Posts Tagged Adoption

SM: Kafala and migration before the European Court of Justice.

Case C-129/18 SM v Entry Clearance Officer, UK Visa Section was held last Tuesday in Grand Chamber. It concerns the application of the EU’s main migration Directive, 2004/38 and essentially addresses the fear of the Member States (many of whom appeared before the court, all arguing a rather restrictive interpretation) that the islamic system of Kafala or Kefala hands human traffickers a means to support their trade.

As I flagged in an earlier post, in which I also referred to the case involving SM, kafala is clearly not equivalent to adoption. It is more akin to guardianship or custody in advance of adoption, or in the case of the Middle East, is even used as a form of visa et al sponsorship for migrant workers (hence leading to issues of slavery and the like).

In SM’s case, Mr and Ms M are two French nationals who married in the UK in 2001. They travelled to Algeria in 2009 to be assessed as to their suitability to become guardians of a child under Algerian kafala and were deemed ‘suitable’. SM, who was born in Algeria in June 2010, was abandoned by her biological parents at birth. In October 2011, Mr M returned to the UK where he has a permanent right of residence, for professional reasons. For her part, Ms M remained in Algeria with SM. In May 2012, SM applied for entry clearance for the UK as the adopted child of an EEA national. Her application was refused by the Entry Clearance Officer on the ground that guardianship under Algerian kafala was not recognised as an adoption under UK law and that no application had been made for intercountry adoption.

The Court essentially agrees with the Member States that the case does not fall under directive 2004/38’s heading on ‘direct descendants’ (‘blood’ relatives in e.g. the Dutch version) which the Court interprets (as do the Member States) as both biological and adopted direct descendants. This is a consequence of the qualification by the lex fori itself: unlike adoption, which is prohibited by Algerian law, the placing of a child under kafala does not mean that the child becomes the guardian’s heir. In addition, kafala comes to an end when the child attains the age of majority and may be revoked at the request of the biological parents or the guardian.

Yet the Court also finds that the Member States’ concerns over human trafficking are properly addressed by the Directive’s provisions for ‘other family Members’. Unlike the right to entry for direct descendants, other family members’ visa applications must be processed taking into account an extensive examination of their personal circumstances. At 69: in the case of minors, that assessment must take into consideration, inter alia, the age at which the child was placed under Algerian kafala system, whether the child has lived with its guardians since its placement under that system, the closeness of the personal relationship which has developed between the child and its guardians and the extent to which the child is dependent on its guardians, inasmuch as they assume parental responsibility and legal and financial responsibility for the child.

That the Algerian system of kafala guardian’s assessment clearly does not meet with the 1996 Hague Convention requirements for assessment of prospective adoptive parents and the interests of the child (to which Algeria is not a party but the Member States are) is not material: such assessment must be weighed against the factual elements identified by the Court at 69, see above.

Hague and Kafala at Kirchberg. Not an everyday occurrence.

Geert.

 

 

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Qualification, lex fori and adoption from Morocco. Belgian court sinks the kafala ship.

Update November 2015: in December 2014, the ECtHR held in CHBIHI LOUDOUDI that the ECHR did not come to the rescue under either Article 8 or 14. For a similar case, see SM (Algeria) v Entry Clearance Officer, UK Visa Section [2015] EWCA Civ 1109, reviewed here and (update 20 April 2017) here (following UKSC appeal). Human rights law arguments in that case seem to have fallen down the wayside, though.

In March 2013 (only brought to media attention recently), the Court of Appeal at Gent reversed a decision by a lower court which had granted an adoption ‘light’ of a Moroccan child by a Belgian couple. In line with Belgian conflicts law (Article 68 WIPR), whether the adopted consents (typically: via its parents or a guardian) is subject to the law of the child’s habitual residence immediately prior to its transfer for adoption (or simply its habitual residence if there is no such transfer). However, that same article makes Belgian law gazump foreign law in the event of that foreign law either not requiring such consent, or not recognising adoption at all. This has often been called a lack of respect for that foreign law, among others because it necessarily requires Belgian courts to assess the assimilation of foreign ‘adoption’ institutions, with Belgium’s own views on adoption.

In the case at issue, Morocco’s ‘kafala’ was not considered to be equal to adoption. That’s because, well, it isn’t. It is more akin to guardianship or custody in advance of adoption. Parents signal their inability or unwillingness to look after a child. Followed by a court-registered form of fostering. It is quite easy to find differences between kafala and ‘adoption’ as known under Belgian law. Kafala is reversible. Kinship is not created between foster parents and child.

Belgian law therefore applied to the issue of consent. The father had not consented: it was clear that the man named on the child’s birth certificate was fictitious. The Moroccan court which was involved in the establishment of kafala seemed to have acknowledged as much and did not seem to have considered this to be an obstacle to the proceedings. This was not a cloak and dagger adoption. The eventual purpose of the proceedings, adoption in Belgium, was clear to the Moroccan court. For the Belgian court to stick to the requirement of paternal consent in spite of the Moroccan court’s willingness to see beyond that, seems a bit obnoxious.

The Court of Appeal moreover added that the necessary preliminary reports from Morocco, which the relevant authorities in Belgium ought to have sought, where not available. The Court’s line of reasoning suggests that even had such reports been available, adoption still could have not gone ahead. This reference therefore seems more of an attempt to share the blame. This case, the Court seems to suggest, is not just about dura lex sed lex; it is also about sloppy preparation.

Adoptions from Morocco have now been put on hold. In a final argument, the Court rejected any proposition that refusal of adoption would infringe the child’s human rights. The interests of the child evidently need to be taken into account in adoption decisions. However there is no human right to adoption.

Geert.

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