What is Kefalah? – A legal primer on Islamic adoption

Kefalah is the Islamic equivalent of legal adoption as defined by the Adoption and Children Act 2002 (ACA 2002). Here, we explore the differences between the two.

There is great virtue for the Muslim who undertakes Kefalah as not only will he/she be helping another person which is of great merit in itself, but they will be helping one of the most vulnerable people in society, i.e. an orphan. The Prophet of Islam, Muhammad (PBUH), said:

“I and the guardian of the orphan will be in Paradise like this” and the Prophet joined his index finger with his middle finger.¹

The Islamic position on the status of the adopted child is markedly different to the legal position defined in the ACA 2002. By virtue of the Act, the making of an adoption order operates to extinguish the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order². Furthermore, an adopted person is to be treated in law as if born as the child of the adopters or adopter³. The overall effect of this combined with s46 ACA 2002 is that once an adoption order is made, the adoptive parents are given parental responsibility for the child while the order extinguishes the parental responsibility of any other person. The child is also treated in law as if born of the adoptive parents and of no other person.

This is in stark contrast to the Islamic position. Here, the child is not deemed a relative of the carers, rather the child is simply under their care. The reason for this goes to the heart of the difference between Kefalah and legal adoption which is that the child must retain his name and lineage despite being cared for by new carers. It is stated in the Holy Qur’an:

“…nor has He made your adopted sons your sons. That is but a saying of your mouths. But Allah speaks the truth, and He alone guides to the way. Call them by (the names of) their fathers: that is more just in the sight of Allah.”⁴

It is recorded that this verse was revealed to Prophet Muhammad in respect of a child whom he had adopted before the advent of Islam. The name of the child was Zaid ibn Haritha (‘ibn Haritha’ literally means ‘son of Haritha’) and after adoption he was referred to as Zaid ibn Muhammad. However, upon revelation of this verse, the Prophet reverted to calling him by his true lineage, Zaid ibn Haritha.

Clearly the Islamic position places great sanctity on the preservation of one’s true lineage as loss of lineage means that there would be doubt regarding the child’s ancestry and consequently his or her identity.

In respect of property, the child cannot inherit anything from the adoptive parents or their relatives. The adoptive parents can, however, designate as much as one third of their estate to the child. If more than one third is given, the child can keep it subject to the rightful inheritors who must be of sane mind and adult giving their consent. However, this can only be considered after the death of the adoptive parent.

As the child is not deemed a relative of the adoptive parents, neither the new caretakers nor any of their relatives are deemed unmarriageable. Therefore, upon becoming an adult, he or she may marry any of them should they so wish. Though permissible, this is not a common occurrence.

There is, however, one instance that would render the child akin to the adoptive parents’ real child in respect of marriage (but not inheritance). This is when the adoptive mother breastfeeds the child within the first 24 lunar months of the child’s life and the baby ingests any amount of milk. This would render both adoptive parents unmarriageable and by extension, their biological children as they will now be classed as siblings.

SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9

In this case, the Supreme Court heard the appeal of SM, a seven-year-old Algerian national who was adopted by French nationals (of Algerian origin) in Algeria under the Kefalah system of Islamic adoption⁵.

In January 2012, having been adopted under the Algerian laws relating to Kefalah, SM applied for entry clearance to the UK under the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regulations’). She claimed to be either the ‘family member’⁶ or the ‘extended family member’⁷ of an EEA national. Her adopted father has permanent residence in the UK.

After the application being refused by the ECO and the First-Tier Tribunal, the Upper Tribunal allowed her appeal on the sole basis that she fell within the meaning of ‘extended family member’ under the 2006 Regulations.

The Court of Appeal allowed the ECO’s appeal against that decision on the basis that SM had not been adopted in a manner recognised by UK law. They focused on the issue not of whether SM fell within the definition of a ‘family member’ or ‘extended family member’ under the 2006 Regulations, but whether she was a ‘direct descendant’ within the definition of article 2.2 (c) of the Citizens Directive or ‘any other family member...who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence’ under article 3.2 (a) of the Citizens Directive.

They found that she did not fall within either definition.

The matter found its way to the Supreme Court which found in SM’s favour both in respect of the substantive appeal and the issue of jurisdiction.

The court concluded that SM would fall within article 3.2 (a) of the Citizens Directive, if she does not fall within article 2.2 (c) and that the 2006 Regulations do not appear to properly transpose that directive. The court gave a preliminary indication that SM also seemed to fall within article 2.2 (c), noting that a failure to recognise Kefalah children as direct descendants may discriminate against those who are unable for religious or cultural reasons to accept the concept of adoption as understood in the UK. It was unable, however, to say that the position on this latter issue was acte clair. Accordingly, the court referred three questions on this issue to the CJEU for a preliminary ruling and we await the court’s decision.

Whilst every case turns on its own facts, whether we as lawyers are dealing with Kefalah or legal adoption in the western sense, these cases have at their heart the desire to safeguard the welfare of children. It is difficult to see why recognising Kefalah as a distinct but legitimate system of adoption would fall outside of that guiding principle.

¹1 Sahih al-Bukhari
² ACA 2002 s 46 (2) (a)
³ ACA 2002 s 67 (1)
⁴ Qur’an (33:4-5)
⁵ Family Code No. 84-11 of 09/06/84 modified on 27/02/05 and Civil and Administrative Procedure Code of 2009
⁶ regulation 12(1) of the 2006 Regulations
⁷ regulation 12(2) of the 2006 Regulations