WESTERN CONSTRUCTS OF ADOPTION
The legal frameworks in Australia, France and Canada have been considered in this analysis due to their codified systems of law, sizable Muslim minorities and cases or policies on kafala.
Pre-1960s adoption in a Western cultural and legal sense bore little analogy with Islamic kafala. Adoption was a full and permanent arrangement resulting in severance of ties with the birth family, a name change and withholding information regarding the true parentage. Since the 1960s, Western adoption has, through its own processes and evolution, become more closely aligned to key tenets of Islamic kafala. This convergence has not been recognised in state-based or international law approaches, with Muslim minorities largely legally unable to bring children, even orphans, to the West from their country of origin or from other Muslim majority states.Australia provides a practical example of the changes in the law and conceptions of adoption over the past 30 years. During the 1950s and 1960s, when the number of adoptions in Australia were at their peak, adoptions were generally ‘closed’; an adopted child’s original birth certificate was sealed forever and an amended birth certificate was issued that established the child’s new identity and relationship with their adoptive family.[153] During the 1980s, an adoption reform movement lobbied for and achieved progressive legislative reform across Australian states and territories, including the ‘opening’ of closed adoption.[154]
The result of this is that Australian family law at present is fairly accommodating of the needs of the Muslim community,[155] and ‘this enables Muslims to comply with both Shari’ah and Australian law’,[156] with the focus on the best interests of the child;[157] a child’s ‘given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved’.[158]
Despite the fact that only one Muslim majority country is a signatory to the Hague Convention on Intercountry Adoption, Adoption NSW has engaged in a unique process of community engagement, promoting to Muslim communities that NSW law now permits retention of cultural ties and retention of name.
Other Australian jurisdictions now also emphasise the importance of children and young people growing up with a ‘clear sense of identity... through “open” adoption practices (and) some ongoing facilitated contact between adopted children... and... their birth family’.[159] Despite these changes, it remains that NSW law does result in severance of the legal relationship between the parent and child, and children will obtain inheritance rights subject to the usual legal processes.[160]The approach to kafala more generally was considered in research conducted by the European Court of Human Rights in relation to the Harroudj case. This case categorised the Western approaches based on the choice of law rules applied in relation to adoption and identified four approaches to kafala arrangements, including:[161]
• preference to the forum state where adoption takes place;
• preference to the adoptees national law;
• preference to the adopter’s national law; or
• a cumulative approach.
Of the 22 states studied, nine states were found to have no theoretical obstacles to recognition of kafala;[162] however, some of this group had administrative burdens above and beyond general law on adoption.[163] No Western state sought to draw analogy between kafala and adoption, and France, for example, had a system similar to Tunisia and Turkey (and to a lesser extent, Morocco) by permitting care arrangements with a view to permanency and potential for citizenship.[164] Unless a minor is born or usually resides in France, adoption may not take place unless the personal law of the child permits this to occur;[165] this is a system intended to reflect comity between France and Algeria in such matters.[166] These similarities are discussed further below and provide a fertile climate for a revision of the prospects for use of international instruments or comity based bilateral agreements to bring children (particularly orphans) from Muslim-majority countries to reside with minority communities.
This issue arose in 2012 in the European Court of Human Rights when the issues of kafala and French domestic law was considered in a case that to deny adoption to a child brought to France under a kafala arrangement was to breach article 8 of the Convention[167] (a denial of family life).
An Algerian child under a kafala arrangement in the care of a French woman of Algerian descent was allowed by Algerian authorities to migrate under the auspices of kafala with the child complying with French law upon entry. A primary issue was whether the French courts had been correct in denying a domestic adoption and finding analogy between Algerian Kafala and Adoption. The court applied a broad margin of appreciation in light of the diverse approaches by member states in the aforementioned comparative law study,[168] and found the decision was not contrary to state law or internal public order,[169] accepting kafala as a mode of alterative care that did not infringe on the family life of the child. Kutty states the decision meant ‘Kafalah was fully accepted in French law’[170] and that Harroudj was ‘not deprived of any rights in not being allowed to change the kafalah to adoption’.[171]Whether this case is truly a watershed is not yet known; however, that comity is relevant, that a wide margin of appreciation is applied and that all considerations will be balanced with the interests of the child affected are important outcomes of the case. Critically the court did not see the child’s interests were adversely affected by the arrangement and took the view that such arrangements in accordance with originating state law can be sufficient.
Although the above issues appear to provide a positive impression of the prospects for kafala, 2013 interactions between Pakistan and Canada changed the position somewhat. Until June 2013, Canada had considered kafala sufficient for migration, with the ability then to convert the arrangement into adoption. In July 2013, Citizenship and Immigration Canada issued a notice discontinuing this practice in relation only to Pakistan:
Pakistani law allows for guardianship of children, but does not recognise our concept of adoption. Proceeding with further such placements would violate Canada’s obligations under The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.[172]
The decision was widely criticised by the minority Pakistani Muslim community in Canada.[173] Although the decision turned on the law of Pakistan, it will likely have implications for other kafala arrangements not purporting to be analogous to adoption.
The Canadian decision was made relying on a combination of comity and international law, namely that:... legal and procedural requirements to obtain a guardianship certificate under Pakistan’s Guardians and Wards Act do not allow for subsequent adoption in the guardian’s country of residence (and) Pakistan applies the Islamic system of Kafala, or guardianship, which neither terminates the birth parent-child relationship nor grants full parental rights to the new guardian. This means that there are... legal incompatibilities.[174]
The Islamic Foundation of Toronto[175] argued differences around adoption are accommodated in Canada with a bequest to an adopted child available and a name change possible as long as there is no lying about the filial bond.[176] Contrary to the French comity-based view, the Canadians have taken the view that the intercountry adoption framework is unable to support kafala and demonstrate that a notional lack of permanency can be fatal to the prospects for any proposed solution. Any scope for reform and accommodation will inevitably lie at the periphery of both systems rather than at the strictest degree of approaches.
III.