Wednesday, 24 April 2013

On Morocco, Kafala and the 1996 Hague Convention

Kafala - I’m reliably informed by those who know better about such things - is the closest Islam comes to the Judeo-Christian concept of adoption.  It is the commitment by an adult to take care, free of charge, of the education and protection of a child as a parent would do for his or her own.

It differs from adoption, in that a kafala arrangement does not extinguish the child’s legal relationship with his or her birth parents.  The child keeps the name of the birth family, special rules on inheritance apply, and (on attaining adulthood) the members of the kafala family are not considered blood relatives.  They are therefore not muhrim to him or her.  Muhrim refers to the rules on family relationships that regulating marriage, permissible behaviour and so on.

Kafala emphasises that the parents assuming the child’s care are not replacing the birth family, but merely acting as trustees or caretakers.

Enough of my awkward attempts to explain complex Islamic principles – and if any Islamic jurists think I’ve got any of the above badly wrong, do please correct me!

I mention kafala because recent changes in the law surrounding it in Morocco risk leaving parents and children in limbo.

Until recently, Moroccan law allowed Muslims – including converts – to assume guardianship of abandoned children.  However, a change in the law last September restricted kafala to Moroccans, meaning that foreign Muslims were no longer eligible to have children placed in their care.  Morocco’s Justice Minister defended the change, which he described to parliament in November 2012 as designed to better protect the interests and identity of children. 

Morocco's Parliament in Rabat

"We found that there were many foreigners who declare themselves Muslims, stay in a hotel and, when they get their child, they leave the country. How can we be sure that they will respect the law and protect the child?"

All of this is a cause of particular heartache for non-Moroccan nationals who had started the kafala process before the change.  Agence France-Presse reported at the start of this week on the plight of a number of individuals affected.  One French couple, Yassamane and Eric, had been waiting to have a child placed with them for more than a year.  Said Yassamane, who gave up her psychology practice in France and moved to Morocco to complete the kafala process: 

“I was awarded my child in April 2012.  It was the happiest day of my life.  But since that date, the judicial procedure that usually lasts a few months has dragged on for more than a year." 

Another affected is Gabriel, a Spanish journalist.  He is waiting to see whether the legal change will affect the kafala decision to place with him of a fifteen-month-old boy. "I'm afraid this decision will be applied retroactively," he said.

More than 100 families - Spanish, French and Americans, as well as Moroccans living in Europe – had children placed with them before the law was changed.  They complain that normally routine court hearings are being delayed indefinitely, and applications have ground to a halt.  They are waiting to see whether the fear given voice by Gabriel comes to pass:  will the change be retrospective in effect? 

In the meantime, many of them continue to visit the children who have been matched with them at the orphanages where they must remain.  Some allow visits to last for six hours a day, but one (in the southern resort town of Agadir), restricts visits to an hour a day.

All very depressing…

But in the interests of saying something mildly helpful, I offer this:  the 1996 Hague Convention on Child Protection recognises and supports international kafala placements.  The Convention entered into force in Morocco in December 2002.  It is now also in force throughout the EU Membership (except for Belgium and Italy, who really need to get on with it!)

If the Moroccan authorities are concerned about foreign applicants and how they will act when they return abroad with a child, I suggest the answer lies in the Convention.  The Moroccan authorities could include in the kafala decision such protective steps and measures as they thought necessary and appropriate.  Under the Convention, that kafala decision (and any conditions attached to it) would be recognised and implemented throughout Europe (and elsewhere, although unfortunately, the Convention is not yet in operation in the USA).  Only in very limited circumstances – for the most part if procedural safeguards had not been observed when making the original decision - could recognition of the decision be refused.  

So, Moroccan authorities, look to the Convention.  It’s there and it works.  Use it!

1 comment:

  1. I wonder how we would treat the enforcement under Art 28 of a Moroccan order providing for kafala. Would we equate it with an SGO? Is that the closest we have to kafala?