of the plaintiffs’ relationship, or had expressed doubts about their parenting abilities, it is reasonable to assume that an independent report would have been ordered.

The case does however point out that the international community needs, as a matter of urgency, to reach agreements as to all the stages of international surrogacy. Any Convention or bilateral agreement on the subject needs to address several issues, including the protection of women from exploitation and the legality of the surrogacy relationship.

But particular importance attaches to the need to establish the suitability of the proposed parent or parents, in their home country, as a condition of entering into a surrogacy arrangement. Since some considerable time must pass between the investigation of suitability of the proposed parent or parents in principle and that the birth of the child, the court of the home country must also be convinced that a parenting order would be in the interests of the child.