Kafalah

The new frontiers of placement: kafalah, European adoption and international placement.

The acceptance of minors coming from Islamic countries, for adoption in countries of the European Union, the regulation of international placement: those are the terms for Amici dei Bambini (AiBi) that could enlarge the horizon of the acceptance of abandoned minors and minors with family problems.

In the Muslim law kafalah it is the highest form of protection for abandoned infants: the legal institute of the legal adoption does not exist, or full adoption – which cuts the ties between the adopted minor and its family of origin - but a sort of "unlimited entrustment". Today kafalah presents serious difficulties of acknowledgment in some countries, among which Italy, just because it does not contemplate a legal adoption. Since 2002, after the entering in force of law 476/98 that ratifies the Hague Convention, this institute has often not obtained formal acknowledgment in our system. Ten thousands of institutionalised minors in Morocco and other Islamic countries cannot be fed with the hope to have an Italian family or a family from their country residing in Italy.

However a recent decree of the Constitutional Court (n. 347 29/07/2005) has given new small openings in the matter of adoption of foreign minors, recognizing the applicability of the institute of adoption in particular cases (art. 44 of law 184/83) also to foreign minors. Based on this statement of the Constitutional Court, therefore, art the 44 of law 184/8 could transform the institute of kafalah that, other then the adoption, not cuts ties between the minor and its family of origin but presupposes an in time unlimited entrustment to a new family. In other words the peculiarity of kafalah would be guaranteed and, at the same time, Islamic abandoned minors would be allowed to leave the institutions and to find a family disposed to receive them.

European adoption could represent a modern and innovative solution for the children of Europe: a new level of intervention to be realised between states of the European Union in order to allow the placement in families of abandoned children from Italy, France, Spain or Romania, who today find themselves in institutions and have only two alternatives: national adoption or international adoption. The entry of Romania and Bulgaria in Europe, countries that de facto have blocked international adoption, imposes the necessity to define adequate solutions for the insertion of these minors in families. This way the concept of subsidiarity of adoption could be widened. Placing itself, in fact, between the national and the international one, European adoption is necessary in order to resolve the problems of abandoned children in case it is impossible to find a national one. Only when one cannot recur to national adoption or to European adoption, one would refer to international adoption as configured nowadays. Another frontier of acceptance is the regulation of the international placement that implies the temporary acceptance of a minor in a foreign country. With international placement, the minor would have the possibility to find acceptance in a foreign country as opportunity to grow-up. To give an adequate answer to the real needs of the foreign minors, the plan of international placement could be conceived in three different ways. The first would be as support for foreign families in case of temporary difficulty in the relation with their children. The entry of the minor in a foreign foster family could hereby favour the recovery of the relation with the family of origin and the familiar surroundings. In a second perspective international placement could offer to the foreign minor opportunities, which it would not have in its country of origin. This is the case in which the minor would need medical treatment, or wishes to get work experience in a foreign country with the security of a family that can accommodate it and follow in its growing up. In a third hypothesis international placement would concern those adoptable minors who have serious difficulties being inserted in a family because of being already older, or with problematic behaviour or having serious health problems: in this case international placement would be the antechamber of a future adoption, an instrument through which future adoption parents could know the children and approach the adoption process.