The etymon of the word kafala can be traced back to the verb ka-fala, which means, in classical Arabic, "to take care of", "to feed". Kafala, therefore, indicates the activity of raising and feeding a child and finds its full legitimacy in the Koranic principle according to which every good Muslim is required to help the neediest, especially children in a state of abandonment. The Koran, in fact, expressly forbids adoption (XXXIII: 4-5) because it severs the ties between the abandoned child and his or her family of origin, but provides for a contract between the parents and a third family, which undertakes to maintain and educate the child, without the parents having to bear any expense. Starting from a sura of the Koran having as its object the management of the property of an orphan child, through an indirect interpretative mechanism, the very rationale of the institution is identified in the care and guidance to the growth of a child in a state of abandonment offered by an adult.

The foster child does not legally become part of the family that takes him/her in and the foster parent is not granted powers of representation, which is, instead, attributed to the competent public authorities. However, the institution goes beyond the mere economic support of a child and is considered to be more properly an instrument for the protection of a child in need rather than a guaranteed instrument used in the contractual and economic field.

 

Therefore, in Islamic law, the kafala is an institution through which a minor (makfoul) is entrusted to the care of a Muslim adult (kafil) who is committed not only to his economic support but also to his education and instruction. The kafala, which extends both to minors who have a legally recognized filiation link, as well as to minors of unknown filiation, is constituted by an agreement, usually through an exchange of consents between the kafil and the family of origin of the makfoul (so-called consensual kafala) or through a declaration made before a judge (so-called negotiated kafala). The kafil, is usually a relative, but in any case he must be of age, Muslim and have the ability to meet the obligations arising from the task assumed.

The Kafala is, therefore, unsuitable to give rise to a filial relationship, ceases with the attainment of the age of majority by the makfoul and does not assign to him any hereditary rights.

 

In Islamic countries there is an (almost) uniformity of the provisions governing the kafala; in fact, there are no profound differences, since the institution is anchored to the legal models of these nations that, as known, are considered to Islamic tradition. 

Framing kafala in Western legal systems, on the other hand, appears more complex, although it is fully recognized in the Convention on the Rights of the Child of 20 November 1989, the Hague Convention on the Protection of Children of 1996 and the United Nations Guidelines on Alternative Care for Children and the related UN General Assembly resolution of 2009.

The problem of the legal value to be attributed to the institution of kafala has arisen, above all, in relation to the adoption of children who have already been subjected to kafala in the original country and it has been dealt with differently in the various European legal systems.

Among them, Spain has adopted rules for the recognition of the institution of kafala in the domestic legal system, providing for the adoption of a child subjected to kafala by a couple of Spanish citizenship. Germany has also provided that an abandoned child subjected to kafala may be adopted if the applicant couple has German citizenship or at least has entered into marriage according to national law.

In France, intercountry adoption is excluded if the national law of the adopter or the spouses or the place of origin of the child prohibits it, and, therefore, kafala does not in fact allow for the adoption of a Muslim child. However, if the child was born and habitually resides in France or, for at least five years, has been received in France and raised there by a person of French nationality, he/she may apply for French nationality and be adopted.

 

In Italy, although kafala has many affinities with the institution of temporary foster care, it has raised a number of critical issues in relation to the admissibility of the child's entry into the territory of the State on the basis of family reunification or to the possibility of finding alternative solutions to make possible the recognition of kafala in the Italian system using the adoption in special cases. In general, the issue concerns the balance between the commitment of the Italian State to avoid circumventions of the rules on immigration in terms of public safety and the overriding interest of child protection.

On the issue of family reunification, the problem has arisen with reference to the possible manipulation of kafala, which can reasonably be expected in the event that it is arranged outside of the institutionalized procedures with an agreement of a purely negotiated nature. In the absence of any judicial intervention aimed at verifying the prerequisites of the situation of abandonment of the child and the suitability of kafil, kafala could be indeed used to circumvent family reunification.

The Italian jurisprudence, on this point, has offered a relevant specification, clarifying that, where the constitutional values of reference are multiple (as in the case of family reunification in which, on the one hand, there is the need for the protection of minors and, on the other hand, the protection of the borders of the State) may be considered adequate only the interpretation of the rule that has the basis of a fair balance of interests at stake.

Therefore, beyond the form in which the kafala is ordered, it will be the task of the Italian administration and jurisdiction to verify whether in practice there are the necessary conditions for its recognition.

In the hypothesis that there is actual evidence of evasive intent on the part of the foster parents, the judge will have the duty to refuse to authorize the entry of the minor considering its contrariety to the principle of public order, according to which no one can resort to "do-it-yourself" procedures in identifying foreign minors in a state of abandonment abroad to be received in Italy.

 

The supranational jurisprudence, noting the different approaches followed and the lack of consensus between the various national systems on the issue of adoption of foreign children entrusted in kafala, excludes the possibility of considering configurable a positive obligation by the States to assimilate kafala to adoption (Harroudj v. France, No. 43631/09, EDU Court, Fifth Section, January 4, 2013).

On the other hand, since kafala cannot be equated with adoption, the child under guardianship is not included among the direct descendants who, according to Directive 2004/38 on the right of citizens of the European Union and their family members to move and reside freely within the territory of the Member States, fall within the notion of "family member". However, it is clarified that the minor may be included in the notion of "other family member" and, consequently, Member States, bound to preserve the unity of the family in a broad sense, must facilitate the entry and residence of the minor (on this point the Grand Chamber of the CJEU, MS v. Entry Clearence Officer, UK Visa Section, C-129/18, 26 March 2021).

 

(Focus by Nadia Spadaro and Alessandro Cupri)

 

Essential Bibliography:

 

R. Aluffi Beck Peccoz, Le leggi del diritto di famiglia negli stati arabi del Nord-Africa, Dossier Mondo Islamico, Torino, 1997

 

J. Bargach., Orphans of Islam: Family, Abandonment, and Secret Adoption in Morocco, Lanham, 2022

 

A. Buchler and E. Schneider Katasseh, Fostering and Adoption in Islamic Law – Under Consideration of the Laws of Morocco, Egypt, and the United Arab Emirates, in Electronic Journal of Islamic and Middle Eastern Law (EJIMEL), 2018, 31

 

L. Buskens, Sharia and national law in Morocco, in J. M. Otto, ed, Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, Leiden, 2010, 113 

 

S. Calvini and M. Melis, Gli schiavi parlano e i padroni confermano, S. Cesario di Lecce, 1999

 

M. Franzini, Formazione alle competenze interculturali nell’adozioni internazionale, Milano, 2012

 

E.M. Le Feuvre Cervini, Promozione, Protezione ed Attuazione dei Diritti dei Minori, Torino, 2014

 

J. Long, Kafalah: la Cassazione fa il passo del gambero? nota a Cass.civ., sez. I, sentenza 1° marzo 2010, n. 4868, in La nuova giurisprudenza civile commentata, 2010, 837 

 

U. Massim and J. Sloth-Nielsen, Islamic kafalah as an alternative care option for children deprived of a family environment, in African Huma Rights Law Journal, 2014, 322

 

S. Mondino, Diversità culturali e best interest of the child- i giudici italiani e i genitori marocchini tra enunciati di diritto e rappresentazioni normative, Milano, 2017

 

M. Orlandi, Le Adozioni Internazionali in Italia: realtà e disciplina giuridica, Milano, 2006   

 

A. Pastena, Recognition of Kafala in the Italian Law System from a Comparative Perspective, Newcastle upon Tyne, 2020

 

A. Pisano, I Diritti umani come fenomeno cosmopolita – internazionalizzazione regionalizzazione, specificazione, Milano, 2011

 

M. Sayed, The Kafala of Islamic Law: How to approach it in the West, in P. Lindskoug, U. Maunsbach e G. Millkvist, eds, Essays in Honor of Michael Bodgan, Lund, 2013, 313

 

I. Zilio Grandi e A. Ventura, Il Corano, Milano, 2010