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Family Law

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21 JUN 2013

Standards for determining parental incapacity: an analysis of court decisions in favour of involuntary adoption in Israel [2013] CFLQ 181

Keywords: Parental capacity - adoption - adoption cause - decision-making in child welfare - involuntary adoption - adoption decisions

The study analyses judgments of parental incapacity in cases where parental rights were terminated and the child was declared by the Israeli court eligible for adoption. In such cases, ‘parental incapacity' is often used as grounds for adoption despite the fact that the legal and professional definition of that term is unclear. Given the far-reaching consequences of the determination of parental incapacity, for both children and parents, the question to be addressed is: what standards are used by the Israeli courts when examining parental behaviour. To this end, this study analysed the content of 130 court decisions in favour of involuntary adoption. The analysis revealed that the most frequently used criteria in the legal determination of parental capacity were: emotional, physical, and educational parental capacity. The study discusses whether the findings reflect high standards for determining parental incapacity or minimal ones. In view of the fact that the determination of parental incapacity proved to be not just ‘factually based' but also value based, involving the social norms and values of the decision makers, the study suggest a need for greater awareness on the part of professionals regarding how they perceive, construct, and interpret family life and the child-parent relationship and interaction.

The full version of this article appears in issue 2 of 2013 of Child and Family Law Quarterly.

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