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!

US Supreme Court gives decision in Transatlantic Custody Dispute

The US Supreme Court gave Judgment on Tuesday in a long-running custody dispute.

The court is the highest in the US, which seldom deals with family cases unless they raise questions of national significance.  The Judgment relates to Eris Chafin, the daughter of Jeffrey and Lynne.  Jeffrey is a US national and Lynne is Scottish.

The US Supreme Court Building

Lynne and Eris lived in Scotland from 2007, whilst Jeffrey was serving in the US Army as a bomb disposal expert.  Their relationship ran into trouble in 2010.  Lynne travelled to the US with Eris to try to salvage the relationship.  She was deported for overstaying her visa.  She was forced to return to the UK leaving Eris with her father.

In 2011, a Judge in Alabama gave Lynne permission to take Eris back to Scotland.  This was on the basis that that was Eris’s habitual residence under an international treaty dealing with parental child abduction, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”).

Lynne left the US with Eris for Scotland shortly after this decision, which Jeffrey appealed.  The appeal court – the 11^th US Circuit Court of Appeals - dismissed the case, saying the issue was academic because Eris was already in the UK and therefore beyond the US court’s control.

The Supreme Court, however, disagreed.  The court, consisting of nine judges, unanimously decided the 11^th US Circuit Court had got it wrong.  It should have considered the merits of Jeffrey’s case.  It was not enough just to say the point was moot because the child was now living outside of the US.

Chief Justice John Roberts wrote:  “This dispute is very much alive [and the parents] continue to vigorously contest the question of where their daughter will be raised.”

The other Judges agreed, and were critical of the time that had been allowed to pass.  Justice Ruth Bader Ginsburg commented that dragging out the case “is hardly consistent with [the Abduction Convention’s] objectives.”

Reports indicate that there are custody proceedings already underway in Scotland about Eris.  No doubt, on the back of the Supreme Court’s decision, a renewed custody application will be made about her in Alabama.  It is quite possible there will be two conflicting decisions made by courts on each side of the Atlantic.  An issue will then arise about whether and how a Scottish decision is recognised in the US, and vice versa.  Eris’s future is far from certain, and court proceedings seem likely to wear on for some time. 

The US Supreme Court was dealing with one international agreement, which focuses on parental child abduction.  However, there is another agreement from the Hague Conference that would help in Eris’s situation.  This is the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the Child Protection Convention”).

The Child Protection Convention contains rules on which courts should take responsibility for resolving disagreements about children and their upbringing.  The general approach is that it is the courts in the country where the child usually lives, although there are some exceptions to this.

The Child Protection Convention also has a rule to ensure that litigation is not run in parallel in two countries.  This is to prevent potentially conflicting decisions.  Under the Convention, a court should not make decisions about a child’s future if it knows a court in another country is already considering the matter. 

Last, the Child Protection Convention contains a series of rules so that custody decisions are recognised internationally.  So, a parent who does not like a decision taken in another country cannot just ignore it.  Under the Child Protection Convention, almost all custody decisions taken in Country A must be respected and implemented in Country B.

The Child Protection Convention started operating in the UK in November 2012, so it is still a pretty recent development in custody cases like Eris’s.  As at today, it operates between the UK and most EU countries, some non EU-countries in Europe, and others further afield (for example, Australia, Ecuador, Uruguay and Morocco).  The Russian Federation will come on board in June 2013.

Unfortunately for Eris and her parents, the Child Protection Convention has not entered into force in the US.  There is not presently any indication about when it will.  In the meantime, therefore, Eris and her family will have to endure the inevitable stress, uncertainty, anguish and expense of custody proceedings in two countries. 

Anyone in a situation similar to that facing Eris and Mr and Mrs Chafin should take legal advice from a specialist who knows his or her way around the Child Protection Convention, and how it can help families.  Whilst the Convention cannot currently aid Eris, there are many children it can and will assist. 

Relocation Applications and the 1996 Hague Convention

Jordans’ Family Law featured on St Valentine’s Day (14 February 2013) a précis of a decision by Mr Justice Hedley on 7 December 2012.

The High Court case concerned an application by a Russian mother to relocate with the parties’ one-year-old daughter back to her native Russia.  The child’s father opposed the application, and sought a shared care arrangement.

The jurisprudence and current trends in relocation cases are dealt with comprehensively elsewhere, and are not the focus of this blog.

According to the summary (I have not been able to track down a full copy of the Judgment yet), the mother was given permission to relocate.  This was conditional upon her obtaining an order from the Russian court enshrining the contact proposals the court had accepted as being in the child’s interests.

Lord Justice Wilson (as he then was) observed in Re R (Leave to Remove: Contact) [2010] EWCA Civ 1137, [2011] 1 FLR 1336 the tension between granting a parent permission to relocate, but then attaching to that permission a contact order.  He said (at para [22]):

“Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle.  A contact order would be an order taking effect until further order of the English court.  But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court … [I]t would of course be to the court in Perth that the father would turn; for any further order of the English court would not have effect in Australia.  With the leave of the English court, he would be likely to present the judge’s judgment to the judge in Perth and seek an order for contact with L along the lines therein set out … this court [does not] automatically require a foreign, mirror order to be in place before the child leaves England and Wales.  In the circumstances in which the court has some doubt about the applicant’s bona fides in relation to the other parent’s contact, that precaution is often taken; but, in circumstances, like the present, in which the judge reached the firmest conclusion about the mother’s commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order.”

Late last year, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (‘the Hague PR Convention’) entered into force in this country.

The Convention is intended to harmonise the approach between Contracting States on matters affecting – as its title suggests – the protection of children.  It does this in relation to matters of jurisdiction (which country’s courts and agencies should take measures to protect children), applicable law (which rules of law they ought to apply when doing so) and recognition and enforcement (the intention being a measure taken in one Contracting State should almost always be recognised in another).

The Hague PR Convention is in force throughout almost all of the EU Membership (excepting Belgium and Italy), much of the rest of Europe, and countries further afield, such as Australia and Morocco.  More Contracting States are expected to come on board in the months and years ahead.  The Russian Federation has approved of the Hague PR Convention and it enters into force there on 1 June 2013.  A full status table is available on the Hague Conference website.

If the Hague PR Convention had entered into force between the UK and the Russian Federation, it would have neatly sidestepped in the recently-reported case the tension identified by Wilson LJ.  The English court could have made a contact order at the same time as giving permission to relocate.  That contact order would have been (except in exceptional cases) automatically recognised and capable of enforcement in Russia (Articles 23, 26 and 28 of the Convention).  The father could have sought advance recognition of the contact order from the Russian authorities to ensure there were no obstacles in this regard (Article 24), prior to his daughter moving.  There would have been no need for the mother to obtain a separate order from the Russian court embodying the contact proposals. 

The Ministry of Justice has recently published a guide on how the Hague PR Convention will operate practically, and it is critical reading.   

It is still early days for the Hague PR Convention, but it promises to be an extremely valuable tool – especially as more Contracting States sign up to it – for those working to ensure the best outcomes for children in families where there are transnational issues.