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Kafala and adoption in light of article 8 ECHR – Chbihi Louboudi and others v. Belgium

In Chbihi Louboudi and others v. Belgium, the European Court of Human Rights has dealt with the recognition of a ‘kafala’, a traditional Islamic form of adoption, in light of article 8 ECHR.  It has held that the right to respect for family life does not require signatory states to grant an adoption if a child has been placed in the custody of other persons by a ‘kafala’.

Facts:

Three applicants had submitted applications to the European Court of Human Rights. One of them was a girl from Morocco, the others were her Uncle and his spouse. The girl’s parents had agreed with the second and the third applicant that they would take care of the girl and raise her like their own child in Belgium. The agreement had been drawn up in form a ‘kafala’, a traditional form of adoption under Islamic law.

The first applicant had traveled to Belgium and had started living with the second and the third applicant. The second and the third applicant sought to adopt her; however, their request was rejected in two sets of proceedings by final judgments.

The third applicant only had a temporary permit to stay in Belgium, which was extended on a regular basis. For fear not be able to return to Belgium, she had not participated in two school trip abroad; she had also suffered from anxiety on account of her precarious situation and had felt embarrassed towards her classmates and friends.

Law:

The applicants claimed that by refusing to grant the adoption Belgium had violated its violations under the ‘right to respect for family life’ limb of article 8 ECHR. In addition to that, the third applicant – the girl – submitted that Belgium’s failing to provide her a permanent permit to stay constituted a violation of her right to private life under article 8 ECHR.

The Court stated that the case fell within the scope of article 8 ECHR. It reiterated its long standing jurisprudence to the effect that family life did not require the existence of biological parent-child relationships. Whether persons entertained family life had to be assessed on the basis of emotional and social ties between them. Belgium had contended that the situation of the applicants had to be treated differently, because the third applicant still maintained contact and close relationships with her biological parents. The Court rejected this argument.

It turned to the question whether Belgium had been under a positive obligation stemming from article 8 ECHR to grant the desired adoption. The Court pointed out that a ‘kafala’ was not recognized by Moroccan law; it also stated that the refusal of the adoption had not prevented the applicants from maintaining their family life, so that it was hard to see why it would constitute a violation of the right to family life. Therefore, the European Court of Human Rights found that there had been no violation of article 8 ECHR in its ‘family life’ limb.

With regard to the complaint that the failure to grant her a permanent permit to stay violated the third applicant in her right to private life, the Court stated that it could see that the situation in which the applicant found herself was distressful. However, it pointed to its long-standing jurisdiction that article 8 ECHR did not confer a right to stay in a certain country or to obtain a permission to stay in a country of one’s choosing. For this reason, the Court held that there had been no violation of the right to private life either.

 

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