ISLAMIC COUNTRIES, SYSTEMS OF LAW AND TREATMENT OF KAFALA

An analysis of kafala across the Islamic world is necessarily constrained by uncodified systems of law, widely divergent legal approaches and the necessity to group approaches roughly based on their potential to be amenable to practical arrangements or agreement being put in place.

The issue and suitability of either international or state based comity solutions are further complicated by the prevalence of informal local arrangements where ‘most domestic adoptions are first party informal care arrangements... not necessarily endorsed by court orders’,^[178] and even formal arrangements are generally with a minimum of formality.^[179] This is especially the case in countries with a system of Islamic law (generally strict Shari’ah or Shari’ah-compliant countries) where Saudi Arabia and Afghanistan apply a strict local Shari’ah approach to kafala, whilst Egypt, despite codification, has the same ultimate law with minor differences. This strict Shari’ah approach contrasts with other Muslim majority countries such as Turkey and Tunisia, which have intermediate approaches combining elements of traditional kafala with Western and international constructs where these are consistent with their purposive or locally appropriate approaches.

There are four categories of Muslim Majority approach to kafala:^[180]

• strict Shari’ah or Shari’ah-compliant codified model;

• post-colonial pragmatists with varying judicial controls;

• permitting adoption via a purposive approach and influence of ‘urf; and

• signatories with characteristics of the above groups.

In terms of numbers, according to Bargach, at present only Moroccan children are routinely adopted; otherwise, ‘the international placement of children under Kafala remains rare, or even non-existent, except for nationals living abroad (apart from) individual cases’.^[181] However, the evidence does suggest that a number have in the past migrated from Pakistan to Canada (this is now on hold indefinitely).

A. Strict Shari’ah or Shari’ah-compliant Codified Model - No Recognition, No Clarity, No Flexibility

Muslim majority states such as Saudi Arabia and Afghanistan maintain there is no analogy between kafala and adoption, and will not permit the removal of the child from the country. Egypt has a similar but slightly more nuanced approach.

In Saudi Arabia, ‘Qur’anic revelation and detailed judicial texts (with an) intend to cover all aspects of life’.^[182] Although there is a basic law, the legal system relies upon a ‘traditional corpus of Islamic law, Fiqh, to an extent unequalled by any other existing national legal system’,^[183] permit­ting only a literalist interpretation of the Qur’an and discouraging ‘innovation’. Accordingly, cases and authority on kafala is rare. As a result, although there are few cases or works on how laws of kafala would be interpreted, this is further complicated by the fact that arrangements are often informal amongst family members. Secondary sources such as foreign missions (for example, the British in the country) have confirmed this strict interpretation (an effective ban on ‘adoption’) that ‘local law does not allow the adoption of children by foreigners’.^[184]

In Afghanistan, although civil law is formally present (with Hanafi Fiqh filling most gaps^[185] except on judicial divorce^[186]), in practice a combination of Islamic law mixed with custom (‘urf still governs many day-to-day interactions with law ‘shaped by... Hanafi law on the one hand and the conservative male dominated tradition of the tribes on the other’.^[187]

In matters of kafala, the civil law provides for the provision of care with the court to intervene^[188] having regard to the interest of the child.

jurisprudence.^[190] Importantly, a carer take cannot take a child on any journey.^[191]

In Egypt, as in Saudi Arabia and Afghanistan, there is no legal concept of adoption. Instead, kafala permits a care arrangement wherein the ‘foster parent protects, feeds, clothes, teaches and loves him or her as her own without attributing the child to him but also without giving him the rights which are reserved under Shari’ah for the natural child’.^[192]

There has been no publicly available information on legal change following the Arab Spring, but the approach is codified and very conservative,^[193] and in the context of other legislative priorities it is unlikely there has been change with the current system, ‘a long, labyrinthine process set up by the Ministry of Social Affairs’.^[194]

In Egypt, reforms took place in relation to inheritance, permitting an orphan to inherit in the place of their parent should the latter pass away, ‘subject to the traditional limit of 1/3’.^[195] However, this does not apply to non-related children,^[196] who are denied inheritance rights.^[197]

In light of this, the system is in many ways less generous than that based on ‘urf (custom), which would have some level of pragmatism at a local level to accommodate circumstances. Egypt’s resistance to any form of adoption initially resulted in reservations (now withdrawn) being made to articles 20 and 21 of the Convention on the Rights of the Child, despite that convention permitting and legitimising kafala.^[198] One interest­ing deviation from Saudi Arabia and Afghanistan is that Egypt allows foster parents to change the child’s name through the court^[199] for foundlings or those of unknown parentage. This is done through a process managed by the Ministry of Social Affairs, which has integrated 2,500 abandoned children into host families.^[200]

Although the naming and inheritance issue runs counter to the other strict Shari’ah adherents, and interestingly is rare in Muslim-majority states, the naming is only for those whose names are unknown and inheritance only for relatives.

The strict Shari’ah group is characterised by inconsistent application of rules on moving the child outside of the jurisdiction and on matters of permanency, inheritance and name changes (except Egypt, to a limited degree) with some matters decided at the village or local level. This rigidity on one hand and uncertainty on the other hand means that few analogies can be drawn between Western and strict Shari’ah constructs. None of these systems represent a formal or consistent system of law that would be readily analogised with any expectations of the Western system of law, and therefore no agreement, either international or bilateral, is likely to be effective in permitting Muslim minorities to bring a child to the West from these jurisdictions under the auspices of kafala.

This fundamental incompatibility is confirmed by US Department of State advice that there is no adoption in Saudi Arabia^[201] with US law, as a comparator, requiring the adoption be irrevocable^[202] and a purported Saudi ‘adoption’ considered insufficient for US migration purposes. NGOs working in Egypt have confirmed that the situation is similar in practice,^[203] whilst ineffective and inconsistent governance in Afghanistan continues to make any consistent system or rule of law impossible on a national level.

B. Post-colonial Pragmatists

Countries such as Morocco and Pakistan have certain conditions before kafala can take place and arguably do not reject international migration outright, so long as it is preceded by a period of care and control in that country, with approaches derived from a combination of custom, Islam and colonial law. The practice (Morocco) and law (Pakistan) is that the child and parent must be the same religion, and the system in both is similar to Western countries, with close safeguards on the care assess­ment of the attributes of the parents.

The Pakistani system of guardianship represents a legal hybrid between a common law system and Islamic rules through the vehicle of guardianship which permits a solution for orphans within general con­structs of traditional kafala. Adoption as such is not governed by any law in Pakistan according to the Pakistani government, but it is also not officially prohibited. Despite this, rights apart from inheritance are protected through a kafala-style regime via the Guardians and Wards Act 1890.^[204] This act may allow a child to be in the permanent care of a family. Article 7 permits any person to be made guardian of a minor^[205] and the law overrides Shari’ah.^[206] Safeguards intended to protect the key interests of kafala include a provision that the court may not appoint a guardian in the cases where the father is alive and not unfit to take on that role.

O’Halloran provides an overview of the judicial process in Pakistan:

Applicants... seek a guardianship order in respect of an orphan or foundling... will be assessed by government officials (in) the form of a home study report accompanied by the usual references and an assessment of their eligibility and suitability to provide a home environment likely to safeguard the welfare of the child... if approved... they will be vested with custody and guardianship rights. If the child’s parents are known... they... enter into an irrevocable, bilateral, intra-familial agreement in writing in which the birth parent/s clearly waive any right to reclaim their child.^[207]

Such a determination or agreement may include where a child will ordinarily reside.^[208]

Regarding the matter of inheritance, once relatively progressive laws permitting orphaned grandchildren a share of an estate came under attack in 2000 from the Pakistani federal Shari’ah court^[209] and the current status appears to indicate that laws on inheritance do not permit orphaned grandchildren (and presumably kafala children) to inherit.

Kafala matters have, however, been decided in favour of adopting parents in the courts, although precedents are scant and often turned on the facts. In Mst. Irfana Shaheen v Abid Waheed,^[210] two separate cases of custody of adopted children were considered. In the first case, the spouses ‘adopted’ a female child, aged a month and a half. After divorce, the foster father forcibly took custody. The foster mother claimed custody as ‘the man could have no special or preferential right over the woman to retain custody’. On the face of it this was a custody decision; however, the court went further and observed that ‘the welfare of the child at this stage would also demand that he/she should remain in the custody of the female partner of adoption’.^[211] The second case pertained to a newborn orphan. The court decided the person who found the adopted child would have ‘the exclusive right to... custody... and no private person except the... real parent would have the right to deprive her of its custody’.^[212]

The traditional view has been that as long as the child is brought up as a Muslim, the court will agree to such arrangements (kafala, knowing it may lead to adoption elsewhere) and will give permission for the child to leave the country.^[213] So established are the ‘guardianship’ kafala arrange­ments in the country that ‘where there is not enough money to support a child the shortfall may be borne by the Zakat and Asher fund’.^[214]

This established system has recently become less certain, with Pakistan raising objections with Canada on the basis that intercountry adoption from Pakistan is inconsistent with the laws of Pakistan.^[215] Canada acceded to this request and stopped all visas for Pakistani children under kafala arrangements, stating:

As a signatory to The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention), Canada has committed to adhering to principles designed to encourage cooperation between countries and mutual respect for state laws in order to best support the protection of children.^[216]

A similar regulation was signed by the then Minister for Immigration and Border Protection in Australia in 2015, with the result that applications for adoption visas from Pakistan cannot be accepted.^[217]

Notwithstanding the above, Pakistani law in principle permits the removal of the child as long as the best interests have been taken into account and robust procedures followed to ensure child welfare. Like Western systems, the arrangement can in practice be permanent within country, with the law silent on matters of naming. Inheritance is one issue where there are disconnects between Western and Pakistani require­ments, with a kafala child not able to inherit their share of the estate.

Although the Pakistani approach gives a theoretical framework for analysis and significant hope for comity-based arrangements as the irrevocable deed is unique in Muslim-majority countries, given the uncertainty of the approach at present in Pakistan between the formal law and the strong views of the government, it would be unwise to commence any arrangement for the removal of children until legal clarity arises around the status of such children. In particular, it needs to be clearer whether such removal will be sanctioned through government processes and take place with appropriate safeguards.

Morocco, like Pakistan, represents a melding of the pre-existing colonial era adoption and Islamic precepts. Abandoned children are treated in accordance with the rules of kafala^[218] and, similar to what happens in Western countries, can be provided with a new family environment and long-term guardians. The court may also permit removal of the child on strict conditions. However, the Moroccan system differs from Western constructs, as it is robust in its rejection of any conception that suggests filial links can be established by any form of legal process or of any analogy between kafala and legal adoption,^[219] and the rules do not create legal inheritance rights for the child.^[220]

Despite some important differences, the codification of kafala has provided safeguards for children and clarity to Moroccans and expatri­ates, particularly from the Moroccan diaspora seeking to enter into a kafala arrangement in relation to a child. The Moroccan Ministry of Justice and Freedoms has released a guide explaining the policy precepts and implications. Kafala is only available to those who meet strict criteria requiring sound finances and character, with arrangement avail­able for Muslim couples, Muslim women and community institutions.

In practical terms, a non-Moroccan family can present the same dossier to the ministry as a Moroccan family, with requirements as to religion but not nationality. Kafala may occur in two situations: either by consent of the parents or by a judicial order for an orphan.^[221] There is a time period of around a month and a half from meeting the child to requesting kafala and taking the child outside the country.^[222] The only requirement in terms of departing is that the child must have the right to enter the other country and there must be an undertaking of care suitable for a Moroccan judge,^[223] including that the child will have a stable legal environment in that country.^[224]

The law was amended in the last decade to conform to obligations under the United Nations Convention on Children’s Rights.^[225] Morocco has also signed the ‘Child Protection Convention’. It was through a similar arrangement (from Algeria) that the Harroudj case arose.^[226]

Pakistan and Morocco represent a balance between outright rejection of all Western precepts and providing safeguards for the migration of children, including a period of care before arrangements are formalised. Both restrict kafala to Muslims and deny inheritance or the establishment of filial links, although this is likely of little consequence, as kafala is only available to Muslims who would be likely to adhere to these tenets regardless. Importantly, both reference strongly the best interests of the child, and consider the character and means of the parent with wording similar to the Western system of adoption.

C. Permitting Adoption via a Purposive Approach and Influence of ‘Urf

Tunisia is a Muslim majority state with a codified system of law in relation to kafala and a permissive approach to full adoption almost analogous to Western adoption. It is one of the few Islamic-majority countries (with Turkey and Indonesia) to permit disaffiliative adoption in a legal and formal sense. Tunisia is unique in the Islamic world as its tiered approach to adoption arose through a pragmatic approach to economic malaise as well as incorporation of local cultural practice into law (‘urf).

Originally much of the Islamic family law was derived from ‘urf, with states ‘retain(ing) a residual affiliation with pre-Islam(ic) culture and practice which does not always fit comfortably with Islamic law’.^[227] Local customs are seen in Hadiths and ‘the history of the Islamic legal tradition (is an) encounter between Shari’ah and the different regional customs’,^[228] ‘systematised and Islamicised by... early scholar-jurists (with) discon­tinuity and mutation... necessitated by geographic and temporal changes’.^[229] The acceptance of adoption in the Tunisia can be viewed in this context, with social change and local historical and cultural con­ditions creating an approach to adoption that differs substantially from other Muslim-majority approaches.

Tunisian adoption law contains no nationality or religious require­ments, although judges have held adoptive parents must be Muslim and ‘a rational male or female, married, ethical, healthy... and able to look after the affairs of the adoptee (and that) the age difference... must be at least 15 years’.^[230] The law ‘concerning public guardianship, unofficial tutorship and adoption’ was regarded as a cardinal achievement and a major breakthrough for Tunisia,^[231] and ‘by 1994, three quarters of children leaving orphanages were adopted’.^[232]

The law was not a colonial adaptation, but formed organically due to needs of children post-independence in the absence of established care structures. In 1955/56, during an extremely cold winter resulting in the deaths of many children across Tunisia,^[233] civil society was activated to respond and infant care became a priority. The decision to permit adoption was made at the time not only considering giving children a better life, but life itself.^[234] It was also a combined example of ‘urf, as a local custom that ‘families preferred to establish a filial link as a result of the maximalist attitude of families desiring, a real filiative link’.^[235] As such, the law not only permitted adoption but emphasised the necessity of treating the adoptee as if they were the actual son or daughter of the adopter. This law has not yet been revoked following the Arab Spring. Chapter 6 of the Tunisian Civil Code states that the adoptee has all the civil rights resulting from lineage, including the adopter’s last name and inheritance.^[236] Safeguards in the system include a tutorship and care agreement being translated into adoption, permitting a period of trial care prior to formal adoption.

Historically, foreigners could adopt, but this was abolished in 1996 when Tunisia signed the United Nations Convention on the Rights of the Child in which article 8 requires ‘state parties respect the right of the child to preserve his or her identity, including nationality, name, and family relations as recognised by law’.^[237] As will be discussed below, this protection of cultural heritage is now embedded into most Western constructs of adoption.

This is a uniquely local approach to kafala which can be distinguished from the colonial pragmatists as it is an organic Tunisian law and reflects local custom, with filial bonds established and a child having full rights of inheritance after a period of kafala.

Although Tunisia has banned foreign adoptions based on an interpret­ation of its international obligations, in practice, many Western countries have substantial safeguards to protect and guard the issues, such as culture and language, that were of concern to Tunisia in banning such adoptions. On this basis, and considering the difference in Tunisia’s approach to other Muslim-majority states, there appears to be a high degree of potential for comity-based arrangements to facilitate adoption by the Tunisian diaspora abroad.

D. Signatories - Turkey

Adoption in Turkey is subject to codified law.^[238] Unique amongst Muslim-majority countries, Turkey is a signatory to the Hague Intercoun­try Adoption Convention.^[239] Despite this, the Turkish model is not far different from that applied in Morocco, and has similarities to the Tunisian tiered kafala to the adoption approach practised by all but the strict Shari’ah adherents. The Turkish approach does not ignore but instead incorporates aspects of kafala into an international process.

In terms of process, a legal determination is made on an application^[240] for a temporary caring arrangement for one year, with surveillance and monitoring every three months. After the one-year period, a court will consider the final evaluation from the directorate and may issue a decision^[241] permitting adoption. If the applicant is a foreigner from a Convention country, they are required to obtain approval from their competent authority.

As a result of Turkey signing the Convention,^[242] the usual procedures under the relevant conventions are available for adoption to Western countries. However, unlike many Western models, Turkey incorporates kafala into the initial stages of its domestic adoption process, and permanent adoption occurs only after a kafala-like relationship has been established for a period, and with the court’s and ministries’ approval. Turkey provides an instructive example of the possible alternative approaches for countries around kafala to balance internal religious requirements and engage in the relevant international instrumentalities. Although signing the convention is not a practical prospect for many Muslim-majority states, it does provide an instructive example of a palatable set of procedural safeguards that could be emulated.

To sum up, most countries require either in practice or in law for the parents to be Muslim, and most prefer the name to remain the same and do not permit inheritance. Most will permit the removal of the child, and all apart from the strict Shari’ah group refer explicitly to the best interests of the child and the capacity of the parent to maintain the child and the child’s care arrangements, and consider if the parents are of good moral character as defined in each state.

Although of the countries analysed only Tunisia and Turkey allow a relationship to be created and inheritance to occur, most Muslim majority states have ‘(unique) laws (which) regulate the established institution of Kafala to formalise and regulate covenants of care’.^[243] On this basis, there is considerable scope to identify possible areas for comity-based arrangements. These arrangements seem most promising in states that have adopted a ‘post-colonial pragmatist’ or ‘permitting adoption via a purposive approach and influence of Urf” approach to kafala where many of the attributes are similar or identical to the approaches for adoption in Western states.

IV.