Despite growing Muslim minority populations in many Western countries, one area where there has traditionally been seen to be a legal disconnect between those populations and their new countries is the area of adoption, or the similar but distinct concept known in Islam as ‘kafala’.
The result of this disconnect is that despite the presence of millions of orphans in conflict zones or abject poverty in Muslim majority countries; Muslim minorities, despite their comparatively strong economic position, have not been able to assist to provide a home for these orphans.
This inability to assist is due to legal and procedural barriers in relation to migration and perceived religious barriers, most of which are embedded in the historical international and state-based approaches to adoption and kafala, respectively.The number of Muslim orphans in Afghanistan alone was thought to be more than 10 per cent of the population as of 2004,[137] or 1,800,000 people.[138] Based on the current disconnect, these children would be ineligible to be permitted to leave Afghanistan, even to families who are practising Muslims. Although non-government organisations do not regard foreign adoption as a real contributor to poverty in a country,[139] an arrangement permitting this (or a variant of this) would lead to a substantial improvement in the lives of those who were permitted to migrate and, importantly, would permit a minority group to be in a similar position as the broader community in matters of adoption.
This chapter seeks to analyse the current position both internationally and at the state level, and to look for possible areas for reform or international/state based concord to benefit orphans as well as to assess the merits of the idea that there are diametrically opposed views of ‘adoption’ between Western law and Muslim majority states. In doing so, it is useful to group the approaches to Kafala in several Muslim majority states to identify possible states where a bilateral or multilateral approach may succeed whilst protecting all relevant interests and concerns.
This chapter builds upon the paper ‘Islamic Law: Adoptions and Kafalah’,[140] which analysed the then recent European Court of Human Rights decision (in Harroudj[141]) and considers recent ijtihad (‘independent legal reasoning’) on kafala from the Women’s Shura Council to conclude there are possible opportunities for kafala in the West. The chapter will also incorporate 2013 developments including the Canadian decision to ban migration for children in kafala arrangements from Pakistan[142] and an Australian case.
I.