WHAT IS KAFALA?
The Prophet, himself an orphan, called for a different approach to orphans than pre-Islamic Arabia, where children of conquered tribes or orphans were routinely taken and their true parentage denied, taking on the name of the new family.[143]
In its simplest form, kafala is providing support for an orphan, which can occur without merging the child into the existing family unit or co-residing;[144] the arrangement may be for a limited or unlimited period but in all cases is intended to provide ‘all the privileges of being a Musalman’.[145] The issue of kafala, as with all aspects of family law, is ‘of considerable interest to Islamic legal scholars[146] and there is discussion both from the Qur’an and in Hadith that describe kafala as being a noble arrangement.
If anyone strokes an orphan’s head, doing so only for Allah’s Sake, he will have blessings for every hair over which his hand passes[147] [and] if anyone treats well an orphan girl or boy under his care, he and I (Prophet Mohamed (saws)) shall be like these two in Paradise [putting two of his fingers together!].[148]
The arrangements are subject to restrictions on the creation of filial bonds or changing names of children,[149] and kafala adoptees are generally unable to inherit by right:
Muslim law does not recognise adoption... if a Muslim adopts a child in accordance with... laws... in... any other country... (and) his adopted father leaves assets in a... Muslim country, he will not be entitled to inherit... in spite of (the) legal adoption.[150]
Whether the kafala ‘parent’ can purport to enter a permanent arrangement depends on interpretation and varies from state to state. The traditional view is that adoption is anathema as it involves the permanent and absolute transfer of parental rights to adoptive parents, a denial of ancestry and falsifying of bloodlines[151] as well as removal of the child. However, many Muslim majority state-based approaches adopt a more nuanced and purposive approach to the issue of permanency, whilst others take a stricter approach. The challenge arises when approaches are reconciled with Western legal constructs of adoption. The main issues (although not the only ones) arise due to lack of permanence where parents want to exercise full parental agency[152] and the main legal instruments have this requirement.
On this basis, the key areas of likely conflict with traditional Western constructs arise in the areas of the lawful physical removal of a child to another jurisdiction (migration), permanency (the severance of filial bonds/inability for the natural parent to ‘undo’ the arrangement), the changing of the child’s names (creation of filial bonds) and matters of inheritance.
II.