SOLUTIONS NOW AND THE FUTURE

Accommodation of minority groups through special rules and arrange­ments is a difficult political issue in the West. The most satisfactory approach is a ‘compromise between the demands of religion and the requirements of Australian society and law’^[284] and for minority rights to be achieved via a palatable compromise^[285] within systems where suffi­cient similarities can be distilled.

Islamic kafala and modern Western adoption have much more in common than might be expected in a superficial analysis. Despite notable conflicts, both focus on open adoptions and the best interests of the child. Further, there is significant overlap between the legal approaches of some Muslim-majority countries and Western states. In particular, the approaches of Tunisia and Morocco (and in principle Pakistan) appear to have sufficiently similar characteristics with Western systems for devel­opment of comity-based arrangements. Such arrangements could seek to safeguard the fundamental principles valuable to each community to the benefit of orphans, with procedures grounded in domestic law as occurred in the Harroudj and Tahiri cases, but with additional safeguards and codification to ensure clarity for minority communities, the kafala children and the general public.

Although broad international instruments provide little appeal, the most rational suggestion that flows from the similarities in approaches in both Harroudj and Tahiri is bilateral comity. Bilateral agreements outside the international framework could permit recognition of kafala for migration to Western states, but with substantial and negotiated safe­guards as outlined below.

To mitigate the risk and ensure the success of such a programme, arrangements in the initial stages should ideally focus on minimising fraudulent activity and the likelihood of trafficking in persons, as well as respecting fundamental Islamic reservations as to the permanency of an arrangement.

This arrangement would then be coupled with a compliance regime in country to ensure the child’s orphan status to both states’ satisfaction, and ensure that the rights of all other relatives have been considered. A certificate could then be issued that permits a legally permanent arrange­ment from the perspective of a receiving country, confirms that there is no requirement for a name change or denial of a parental right or lineage and provides the right to monitor for a set period. This mitigates the risk of a parent contriving their circumstances to ‘reappear’ and seek a migration outcome, or a child being abducted or sold. Such verification could take place through a trusted agency such as the Red Cross/Red Crescent.

The most complex matters are those of inheritance, based on the approaches of both the ‘post-colonial pragmatists’ and ‘permitting adop­tion via a purposive approach and influence of ‘Urf,’ potentially if the child is no worse off they could be dealt with under the one-third of inheritance provisions or through voluntary bequest, as currently occurs in Canada. There is also an option for a government to-government agreement for the issuance of a pre-kafala inheritance certificate indicat­ing entitlements of a child abroad; these would be taken into account when determining estates upon the death of the parent. Such an arrange­ment would put members of the Muslim community in the same position as other citizens and on notice as to their possible liabilities with respect to inheritance, but ensure the child is no worse off. This would be a difficult position to negotiate in any agreement.

On the Western side, the target is equality of access to orphans for care but to be cautious not to provide benefits unavailable to the general community.

1. limiting numbers to a pilot arrangement;

2. continual revision of arrangements and monitoring at a diplomatic level of procedures for determining kafala (as well as access to records of decisions made and the reasons therein);

3. the agreement itself to be revokable with limited notice; or

4. severance of the parental rights for migration of other family, i.e. the parents (to mitigate fraud and encourage genuine arrangements).

The result of comity arrangements are that essential interests of both communities are protected. Note that although the countries were illus­trative only (and there would be benefit from a broader analysis), the proposed approach did provide good prospects for successful pilot kafala arrangements between Australia, France and Canada with Tunisia and Morocco (and Pakistan if further legal clarity is obtained, allowing applications to be permitted once more).

3.