Diffusion of Islamic Law in the UK: The Case of the ‘Special Guardianship’

Chapter 4
Diffusion of Islamic Law in the UK: The Case of the ‘Special Guardianship’

Rita Duca


The increase of migration fluxes has resulted in the consolidation of new ethnic minorities in Europe, where Western values and norms coexist, sometimes inconsistently, with the ones of minority communities, especially in the area of family law. For example, adoption is prohibited in most countries where the legal system is based on Islamic law. Those countries have other measures for protecting children, the best known being kafala. Kafala is generally defined as a voluntary commitment to take charge of the needs, upbringing and protection of a minor. As kafala does not create a legal parent–child relationship between the child who is taken into the charge of another, and the person holding the right to take care of him/her, it cannot be considered as adoption. In fact, kafala is not covered by the Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption.

This chapter examines how English immigration law treats the admission of Islamic children under kafala. It specifically examines the Adoption and Children Act of 2002 which has introduced the institution of ‘special guardianship’ into the English legal system, in order to meet the needs of those children for whom adoption is not appropriate and to permit to all Muslims domiciled in the UK to be able to take care of children. This development also modernises the law, since it reflects and safeguards religious and cultural diversity. In particular, the aim of this chapter is to highlight how diffusion1 within Western legal systems of legal models from outside the West arises from the movement of people. The example of the ‘special guardianship’ shows how Western legal systems have to deal with new institutions transplanted by people coming from foreign cultures; in other words, it is an example of legal diffusion.

Immigration and Legal Transplant

The notion of ‘legal transplants’,2 formulated by Alan Watson, refers to: ‘the phenomenon of circulation of legal models whereby a solution or a rule or a body of more solutions and rules that form a part of a definite model move themselves from a system to another’.3 For Watson ‘transplanting is the most fertile source of development’ and ‘the majority of changes is the result of loans obtained by different juridical systems’.4 According to this theory a legal model can circulate thanks to its own prestige or by imposition,5 through the activity created by the legislator, by the jurisprudence,6 through legal writing or doctrine, or resulting from a combination of these last three activities.7

The notion of ‘legal transplants’ could be contextualised today within the sphere of multicultural societies, if it were ascribed a wider meaning.8 In fact, the process of globalisation has aided the progressive increase in the last years of migration fluxes, and the ease of mobility on a global scale has certainly facilitated the circulation of legal systems. In Europe in particular, the massive arrival of immigrants who are workers, but also bearers of values, traditions and new rules has meant that Western legal models have had to deal with new institutions ‘transplanted by a people from foreign culture’.9 According to Alan Watson’s notion, the legal transplant represents an advantage for those systems that ‘import’ a model from another system – and therefore there is a new and useful legal solution, however an alternative notion of legal transplant may be that the transfer of legal models occurs simply as an empirical fact with which the receiving countries have to deal, having no other choice.

According to Watson’s notion, the success of a legal transplant will depend on the ability of the host national legal order to adapt to the new decontextualised model. It is no coincidence that Watson uses the term ‘transplant’; this concept inevitably reminds us of human organ transplants, where success or rejection depends on the body’s ability to adapt to a new element. The success of a legal transplant of the new model imported by ethnic groups will depend not only on the way in which the host countries’ legal systems will be able to deal with them, but also on the compatibility of these models with the values and principles that characterise the host countries’ legal systems. Immigrants who come to Europe after an initial period of isolation looking for a job, tend to join their own community, so that immigration ‘from individual becomes familiar and communitarian’.10 This stabilisation of immigrants, with the consequent formation of families and communities, fosters the tendency to ‘reproduce in a foreign country the institutions of the communities of origin and to apply traditional laws and practices’.11 So, the regulatory framework which governs the lives of non-European citizens who live in Europe is established on a double track: one consisting of the rules and laws of the host country and the other consisting of rules and laws of the country of origin; there is therefore a dichotomy between ‘official law’ and ‘unofficial law’.12 This way, the behaviour of many people is shaped by a ‘model after religious or ethnic identity [and they] follow laws that don’t respect the national borders and sometimes they are discordant or in open conflict with the host Country’s legal system’.13 For this reason immigration inevitably causes a change in the legal environment of the host country, since immigrants, even though they are ready for dialogue and for the acceptance of the host country’s law, do not renounce their expression of cultural life, of which law is a part, especially those aspects which they reproduce in their familial setting.

Family Law and Kafala

‘Family is a fundamental social group, it is in every historically recognised society, which structure and functions change in the course of time and from a society to another’,14 and this is why family law is a field which is most vulnerable to cultural–ethnic effects, for ‘[…] both anthropo–sociological and legal reasons’.15 Indeed, ‘family’ is a polysemous16 concept, that is, it combines different meanings depending on the actors who turn to it and on the contexts in which it is used, and for this reason even the experts in civil law do not refer to ‘family’ but to ‘families’.17 In a multicultural society especially, a uniform social model of family does not exist, because when culture, religion and traditions change, ‘families’ will change as well, followed by, as a consequence, familiar relationships between man–woman and parents–children; the existential (e.g., educational, psychological, religion, medical) choices related to a minor: marriage; filiation; the conditions of dissolution of family unit, and so on.

This kind of social transformation requires ‘a rethink of the entire Family law’,18 particularly in Western legal systems. These systems have to take into account not only new familial structures composed by immigrants, but also have to give attention to the identification and custody petitions required by these new families. It is in the context of this new background that the kafala will be analysed, a long-term foster care used in Islamic countries but unknown to Western legal systems.

In almost every Islamic country19 the adoption of children is prohibited by a law that comes directly from the Koran.20 The reason for this prohibition is due to the Islamic idea of family as an institution of holy origins, and the filial bonds are expressions of Allah’s will.21 For this reason, man cannot, through artificial juridical bonds, decide on the suspension or the foundation of new filial bounds beyond the biological generation within marriage.22

From this we can deduce that, since adoption is an institute with the aim of making a filial relationship created independently from natural procreation, according to Islamic culture it must be prohibited. The prohibition of adoption established by Allah’s law, which in Islamic law systems has the same relevance as a source of right,23 is also confirmed in the national legislation of different Islamic countries.24

The absence of institutions which may be used to create an ‘unnatural’ filial system does not mean, however, that minor orphans or abandoned children are left to their own destiny. The duty of brotherhood and solidarity towards abandoned minors, also exhorted by the Koran, is performed by every good Muslim through ‘kafala’,25 which is the only institute recognised by the Islamic system aimed at the guardianship and protection of abandoned or orphaned childhood.

From these considerations it emerges that this institute is strongly linked to the traditional social values that define Islamic society and to its religious values. Although the regulation of this institute has specific characteristics in every single Islamic system, it is possible to identify the essential and common features of this particular form of protection for abandoned children.

Through kafala, a Muslim married couple (or a single adult) obtains the custody of a child who was not given to the custody of his/her biological relatives.26 Specifically, kafil (a couple or a single adult),27 commits him/herself to provide for the needs of a makful (abandoned child) through a contract signed before a judge or a notary, in a definitive way28 until the child reaches the age of majority,29 and undertakes to care for the child the same way as a ‘good father’ would do.30 Although kafil has parental responsibility over the child, there is no kind of filiation with the minor:31 makful does not take his/her kafil’s surname,32 does not obtain any transmissible rights or expectancy,33 nor does he/she interrupt the relationship with his/her family of origin.

From the procedural point of view it is firstly necessary to judge correctly the living conditions of the makful and the suitability of the kafil. Islamic law usually implies that the child has been previously declared ‘abandoned’ by the competent juvenile court, and if the biological parents are known, they are summoned to give their approval to kafala.34 Moreover, in different Islamic countries,35 it is necessary to listen to the opinion of the makful and to obtain his/her approval to kafala. Islamic law also requires some conditions that need to be satisfied to take care of the abandoned minor. The kafil must: be of age, believe in the Islamic religion,36 be able to guarantee adequate care and good nurturing to the child, and finally be able to fulfill the parental role with dignity37 and meet the responsibilities deriving from kafala. The competent authorities38 have to verify the compatibility between the two subjects in addition to verifying the makful’s condition of abandonment and the kafil’s suitability. Once kafala is allowed, the public competent authority has the right and the duty of oversight and checks the evolution of the child’s integration in the extended family and in the event of the kafil’s transfer of residence abroad it must authorise the makful’s transfer.

As one can deduce from the above, kafala

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