A decision by French authorities banning the adoption of an Algerian baby under the Islamic ‘Kafala’ guardianship system did not breach human rights laws, judges have declared.
In today’s Chamber judgment in the case of Harroudj v. France (application no. 43631/09), which is not final, the European Court of Human Rights held, unanimously, that there had been:
no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The case concerned the refusal of permission for a French national to adopt an Algerian baby girl already in her care under the Islamic-law form of guardianship called ‘kafala.’
The Court found that a fair balance had been struck between the public interest and that of the applicant, the authorities having sought, with due regard for cultural pluralism, to encourage the integration of kafala children without immediately severing the ties with the laws of their country of origin.
The applicant, Katya Harroudj, is a French national who was born in 1962 and lives in Villeurbanne (France). In 2004 an Algerian court granted her the right to take into her legal care (kafala) a child born in Algeria of unknown parents on 3 November 2003 and abandoned at birth. Katya Harroudj was granted legal authorisation by the Algerian authorities to change the child’s name to Hind Harroudj. She brought her to France on 1 February 2004.
In France the applicant applied to adopt the child, but her application was rejected on 21 March 2007. The Lyons tribunal de grande instance noted that kafala gave the applicant parental authority, enabling her to take all decisions in the child’s interest, and gave the child the protection to which all children are entitled under the international treaties. The court also pointed out that under the French Civil Code a child could not be adopted if the law of his or her country – Islamic law in this case – prohibited adoption, which it did in the case of Hind Harroudj, as Algerian family law did not authorise adoption.
In Islamic law adoption, which creates family bonds comparable to those created by biological filiation, is prohibited. Instead, Islamic law provides for a form of guardianship called “kafala”. In Muslim States, with the exception of Turkey, Indonesia and Tunisia, kafala is defined as a voluntary undertaking to provide for a child and take care of his or her welfare and education.
In French law, kafala is considered as a form of guardianship if the child is an orphan or has been abandoned and the parents are unknown, or as a delegation of parental authority. Kafala creates no filial bonds, no right to inherit and no right for the child to acquire the nationality of the guardian, and in the event of the latter’s death before the child comes of age, the child becomes a ward of his or her State of origin.
The French Civil Code, however, authorises the adoption of a minor whose personal status is governed by Islamic law “if the minor was born and habitually resides in France”. Also, a child who cannot be adopted because of his or her personal status under Islamic law has the right, before coming of age, to apply for French citizenship if they have lived in France for at least five years, in the care of a French national.
The applicant argued in her subsequent appeal that it was in the child’s interest for a filial bond to be established between them, and that denying her the right to adopt established a difference of treatment based on the child’s country of origin, as children born in countries which did not prohibit adoption could be adopted in France. That appeal was rejected on 25 February 2009. The Court of Cassation noted that cooperation agreements on international adoption3 applied only to adoptable children, and kafala was explicitly acknowledged by the New York Convention of 20 November 1989 on the Rights of the Child as protecting the child’s best interests in the same way as adoption.
Decision of the Court
The Government did not dispute the existence of a family life between Mrs Harroudj and Hind, but they did deny that the refusal to let the applicant adopt amounted to an “interference” with the applicant’s family life. The Court shared that view, noting that Mrs Harroudj was not complaining about a major obstacle to her family life, but simply wanting to establish a filial bond which the Civil Code denied her because adoption was prohibited in the child’s country of origin.
The Court went on to examine whether France was under any positive obligation regarding respect for the applicant’s family life. The Court considered, first of all, that the discretion (margin of appreciation) open to the French State here was wide, in so far as there was no consensus on this question among the Council of Europe’s member States. Although none of the States considered kafala equal to adoption, approaches to whether or not the law of the child’s country of origin constituted an obstacle to adoption varied to different degrees.
The Court then observed that the refusal to let the applicant adopt was based on the French Civil Code, but also, to a large extent, on compliance with international treaties, particularly the New York Convention of 20 November 1989 on the Rights of the Child, which explicitly referred to the Islamic kafala as “alternative care”, on a par with adoption. The Court considered that the fact that kafala was acknowledged in international law was a decisive factor when assessing how the States accommodated it in their domestic law and dealt with any conflicts that arose.
The Court also noted that kafala was fully accepted in French law, and in Mrs Harroudj’s case had produced effects comparable to guardianship, so that she was able to take all decisions in the child’s interest. It was also possible for her to include the child in her will and choose a legal guardian to look after her in the event of her demise.
Lastly, under the French Civil Code, the child had the possibility, after a short time, to acquire French nationality and thereby become adoptable, as she had been taken into the care of a French national in France.
Thus, by providing for an exception for children born and residing in France, and giving children taken into care in France by a French national rapid access to French nationality, the authorities had made an effort to encourage the integration of such children without immediately severing the ties with the laws of their country of origin, thereby respecting cultural pluralism. A fair balance had therefore been struck between the public interest and that of the applicant, without interfering with her right to respect for her private and family life.
The Court accordingly held that there had been no violation of Article 8. In the light of that finding, the Court considered that no separate issue arose under Article 14.