AN INTERNATIONAL LAW SOLUTION?
Any proposal that would look to move children over international borders should first look to the possibilities of using international instrumentalities already in place and adapted to fit, as mentioned above the Canadian example already shows some of the challenges in doing this.
At present, there is a clear lack of analogy between kafala and adoption in international instrumentalities. Most international instruments require a permanent arrangement with no prospect of severance at a later date, including in relation to inheritance. Few of the current approaches would simply fit this model.Kafala is recognised as a form of care in some international instru- ments[244] with the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children,[245] permitting cooperation in relation to ‘recognition and enforcement’[246] and recognising ‘care by Kafala or an analogous institution’.[247] Other instruments refer to a ‘valuable alternative institution... Kafalah of Islamic Law, which provide substitute care to children’.[248] Despite this recognition, few Muslim-majority states have signed these conventions,[249] and amongst Muslim-majority states the primary instrument providing for adoption - the Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption,[250] which requires a permanent parent-child relationship[251] - has only been signed by Turkey.[252] The idea of codified permanency dominates this instrument and controls all movement of children,[253] providing an impediment to international or multilateral agreement.
In terms of instruments that have been signed by Muslim-majority countries, the Convention on the Rights of the Child does provide legitimate care ‘could include...
Kafala of Islamic law’,[254] but does not offer cross-jurisdictional recognition or implementation of kafala. This divergence has resulted from an Islamic resistance to Western constructs and Western resistance to approaches that do not result in the permanent severance of the parent-child relationship. Another key concern in not signing by Muslim-majority countries is a fairly well-founded view that proposals for signing have been predicated upon Islamic adherence to international norms[255] rather than a negotiated approach to recognise views of Islamic minorities and Shari’ah postulates.[256]The practical implication is that for Muslims living in non-Muslim- majority countries (apart from Turkey), procedures can be onerous or non-existent, or based on bilateral comity (of which there are no formal examples) rather than international frameworks.
In light of the above, it is unlikely that international conventions will provide a timely solution, as they are historically difficult to change and currently focus on permanency and formal transfer of the child and strict enforceability. Nor is it likely that one will appear that is socially or religiously palatable for many Muslim-majority ‘sending’ states or for most Western ‘receiving’ states.
State law and bilateral comity therefore provide the only viable and practical prospect for filling the void.
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