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Is it possible to adopt under the Islamic kafala in Spain?

The kafala or kafalah (sponsorship) is a concept of care relating to child protection that exists in Islamic countries. In Morocco, it is governed by law 15-01 of 13 June 2002 on foster care for abandoned children (published in the Official Gazette of Morocco, number 5036 of 5 September 2002).

Under Article 2 of said law, the kafeel or kafil (sponsor) commits to taking responsibility for the protection, education and maintenance of a child (makfoul) in the same way that a parent does regarding his or her child.

The kafala, which may be agreed to between relatives or established in cases of child abandonment, does not grant the child a legal child-parent relationship with his or her kafeel and, therefore, does not grant the child inheritance rights either.

This concept has the same effects as foster care in Spain. In Islamic countries, it is the concept that best protects the interests of an abandoned child, as adoption as an institution, which establishes a child-parent relationship that resembles a biological one, is forbidden by the Koran on historical grounds. As a consequence of such prohibition, the concept is found in the family law of all Muslim countries except Tunisia.

Adoption in Spain based on a kafala

Until recently in Spain, adoptions could be carried out based on the kafala system. Our authorities considered kafalas to be the best way to protect a child in Spain who had previously been abandoned and whose country of birth had constituted said concept of care in favour of Spaniards residing in Spain.

Evidence of this is the Order of the Provincial Court of Cantabria, number 71/2015 of 30 April, in which, as regards a kafala formalised in Morocco, the following was stated:

“(…) THREE.-Pursuant to Art. 18 of the International Adoption Law, the granting of an adoption shall be examined pursuant to the provisions under Spanish substantive law, as the residency in Spain of both the adopters and the adoptee has been authorised by the Moroccan authorities.

(…) it regards a child whose care and protection was assigned by the Moroccan judicial authorities to the adopters, due to the mother expressly and voluntarily waiving her parental authority, with the judgment of the Family Court of Morocco, given on 27 August 2012 (folio 15), declaring the child to be in a situation of abandonment or helplessness.

Thus, the adoption application can be approved, given that the reports submitted show that the child has positively integrated into the household of the adoptive family.”

III situation after Law 26/2015

The recently enacted Law 26/2015 of 28 July, amending the Protection of Children and Adolescents [Protección de la Infancia y la Adolescencia] System, radically changed the existing situation by inserting a new fourth paragraph under Article 19 of the International Adoption Law, establishing the following:

“As regards children whose national law prohibits or does not provide for adoption, the granting thereof (in Spain) shall be refused, unless the child is in a situation of abandonment, protected by the Public Authority.”

The reason behind the reform was due to the realisation of Spanish authorities of the existence of certain fraudulent offences in formalising kafalas in different Islamic countries.

However, such fraudulent offences cannot justify handling all situations in the same manner, evidently damaging the best interests of the child. This is currently being confirmed, as, in applying the rule, due to said reform, our judicial authorities have given an extremely restrictive interpretation of the concept of “Public Authority”, taking it to refer only to the Spanish Authority. Therefore, the granting of adoptions of abandoned children, whose law prohibits such action, unless he or she is in a helpless situation in Spanish territory and is protected here by our Public Authority, is refused.

The outcome of said interpretation is disastrous. It condemns the child, who is adoptable according to our parameters, to remain in foster care in Spain. This dramatically conflicts with the binding mandate of interpreting all laws that affect children with the principle of using their best interests as a guiding light, which is provided for by our legislation and in case law. This is particularly set forth in the preamble of Organic Law 8/2015 of 22 July, amending the protection of children and adolescents, which clearly states: “If a legal provision can be interpreted in more than one way, the interpretation that meets the interests of the child must be chosen.”

Conclusion

The reform of Article 19 of the International Adoption Law may damage the interests of abandoned children in the kafala system, as, if the interpretation of the new paragraph of said article is undertaken with the inflexibility mentioned, the children referred to, who have lost the legal child-parent relationship in the country of origin with their biological parents, will remain in Spain as second class children and will never be able to legally integrate themselves in the family of those who are affectively their parents.

Flora Calvo

Flora Calvo es licenciada y doctora en Derecho por la Universidad Complutense de Madrid y diplomada en Derecho francés por la Universidad de París XI Jean Monnet Sceaux. En la actualidad es miembro del despacho Winkels Abogados y profesora del área de Derecho internacional privado de la Universidad Rey Juan Carlos de Madrid.

Calvo colabora en multitud de publicaciones y cuenta con numerosos artículos publicados en revistas como ‘La Ley’, ‘Otrosí’, ‘Sepín‘ e ‘Iuris’.

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