American European Mission Case

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as the High Court of Justice.
American European Beth-El Mission
and
Minister of Social Welfare.

The individual in international law Human rights and freedoms Religious freedom Religious education of minors Universal Declaration of Human Rights, 1948 International Convention on Civil and Political Rights, 1966 (Article 18 (4)) International Treaty for Prevention of Religious Intolerance (Article 4) Declaration of the Rights of a Child, 1960 The law of Israel.

Summary.The petitioner, a foreign corporation registered in Israel, applied for a licence to conduct a children's home. The respondent granted the licence but, in reliance upon the relevant regulations, imposed a condition that children who were not members of the Evangelical Christian faith should not be accepted. The petitioner objected to this condition on the grounds that its imposition was ultra vires the respondent's powers under the regulations and that it was unreasonable and violated the freedom of religion. The High Court of Justice held that the respondent had not acted ultra vires and that since the regulations applied indifferently to all religions, both from the point of view of the homes concerned and from the point of view of the children accepted, there was no fear of religious discrimination.

The following is the text of the relevant parts of the judgment:

Per Witkon J.:

The petitioner before us is registered in this country as a foreign corporation. It carries on a children's home in Haifa. Its purpose, in the main, is to look after abandoned orphans and other needy children, to maintain them and to care for their well-being. The home requires a licence under the Homes (Supervision) Law, 57251965 (hereinafter called the Law). In that Law home is defined as a place used or intended to be used, wholly or in part, as a place of residence or hostel for children, elderly persons, or physically infirm or mentally defective persons while outside their own families. All these are called protected persons. Child means a person under fourteen years of age. Section 2 of the Law provides:

(a) No person shall operate a home in which there are more than two protected persons unless he has received a licence from the Minister of Social Welfare, and no person shall open a home so long as the licence has not been issued.

(b) The Minister of Social Welfare shall not issue a licence unless he is satisfied that the home meets the requirements laid down by regulations.

The petitioner applied for a licence pursuant to these provisions, but the respondent granted the application only subject to the condition that no children should be received in the home who did not belong to the Evangelical Christian faith. In laying down this condition the respondent relied upon Regulation 6 (e) of the Supervision of Homes (Keeping of Children in an Ordinary Home) Regulations, 57261965, which states that a child shall not be received in a home in which religious education is given unless he is a member of the religion concerned. It is not disputed that in the present home the children are given a Christian religious education. The petitioner contests the condition in question. It considers that in imposing it the respondent has overstepped his powers under the Law and also that the condition is unreasonable and even violates the freedom of religion and the rights of parents to decide the religion in which their children should be brought up. [The Judge considered the first submission of the petitioner and reached the conclusion that the respondent had not acted ultra vires his statutory powers.]

It remains for us to deal with the second submission of the petitioner, that the condition is unreasonable and violates freedom of religion and the parents' rights to decide the religion in which their children should be reared. It is desirable, in the first place, to recall what Regulation 6 (e) prescribes and what it does not prescribe. The regulation extends to all...

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