I see very often sentences like “Adoption is called Kafala in Morocco”, or “you can adopt a child in Morocco, it’s called Kafala, but the difference is that the child does not change name” or similar ideas, summarized in “adoption is equivalent to kafala”. Moroccan themselves add to the confusion, mixing both concepts as on this English website that speaks of “Islamic adoption”.
Nothing is less accurate.
Kafala does not translate as “adoption” but as “sponsorship” and should be defined as a temporary fostering of a child underage (or a disabled adult), nothing more.
What is Kafala in sharia ?
Kafala is the Islamic answer to the prohibition of adoption.
Quran specifically prohibits adoption
Before Islam, Arabs practised adoption as we know it. The adopted child took the name of his adoptive father and had a right to inheritance. Familial relationships were changed.
But it was forbidden in the Quran : because the Prophet decided to marry Zainab, divorced wife of his adopted son Zayd, it was necessary to make clear that “adoption” was just a fostering and did not create family ties similar to blood ties that would have made this marriage totally haram.
Does Kafala create familial links ?
No, it does not. The sura are very clear. Being “assimilated” or “like” adoption does not mean it is.
Kafala is equivalent to fostering : a family, usually a pair, Muslim, decide to take care of a child, provide for his needs, educate him and give him a home.
As soon as the child becomes an adult, the Kafala ends. If familial links were created, they would disappear.
Very often, Moroccan take in Kafala children from their own family : children of a brother, sister or cousin that deceased or is not, for any reason, able to take care of him. For foreigners, it adds to confusion, because there are familial links, but they haven’t been created by Kafala.
Quite often, to make things easier, Moroccan add milk kinship, if they can.
What is milk kinship ?
Remember this recommendation from an Egyptian imam that women at work let men suck their milk so that they would work in a halal environment ? That was ridiculous, but it’s based on the fact that when children of two different mothers drink the same milk they have some links similar to familial links (but not all of them) with the two nursing women and all the children nursed by these women. In particular, milk kinship prohibit marriage between the milked children and, as a consequence, allow the female (including the mothers) to show themselves without hijab to the male children.
Familial links according to sharia
To summarize :
- only biological children are entitled to name, inheritance and calling the adults “Dad” and “Mum”
- children under Kafala are entitled only to living expenses (that’s the very single objective of kafala), and can marry within the family that fosters them
- in case of milk kinship, the children cannot marry within the family and have no other rights.
Procedures and obligations in Morocco
Kafala’s process is defined in Moudawana (Family Code) and more specifically in the law number 15-01 of June 2002.
Which children can be taken in Kafala ?
An abandoned child, who is under 18 and is either :
- a child without known parents, or with a known mother that abandoned him
- an orphan child
- a child whose parents can’t pay for his support
- a child whose parents behave badly and may have lost parental authority.
Who can take a child in Kafala (be a Kafil) ?
A Muslim married pair, over 18 and having enough money to support the child, or a single Muslim woman. The Kafil has not been condemned for immoral actions, specifically against children. He has no conflict of interest with the child or the child’s relatives.
Procedure
The future Kafil asks the children’s judge to establish the Kafala, with all the necessary documents. The Moroccan administration conducts an inquiry, checking conditions. After that the court emits an order (ordonnance) establishing the Kafala.
Controls
After the Kafala is established, it can be cancelled before its term (the 18th anniversary of the child) if the tutors do not fulfill the conditions anymore. Administration can – but rarely does – make complementary inquiries to check everything is fine.
Residency out of Morocco
The child cannot be taken abroad for permanent residency without the authorization of the judge. The judge will check that a convention exists with the other country, that the child will have a stable status and that the legal frame of Kafala will be respected.
It will delegate the further control to a Moroccan consulate.
How is Kafala considered by non-Muslim countries ?
In their legal systems, non-Muslim countries acknowledge the specific meaning and intent of Kafala. Kafala could be the equivalent of a “Simple Adoption” in countries that practice it, because a Simple Adoption does not sever the links with the biological family, it just completes them. Kafala is not considered as a Plenary Adoption.
Most of the countries would not let people adopt a child if this is not legal in his country of origin. In other words, adopting in a European country a Moroccan child would necessitate that Morocco authorizes such an adoption – which is not the case.
Does Kafala give rights to family reunion visa ?
From what have been said before, there is no single straight simple answer.
In general, Kafala does not give rights to family reunion visa
but
the interest of the child has to be taken into consideration. Europe and Great-Britain, in particular, have stated regularly that a child in Kafala cannot be considered as a direct descendant of his tutors.
If the child cannot enter as a descendant, his interest requires that he has a stable familial life, and be authorized to enter on this basis.
Not all countries will easily grant that. Many requires that the child has no other relative in his country of origin that could have a “parental authority” on him and that the biological parents, if they can be identified, definitively abandon their parental rights.
Can a Kafala be transformed into an adoption once in a non-Muslim country ?
Usually not, at least not directly.
It would be possible only after the child changes citizenship. How and when that can be achieved depends of the immigration laws in this specific country. Some requires only a short number of years of continuous residency (5 years in Belgium), some requires the child to be an adult if the request for the new citizenship is not made by his parents.
In summary
Kafala is in no way an adoption. Its effects can be similar as long as the child is under 18, but they stop when the child is 18.
A child in Kafala can follow his tutors in their own country of origin, but that is not automatic. His status will change when he reaches 18 and he might have difficulties to stay there if he is not granted a new citizenship.