Top EU court: Islamic guardianship system grants child limited rights

Luxembourg - The Islamic kafala system, under which adults can take in children who are not their own, only confers limited rights on the child, the European Union's top court ruled Tuesday.

The case relates to an Algerian child who was abandoned after birth and was taken in by a French couple. The Algerian authorities granted them legal custody of the child, but she was later barred from entering Britain, where the couple live.
The decision was contested before Britain's Supreme Court, which turned to the European Court of Justice (ECJ) for help in interpreting EU law.
The court found that a child that placed under the legal guardianship of an EU citizen cannot be classed as a "direct descendant" and therefore does not enjoy a virtually automatic right of entry and residence in member states.
The Luxembourg-based judges noted that kafala is a form of temporary guardianship and is revocable. It does not equate to adoption, which is forbidden under Algerian law, they found.
Nonetheless, the court argued that in such situations, member states should treat the child as an "other family member" and facilitate its entry and residence, with a view to protecting family life and defending the child's best interests.
Any such decision must be based on a "balanced and reasonable assessment" of the circumstances - including the risk that the child could face abuse, exploitation or trafficking, the court found.
It noted that the kafala system is based on "less extensive" assessments than the procedures to adopt or care for a child in EU member states.
The case now reverts to the British Supreme Court.


Tuesday, March 26th 2019

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