Family reunification: the case of the Muslim migrant children in Europe

Adopting a child is not a legal concept recognized in Islamic law, which, while giving great importance to orphans and children’s rights, has introduced the legal institution of the Kafala. This institution can be defined as a commitment by the kafil to ensure maintenance, education and protection of a minor makfoul until his legal majority, in the same way as would a father to his son, but without creating any family relationship. For these reasons the Kafala cannot be compared to an international adoption, which, contrariwise, entails the creation of a parent-child relationship. On one side the Kafala is a legal concept recognized by International Law, in particular by the United Nations Convention of 20 November 1989 on the Rights of the Child, which recognizes the Muslim institution of the Kafala in the article 20 as a means of protection of the children. On the other hand, the Kafala is excluded by the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of Inter-country Adoption. The aim of this paper is to understand how, in a society increasingly multicultural, the Kafala could be reconciled in Europe, in particular analyzing the EU directive 2003/86/EC of 22 September 2003 on the right to family reunification, which ignored this Muslim institution. In the second part, the paper will analyze the most important judgments in the Italian, French and English legal systems in order to highlight how in these three European countries the solutions adopted in relation to the Kafala have been completely different.