Philip’s Blog

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.


American Jewry’s Drift from Israel is about Low Self-Esteem

A number of pundits have proposed what sound like similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which American Jewry now identifies more with their Americanism than with their Judaism, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.

I want to suggest that the reason is deeper: The loss of Jewish identity is due to an attenuation of Jewish self-esteem.

America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.

But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the land of Israel. Despite millennia of exile from the land and of anti-Semitism, Jewish specialness persists to this day. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.

Read the rest of this article as published on August 25, 2016, in

The Abolition of Legal Aid in Family Cases in the UK

I read with dismay about the abolition of Legal Aid for most matrimonial cases in the UK.

After my admission as a solicitor in late 1995, and until my departure for Israel in summer 1978, I represented litigants in scores of cases, civil and criminal, under the legal aid scheme. I was among the founder members of the Tottenham Magistrates Court Duty Solicitor scheme, under which solicitors saw defendants who were appearing for first remand hearings, under the Green Form (which allowed us to take instruction as to the means of the defendant and do up to 25 pounds worth of work if satisfied that legal aid was justified, without referring to the law society for approval).

But much of the work was matrimonial. (If my memory of the history serves, legal aid was founded to assist in divorce proceeding for soldiers returning after service abroad in World War II, and only later expanded to cover other areas and replace the dock brief in criminal cases).

Israel has a legal aid scheme, means tested of course, and throughout my career as a lawyer I represented clients under this scheme in hundreds of cases, at all levels, including the Supreme Court. But what I have to say here also reflects my work as a judge of the Family Court, dealing with those comparatively few cases where one or both of the parties were unrepresented.

Legal Aid, if properly administered, has two great advantages in matrimonial proceedings, above and beyond representation in and of itself:

The first is that it enables young lawyers, at the start of their careers, to get valuable experience in interviewing clients and preparing pleadings, and appearing in preliminary applications, and even trials at the County Court and Domestic Proceedings Court and Magistrates Court. For myself, I can say that I learned many lessons in advocacy as a young lawyer, which I would not have learned were it not for the opportunities afforded by legal aid.

But more importantly, it saves court time, at two levels: that of the court secretariat, and that of the judicial officer.

The secretariat is relieved of the need to inspect each document filed for compliance with procedural rules and basic comprehensibility, and to explain basic principles to litigants in person.

Cases involving non-represented litigants are a colossal drain on judge time. The judicial officer is faced with claims which, if  a solicitor had been consulted, would not have been have been filed, as being contrary to the established principles of law, and defences which are clearly untenable.

But even if the case is viable, a judicial officer will have to spend much time and energy explaining each procedural stage and each evidentiary issue (some of them somewhat hard to understand even to an experienced lawyer) to the litigants, and worse than that, to assist in the presentation of the case without knowing all the facts which might have assisted one of the parties if  they had been pleaded, or about potential witnesses. In this regard, the almost impossible task of remaining impartial is exacerbated where one of the parties is represented: the unrepresented party needs even more assistance, particularly if the lawyer is less than scrupulous.

The inevitable result of removal of legal aid is a substantial increase in the workload at the administrative and the judicial level, which results in increased delays in the completion of cases; unresolved cases, especially in the matrimonial field, bring about more interlocutory application and injunction proceedings, and more stress on the minor children, who suffer most from the uncertainty and the preoccupation of the parents with the litigation. This in its train may lead to increased involvement by welfare services, with the costs that this involves. The alternative is the need for substantially increased staffing, with the associated costs. Both of these are undesirable, and increase costs to the state.

All credit is due to the judges, and especially the President of the Family Division, who have done all in their power to mitigate the effects of the cuts.

Legal aid should not be regarded as a welfare benefit that can be granted or removed according to budgetary constraints, especially where, as I point out, the saving in the cost of representation are far outweighed by the increase in cost to the state of expansion of court staffing and/or the excessive delays in finishing cases.

The state has the responsibility to provide a judicial system which answers the needs of the public. This includes representation of those who cannot afford it.

In Israel, Legal Aid is expanding its scope, specifically in the Family Law field. In the past couple of years a decision was taken to give legal aid to minors whose matters are being dealt with in the Family Court. According to set criteria the lawyer appointed decides to act as lawyer for the child (mainly older children) or to represent the child’s best interests. A manager has been appointed to deal with these cases in each district legal aid office.

Just last month, in the course of parliamentary law committee debates which led to a reform of the law regarding guardianship of disabled persons (inter alia requiring more involvement of the individual concerned and restricting the guardianship to the least injury to his autonomy), the legal aid regulations were amended to grant legal aid to these individuals.

The Israel government took these steps in recognition of their necessity in ensuring proper court action in these cases, and of the savings of court time, especially as the lawyer appointed can apply his knowledge and experience to mediation and ADR in these disputes and make of defend applications promptly and professionally.

Democracy in Turkey?


The article by Turkey’s charge d’affaires (Strength and resilience of Turkish democracy, 3 August) is based on a common misunderstanding – that democracy consists only of the holding of elections.

Many totalitarian regimes hold elections, but where the candidates are pre-selected by the existing regime, or only one party is permitted to run, or voters are intimidated by violence or the threat of it, only the most cynical would call this democracy.

Democracy requires three more elements, all of which should be safeguarded by constitutional provisions: freedom of association, including the liberty to form political parties; freedom of expression, including a free press; and above all, an independent judiciary, whose powers should include supervision of elections.

The independence of judges requires a process of selection of judges on the basis of their legal acumen and personal integrity alone, and without regard for their politics, together with tenure and a constitutionally protected ban on removal of judges (subject only to dismissal after due process, by a tribunal within the judicial system, for disciplinary infractions).

Any regime which closes newspapers and television stations, because they oppose the government, and which arrests or dismisses judges for political reasons only, has no business calling itself democratic.


Philip Marcus

Why are American Jews and Israel Drifting Apart?

In response to a recent article in Mosaic magazine, entitled “If American Jews and Israel are Drifting Apart, What’s the Reason?“, I wrote the following contribution:

The distinguished participants in this debate propose similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which Jews in America now identify more with their Americanism than with their Judaism, resulting in an attenuation of Jewish self-esteem, leading to a loss of Jewish identity, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.

America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.

But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and has continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the Land of Israel, and the Temple service.  Despite millennia of exile from the Land and of antisemitism, Jewish specialness persists to this day. Despite attrition, not only by attempts at genocide, forced conversion but also by assimilation and intermarriage, the Jewish nation has survived and flourished. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.

Throughout the generations and in all the places in which they lived, in the Land of Israel and around the globe, the Jews preserved and continue to preserve their particularity, by means of the use of the Hebrew language for prayer and learning, and, for the last century or so, in Israel, as the vernacular.

Authentic Judaism requires that Jews respect and draw inspiration from the past, that they live in the present and use their abilities for the benefit of mankind, and plan for the future age of the ingathering of all Jews to the Land of Israel and the restoration of the Holy Temple in Jerusalem. In this way they kept their particularistic national identity in all those centuries in which the vast majority of Jews lived outside the Land.

Authentic Judaism requires devotion of time and energy to learning and performing mitzvoth. It also requires Hebrew literacy, stable family life, and an understanding of the links between Jews of the current generation with those of all past generations and their obligations to the future and to the world. Self-esteem is created and preserved by the strong family, communal and national connections, which are ensured by common identification with the Torah. Authentic Judaism rejects postmodernism, with its distrust and deconstruction of any ideology which is clear and lasting.

In the absence of one or other of these features of Jewish identity and self-esteem, the road to assimilation and the disappearance of a connection with the State of Israel and its Jews is wide open.

Modern movements in Judaism base their content on selected ideas which are taken from parts of the Jewish sources (“prophetic Judaism”) and, translated into terms which purport to be universal, appear to be consistent with values which are deemed to be politically correct: equality, human rights, non-discrimination, internationalism and Tikkun Olam (a misrepresentation of a complicated halachic concept, by which the Rabbis of the Talmud preferred certain rabbinical interpretations over others in the light of specific exigencies).

By doing so, the adherents of these movements are deprived of exposure to the texts and ideology of Judaism, in all their depth and breadth, their dynamism and the interrelationship between each part of the Torah (in the broadest sense) and each other part. In this way, these movements deprive Jews of their self-esteem, their distinctiveness, and ultimately their identity.

Those who identify Judaism only as a national liberation movement, with Israel at the center, may become disenchanted with this or that policy of the Israel government, and their Jewish identity reveals itself only in a hubristic attempt to dictate to Israel how it should behave, usually without sufficient knowledge of or regard for the history, geography or the exigencies of daily life in Israel.

Those whose Jewish identity is centered on commemoration of the Holocaust and antisemitism have chosen a negative narrative in which a specific period of Jewish victimhood is central and Jewish self-esteem is absent. The specific antisemitism of the Nazi exterminations is often subsumed into a general universalization of racism, without a specific Jewish context.

Those whose Jewish identity is manifested only by attendance at occasional Barmitzvahs and weddings, and visiting houses of prayer once or twice a year, or eating “jewish” foods, or having a particular sense of humor, or even donating large sums to Jewish institutions, which are at most nostalgic expressions of loyalty to past generations, are unable to pass a love of Judaism and the Jewish people to their children.

Those for whom the history and authentic ethos of the Jews mean nothing will act and think no differently from the gentiles with whom they mingle, and are at risk of becoming indistinguishable from them (except to anti-Semites).

So I agree that the repair of the distancing of American Jewry from Israel requires rigorous rethinking of the relationship between each Jew and his heritage, and between him and his American identity. Reestablishment of Jewish self-esteem is the key to this.







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.

Michigan Judge Should Have Ordered Detention of Mother, Not Children

The case in which a Michigan Family Court judge sent three children, aged 9, 10 and 15, to a juvenile detention facility, has attracted much attention.

While it is difficult to criticize a judge without familiarity with all the material relating to the family, after reading a transcript of the hearing which took place on 24 June (the judge ordered the release of the children on 10 July), a number of disturbing matters appear.

The children, whose father is an Israeli engineer now living mainly in Israel, and whose mother is a pediatric ophthalmologist, have been the subject of highly contentious visitation proceedings, mainly before the same judge, for 5.5 years. These proceedings have been accompanied by wide publicity, including the name of the family and pictures of the children.

The judge was, rightly it seems, of the view that the children’s reluctance and refusal to have contact with the father were a result of the mother’s actions and words. All efforts, including attempts at treatment of the children, had failed. But in the face of alienation of the children towards the father, the court embarked on a rising scale of persuasion, and latterly threats, not against the mother but against the children.

The hearing in which the judge found the children to be in contempt of court took place with the presence of lawyers for each of the children; but it appears that they were only appointed immediately before the hearing, and had not had time to take instructions from the children, and were largely passive despite the threat of detention. The father tried to express his objections to the course of action which the judge was proposing, and the mother’s lawyer did not manage to address the judge.

The judge compared the children to Charles Manson’s cult, and described the place to which she was going to send the children as a kind of prison, in which the children would be kept in separate cells, with no contact between them, and would be deprived of elementary privacy, even in the lavatory.

After finding the eldest boy in contempt, the judge ordered the younger children to have lunch with the father, in the presence of court official, in the court cafeteria, and when they appeared to refuse, she found them also to be in contempt, and ordered that all three be removed to a juvenile detention facility.

In the end the judge ordered the children to stay in a facility, within the juvenile detention centre, in which abused and neglected children are housed. She also banned all contact with the mother, and fixed the next hearing for early September.

It is surprising that none of the attorneys involved, for the children or either of the parents, asked to court to defer the removal of the children until an appeal could be heard.

Cases of refusal by children of contact with one of the parents are unfortunately not a rarity, in Israel as in other countries. The reason for refusal is not always because the custodial parent incites them against the other parent, but when this is the case, this should be regarded as abuse of the children by that parent, and constitutes a breach of one of the primary parental responsibilities – to ensure that the children benefit from a healthy relationship with both parents despite their separation. In such a case, the efforts of the court need to be accompanied by sanctions against the alienating parent, and not against the children, who are almost always unwitting soldiers in the litigation battle and many of whom suffer from psychological, and sometimes psychiatric, damage as a result of the catastrophic breakup of the family and the alienation. It seems that children who are in the 8-10 age group are the most vulnerable when parents separate; in the Michigan case, the older boy, who was clearly regarded by his siblings as a leader, was about 9 when the proceedings started. He had reported violence by the father towards the mother and also a disturbance at one of the visits; but it seems that none of these incidents were sufficient to cause a finding by any court against the father.

In any case, the children need therapy; threats and punishments are likely to confirm their refusal of contact, especially where the alienating parent will shift the blame on the other parent, even if that parent opposed punitive action.

In the Michigan case, the judge described the children as brainwashed; but instead of penalizing the mother, who was clearly responsible, she chose a course of intimidation against the children. The children had clearly behaved badly and disrespected the court’s decisions; but punishing them, or even threatening to punish them in the terms she used, when the two younger children were clearly below the age of criminal responsibility, shows that the judge regarded the children as parties to the court proceedings. Her words seem to express frustration and anger, rather than the calm and deliberation that are to expected from a judge even, and perhaps especially, in a difficult and highly charged case.

Cases similar to the one described are dealt with differently in Israel.

As soon as it appears that court determined contact arrangements are not being complied with, it is essential to have an independent expert opinion as to the reasons, as swiftly as possible. Time is of the essence, especially with younger children, since a child will often interpret the lack of contact as indifference on the part of the parent from whom he is separated, even if he is not told by the custodial parent that the other parent is dangerous, or hates the child, etc.

If there is no cogent reason for the absence of contact, supervised meetings of the children with the alienated parent should be ordered. If these do not take place, and it is clear that the principal reason is obstruction by the custodial parent, then the obstructive parent should be held in contempt, and punished, by fines in increasing amounts, for each unjustifiable missed meeting of the child with the other parent. Where this is inappropriate, because of lack of means, or ineffective, then it is this parent who should be sentenced to short periods of imprisonment, even of a few days, during which the children will be placed with the other parent (or where this is impossible, with a close relative of the other parent). In a severe case, the court will order that the children be placed in the custody of the other parent; this was the result of a recent case in Israel, and the decision of the Family Court was affirmed on appeal.

Experience shows that this is usually effective, provided that the situation has not been allowed to go on for months or years.

Proceedings in the Family Court in Israel are held under strict prohibition of publicity regarding the names of the parties and any other identifying information, except with the leave of the court.

There are detailed procedures for the views of the children to be brought before the court, and while many judges interview children, this is done in the judge’s chambers in the presence of a social worker; appearance of the child in open court is extremely rare.

Any proceedings regarding contempt of court leading to imprisonment are held with deep respect for due process, and decisions are detailed and recite all the relevant details which led to the decision. Such decisions must be reported by the court to the Attorney-General, who can intervene if he sees fit. And the object of penalties for contempt of court is not to punish the person for past behavior, but to convince him to comply with the court’s instructions in the future.

It is hard to predict what effect the hearing, and the way in which it was conducted, and the stay in the children’s detention facility, will have on these children. But penalizing a child for not having a reasonable relationship with his parent, or even threatening him with dire results if he does not do so, clearly goes against the primary responsibility of the court – to act in the best interests of the child.

After Protective Edge

At the end of the Gaza Campaign, named “Protective Edge” by the Israel government, in August 2014, a friend who is a Law Professor in Canada wrote to me and shared an article by Sam Harris that he described as “a nuanced, important but limited defence of Israel.”

This was my response:

Thank you for thinking of us. Thank G-d, we are all well. All of my children do their reserve duty with the Northern Command, so they were not called up for the last round with Hamas; however if things heat up with ISIS, Al-Qaeda and company in the north of Israel, they might have to fight.

Each one of the rocket attacks triggered an alarm siren in the area liable to be hit, even though, as you know, an infinitesimal number of them got through Iron Dome into residential areas. But each of us in those areas experienced the shock of hearing a siren and having to find a place to shelter, even when the only alternative was to stop the car, on the highway, get out of the car and lie down beside it.  The rockets, and the mortar attacks, for which there is basically no warning because of the short flight time, were all directed at causing terror, and most of them were generally pointed in the direction of civilians; hardly any were aimed at military targets.

My cousins in their Kibbutz two miles from the border were in constant fear that a platoon of terrorists would emerge from a hole in the middle of their dining hall and commit mass murder.

The excellent article emphasizes this aspect of the imbalanced conflict, but the most telling point is the contrast of ambitions.

Judaism, unlike Islam and Christianity, has no ambitions, territorial or philosophical, relating to non-Jews. We do not have any ambition to evangelize or convert anyone else. Jews traditionally actively dissuade converts. The salvation of non-Jews is no business of ours; each can go about it his own way. The Jewish mainstream is not missionary.

Judaism believes that Jews are entitled to the Land of Israel, and no more. The territory at the moment under control of the Israeli government control corresponds pretty accurately to the traditional boundaries.

Israel does not want any more than this; not now, not ever.

The tiny scale on which things happen here makes it practically impossible to convey the distances and times scales. The total area of the country is about that of Vancouver Island. Ben Gurion Airport is about 5 miles from the pre-1967 border, and only 20 miles or so from the Jordan River, which has been the natural geographical border since Biblical times.

But, if separatists from Thornhill were shooting rockets and mortars indiscriminately at Toronto’s suburbs and Central Business District, how would the residents of Ontario feel? How would they react? Would any reasonably sized attempt to silence the guns be seen as disproportionate?

Hamas sees itself as part of the Islamic movement, which believes, so it seems, not only that non-Muslims are damned or doomed in some way, but that they must all, without exception, be converted to Islam or killed if they refuse. Islam also believes that large tracts of the world’s surface including the entire Middle East and need to be liberated to Islam, at the edge of a sword.

The colossal amounts of money and aid poured by foreign governments and agencies, into Gaza, and contraband smuggled in, were used to for munitions and to build attack and communication tunnels for terrorists. None, it seems, was used to protect civilians in the inevitable event of defensive actions by Israel.

Israel has no demands on the territory now held by Hamas, or indeed any of the Muslim or Arab world. We can and do demand that they stop trying to annihilate the Jewish people. But faced with an enemy which declares publicly that the Jews must be annihilated, what is Israel supposed to do when attacked?

While I disagree with many of the basic premises of Sam Harris’s article, he has put his finger on the central issues. If only the UN and its agencies, the BDS movement, NGOs and governments would read the article with an open mind, as you did.

Thank you so much for sharing it with me.


31 August 2014











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