The kafala, an adoption that is not an adoption (2)
Marianne Roux-Bouzidi - 03/09/2012
Located in the residential area called the Oasis, the Children's Home “Lalla Hasna” is the only institution of Casablanca’s governorate that welcomes abandoned children aged from 0 to 6 years. The small 200 residents await adoptive families (kafala) in a beautiful and colourful big building surrounded by a garden and a playground.
Inaugurated in 2002 by King Mohammed VI, the establishment is managed by the Al Ihssane Association, which is entitled to prepare the kafala procedures with prospective parents before sending them to the judge in charge. Khadija, the social worker, is responsible for verifying whether the parents meet the criteria required by law (being Muslim, having a clear criminal record, being a married couple or an unmarried woman, earn a minimum income etc.). She also ensures their motivation: “Some people who come here think they will leave with a child the same evening! Others complain of the slowness of the proceedings, which may take from 5 to 6 months, but I tell them that a pregnancy lasts nine months. To foster a child you have to be psychologically prepared and this takes time.”
She sometimes faces the parents’ reluctance when they learn that there are only little boys to adopt: “People only want girls. We hardly ever have girls at the orphanage as they are adopted through other channels. There is sometimes an agreement between the pregnant woman and the future kafils even before birth. We must fight against the stereotype that girls are easier to educate as they are docile and affectionate.”
A challenging procedure for the future kafils
If according to Bukhari’s hadith, the Prophet promised paradise to the one who takes an orphan under his wing, the path before obtaining a kafala is rather difficult. Founded in 2007 by kafil parents, the association Osraty ("my family" in Arabic) accompanies people to kafala legal and administrative procedures and raises public awareness on abandoned children in Morocco. Fatima-Zohra Alami, president of the same association, deplores the legal vagueness of the procedure1. “The kafils complain that they wait too long because they get to know their future child only once their kafala application is submitted. They will then see the child every day at the orphanage and only take him/her home several months later, when a bond is already created between them. This period is long for both the parents and the child who has already experienced abandonment. We would like an approval to be issued after a real psychological interview, which would allow the parents to take care of the child without having to worry about administrative procedures.”
Currently, the policemen, the social worker and the Ministry of Endowment (Islamic Affairs) only conducted a rudimentary investigation. Moreover, no tracking is done once the child is in the care of his new family. “Judges are aware of these shortcomings. As civil society actors, we are trying improve the situation so that the interests of the child become paramount” she adds.
The association hopes that the kafala eventually becomes the equivalent of a simple adoption: “We do not ask for full adoption in any case because every child has the right to the truth about his/her origins. It is fundamental to the construction of identity. But we want the child to be able to inherit just as a biological child and that the relationship continues after they are of age, like any parent-child relationship.” Although there is the tanzil act allowing parents to give a third of their legacy to the makfoul child, the latter remains underprivileged compared to biological children of the couple. Another flaw to point out is that in the absence of parentage the law does not prohibit marriage between kafil and makfoul. Finally, the kafala remains a precarious status that may be questioned if one of the biological parents reappeared and demanded the child.
What about expatriate Moroccans and foreigners? France is blamed.
More and more Moroccans from the diaspora and foreigners (previously converted to Islam) are in the process of taking a child under the kafala. This international dimension obviously brings about legal problems. If in other European countries this procedure is transcribed as a simple or full adoption, France refuses it since the decision of the Supreme Court that is based on the 2001 law2 specifying that “the adoption of a foreign minor may not be granted if its personal law3 prohibits this institution, unless the minor was born and usually resides in France.” Paris recognizes the kafala as a legal care and parental delegation but without creating a parent-child relationship. The kafils are only considered as guardians.
According to the anthropologist Emilie Barraud, whose doctoral thesis focused on the kafala in the context of migration4, the decision of the French legal system is the result of an amalgam of various kafalas made due to several scandals of slavery that were found in the country: “We are facing discourses that amalgamate judicial and notary-certified kafala and who do not differentiate between all the intentions behind the motivations of taking a child under notary-certified kafala (confusing the act of taking an orphan in his interest to that of a young girl destined to be employed as a servant) and finally present abuse cases to legitimise judgments of criminal matters.”
When the kafil parents manage to bring the adopted child to France, they have to go through five years of a precarious administrative situation before the orphan’s naturalisation leads to the possibility of adoption, thus regularizing the child’s situation. However, those who reside in Morocco are unable to pass their French nationality to their makfoul and they therefore encounter daily difficulties. The Ombudsman and several left and right wing elected officials were concerned by this situation and tried to change the law but the former parliamentary majority rejected all proposed amendments, seeing the recognition of the kafala only from the perspective of Muslim immigration, considering it as a danger to the Republic.
The politicization of this matter during the last presidential term has left little hope for these families, grouped into two associations, the Paraenam and the Apaerk. However, the new political climate and the election of deputies for the French citizens overseas gives a glimpse of an improvement, especially regarding the abolition of the residence period in order to obtain citizenship. Nonetheless, the fight for a better harmonization of the law still needs to be carried out on both sides of the Mediterranean. Emilie Barraud we are still far from it: “Neither France nor Morocco will reform its laws.” In Morocco, the crucial issue of the makfouls’ non-inheritance is “a fundamental principle that will not change as long as society functions with the kinship system that it has established itself, a system based on marriage alliance and consanguinity confusing heredity and inheritance.”
However, she also believes that things can change like what happened in Algeria regarding the adoption of the decree authorizing the concordance of names between adoptive parents and the orphan. “In 1992, after the adoption of the decree that regulates the issue of nominal stigma, the number of kafalas has doubled. This evolution was the result of a compromise, of long debates between civil society, associations and doctors of Islamic law.” This proves that fatalism does not make sense anywhere.
Translated from French by Elizabeth Grech
1 After the approval of the kafala supervising judge, the procedures are not over. Several other different procedures are to be undertaken by parents to change the civil status (change of the child’s), send their name, sign the act of tanzil (to ensure a legacy of a third of their assets) and apply for a passport. The Osraty Association has published a guide for kafil parents (in French):
2 Article 370-3, paragraph 2 of the French Civil Code.
3 Meaning of the country where he comes from and the one of which he has the nationality.
4 Author of: Kafâla et migrations. L’adoption entre la France et le Maghreb, Sarrebruck, Editions Universitaires Européennes, 2010, 522 p.