PROSPECT FOR CHANGE, ADAPTATION AND RECOGNITION

In the last decade, new approaches to kafala in the West have been proposed by Islamic scholars. This revisiting has been driven by the social and legal change around adoption and the realisation that both Western and Islamic legal approaches have similar goals.

A recent proponent of the view that legal and cultural change in the West has increased analogy with kafala is the Muslim Women’s Shura Council, which released a report suggesting that adoption can be accept­able as long as ‘ethical guidelines are followed’,^[257] seeking to ‘ignor[e] the sophistication and nuances of both Western law and Islamic dic- tates’^[258] and describing kafala as an institution that ‘closely resembles what is known today as the practice of open adoption’.^[259] The report concludes that ‘open, legal, ethical adoptions can be preferable to... institutional care and other unstable arrangements’.^[260] Controversially, this paper was produced by women who reside as minorities in Western states, and as ijtihad, it is inconsistent with the current consensus (ijma') on the issue.^[261] This being said, however, it does raise interesting purposive arguments around the similarities in intent and practice of adoption between the West and the Islamic world.

Nurullah Ardic proposes that selective appropriation of Western insti­tutions is warranted, to accommodate ‘exigencies of modern life’ and prioritise ‘social change over textual sources of Islam’.^[262] Ingrid Mattson argues that ‘flexibility in Islamic law for accommodating local cultures and customs may lead to a solution in... (relation to) adoption’;^[263] this view appears to be shared by the approach of countries such as Turkey and Tunisia.

Faisal Kutty considers the NSW adoption programme a promising step toward accommodation, which he describes as a two-way street. Kutty argues that key conflicts around filial links and inheritance resulted from a lack of clarity on the differences between Islamic and Western adoption, and a lack of cross-fertilisation between ideas coupled with reluctance to look at the purpose rather than the text (to protect children in pre-Islamic tribal society). In Kutty’s view, kafala can be reformed where reforms are consistent with the ‘maqasid al Shari’ah (higher objectives of the Shari’ah) provided that the Western legal system accommodation matters are not subject to legal change.^[264]

Outside Islamic scholarship, there has been consideration by Western jurists of the future of adoption. Ironically, many of these jurists considered (although did not accept) the option of abolition of adoption at the precise time where the Western conception of adoption had come to be closest to the Islamic conception of kafala. In 1997, the NSW Law Reform Commission reviewed adoption.^[265] They proposed adoption be maintained but alternative care expanded, and adoption should only apply where circumstances of the particular child dictate it best meets his/her needs.^[266] In 1999, the New Zealand Law Reform Commission suggested adaptation of the law with the effect (although not expressly in those words) that it would be closer to Islamic precepts^[267] (a modified form of guardianship). The report considered adoption outmoded,^[268] as it created legal fictions and reflected the court’s increasing preference for guardi­anship arrangements.^[269] It also identified the main impediments as permanency, status and succession.^[270] The ultimate option was a tiered approach, with adoption a last resort, and removal of impediments to discovering birth parents.^[271]

The final approach of the New Zealand Law Reform Commission was strikingly similar to the approach followed in Tunisia, Morocco and Turkey (and to a lesser extent Pakistan), demonstrative of the substantial similarities that now exist in legal approaches and good prospects for comity-based arrangements on kafala.

As mentioned above, the intent and effect of kafala and adoption in most Muslim-majority and Western countries is much the same: to establish an arrangement that acts to protect the best interests of the child with safeguards to ensure that the parents are suitable to undertake such a role. Despite this, there remain obvious clashes. Upon comparison, the difficulties in accommodation range from the irreconcilable such as ‘strict Shari’ah’ adherents, who will not let a child depart, to those where there appear to be few difficulties (and significant commonalities), such as New Zealand and Tunisia.

The fundamental incompatibilities (and solutions) are as follows.

A. Migration and the Permanent Nature

Kafala is, strictly speaking, a non-permanent arrangement in Islam and a permanent arrangement in the West, although some states such as Tunisia, Turkey and Morocco appear to recognise (formally or infor­mally) that the arrangement will ultimately be permanent, in a practical sense. For countries that do not recognise the permanent (or likely permanent) nature of the arrangement, this is a serious disconnect and one which is reconciled only by negotiated approaches and where international instrumentalities do not assist.

To take Australia as an example, the rules around bringing children for migration purposes and are applied through a combination of State and Commonwealth legislation. Section 116 of the Adoption Act^[272] permits recognition of adoptions from countries outside of the Convention,^[273] but only if the adoptive parent has a superior right to the birth parents^[274] and the adoptive parent has lawfully acquired full and permanent parental rights by the adoption^[275] via laws relating to adoption of the country in which the child is normally resident.^[276] On this basis, many Kafala arrangements would not meet the legal requirements for adoption, even though some Muslim majority states have elements similar; most Muslim majority states would baulk at describing a right superior to the birth parents, even if describing the relationship as permanent.

The legal framework may permit a child visa where the kafala relationship already exists via the ‘dependant’ provisions. In a provision unique to Australia, as long as the child is in an ‘arrangement in the nature of adoption’ made in accordance with the usual custom of practice of that culture,^[278] and the relationship is stronger than between the child and any other person^[279] and formal adoption was not available or was not practicable and the relationship is not contrived to circumvent migration requirements,^[280] a child could accompany the migrating family. This requirement cannot be complied with where a new arrangement is proposed, or where the kafala parents themselves are not applying for migration; therefore a new kafala arrangement is unlikely to meet Australia’s migration requirements.

In relation to migration and acceptance of foreign law, issues of comity were considered by the High Court in 2012 in the case of Tahiri.^[281] In this instance, the delegate was asked to decide in relation to child custody and public interest criterion 4015.^[282] The delegate considered that Afghan law was relevant in interpreting the migration law of Australia as written in that it referred, inter alia, to the ‘law of the applicant’s home country’. The court held that this was open to the delegate and a proper exercise of power.

The acceptance of the court of such legal requirements which were drafted in response to international obligation does give credit to the idea that a comity- or bilateral-based approach may have promise in relation to kafala. The precedent from the Tahiri case was that if a bilateral arrangement was entered into in order to permit kafala arrangements for migration purposes and such an arrangement was codified in Australian law, the law of the sending country could be a relevant factor.

B. Inheritance

As outlined above, in the Islamic world it is almost universally accepted that a kafala adoptee cannot inherit a share of their adoptive family estate. This is difficult to reconcile with Western conceptions where each child may lay an equal claim to a share of the estate. Valiani considers this critical to the extent that ‘even if a child inherits in America (for example) they would not be granted a share in Pakistan or other Muslim lands’.^[283] In some states, such as Tunisia, inheritance comes with kafala, in others inheritance rights are limited or difficult and in most, inherit­ance is not permitted. The Tunisian model carries potential for ‘double inheritance’ whilst other models may deprive a needy child of inherit­ance. This is a fundamental disconnect and one for which a solution in comity is proposed below.

C. Naming

Whilst changing a name was once expected practice in the case of a Western adoption, open adoptions now permit choice with retention of lineage and a preference for adoption within customs and religions. Although this was once a fundamental disconnect, it is now essentially a resolved issue between most Western and Islamic states, with no obliga­tion of expectation for a name to be changed.

VI.