Kafala Recognition in German Family Law: Legal Framework & Foster Care Rights

The Islamic view of adoption generally differs fundamentally from the procedures and practices in non-Muslim countries. Adoption as understood in western countries – as defined in German law, for example – is not recognised in Islam. Of course, there are different views and interpretations of the ban on adoption within the Islamic religion, but it can be said with certainty that at least the concept of adoption as understood in the West is not recognised and that Islam prohibits such ‘adoption’.

However, caring for a non-biological child is expressly permitted and even encouraged within Islamic cultures. This is referred to in Arabic as الكفالة (“Kafala”). “Kafala” refers to a type of guardianship and is literally translated as ‘guarantee’. The term is sometimes also translated as ‘sponsoring’, but this interpretation seems to be influenced by historical links to British colonial influences and does not do justice to the original meaning.

A distinction is generally made between two forms of kafala – kafala judiciaire and kafala adoulaire. Different regulations apply to guardianship depending on the region. Kafala judiciaire is pronounced by a court and is linked to a court decision. It transfers guardianship to a specific person who is responsible for the child’s welfare. In some countries, it can confer additional rights, for example with regard to inheritance issues or residence rights. Kafala adoulaire, on the other hand, is certified by a notary or religious authorities (adoul). It is less formal than judicial kafala, but is nevertheless legally binding. This form is often used in a family or religious context, especially when close relatives take care of the child.

The German Federal Government is fundamentally critical of the subsequently arranged adoption of a child who has been taken in abroad under a kafala arrangement. This is because kafala is not recognised as adoption in Germany and the legal requirements for subsequent adoption are extremely strict. In this context, reference should also be made to the response from German State Secretary Lutz Diwell dated 9 April 2009 (see p. 17).

The German government takes a restrictive stance towards international adoptions that are not accompanied by recognised adoption agencies. Since the Adoption Assistance Act came into force on 1 April 2021, such procedures have been prohibited in principle. Retrospective recognition or conversion of kafala into adoption is theoretically only possible in exceptional cases if the child’s welfare clearly speaks in favour of adoption and there are no other legal obstacles. In practice, however, adoption is much more complicated. The Federal Foreign Office is not aware of any Islamic country of origin having declared to a German mission abroad that it would agree to adoption under German law. In fact, most Islamic countries expect an explicit assurance that the child will not be adopted but will be cared for according to kafala rules in the case of international kafala.

In European, and therefore also German law, kafala raises a number of questions relating to family and residence law, as it differs fundamentally from the provisions of European family and adoption law. In Germany, kafala regularly leads to practical legal difficulties, particularly in the following areas:

• family reunification with kafala foster parents,
• transfer of custody,
• (co-)naturalisation of kafala children,
• international legal conflicts: application of foreign law,
• integration into the German social and education system.

According to the European Court of Justice (ECJ), Muslim guardianship, known as ‘kafala’ in Arabic, is not equivalent to adoption. Under Islamic law, kafala is roughly equivalent to a foster care relationship with guardianship transferred to the foster parents. A minor for whom an EU citizen has assumed guardianship under the Arab kafala system cannot be regarded as a ‘direct descendant’ of that EU citizen. However, the Member State in which the EU citizen resides must facilitate the child’s entry after assessing all the circumstances.

According to Article 20(3) of the UN Convention on the Rights of the Child (UNCRC), other forms of care include placement in a foster family, kafala under Islamic law, adoption or, if necessary, placement in a suitable childcare facility. When choosing between these solutions, due consideration must be given to the desired continuity in the child’s upbringing and the child’s ethnic, religious, cultural and linguistic background. According to Article 33 of the Hague Convention on the Protection of Children, this cross-border placement of the child with kafala foster parents living in Germany requires a recognition procedure.

In principle, it is therefore possible to bring kafala children to Germany and take them in here. However, this procedure is not legally equivalent to adoption, but rather to a foster care relationship with transfer of guardianship. Whether such a legal relationship can be assumed always depends on the specific situation and must be considered on a case-by-case basis.

As part of the recognition procedure, the competent courts and youth welfare offices examine whether the kafala established abroad is in the best interests of the child in accordance with Art. 3 (1) of the UN CRC. A transfer of the custody rights resulting from the kafala to guardianship or foster care under German law can be made upon application, but only by court decision in accordance with the provisions of international law (Sections 108, 109 German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction, FamFG) and the Hague Convention on the Protection of Children (Articles 23-28).

The case law of the German Federal Administrative Court (including the decision of BVerwG 1 C 16.09, judgment of 26 October 2011) has confirmed that kafala is not recognised as adoption in Germany, but must be assessed in accordance with the principles of Sections 1773 et seq. and 1809 et seq. of the German Civil Code (BGB), whereby the public policy reservation pursuant to Art. 6 of the Introductory Act to the Civil Code (EGBGB) must always be observed. The recognition procedure is usually very complex and lengthy. However, there are legal options for speeding up the process.

At Schlun & Elseven Rechtsanwälte, our lawyers have excellent expertise in German and international family law and many years of experience in dealing with the authorities involved. They will support you during this emotionally challenging time with the necessary empathy and commitment and ensure that the best possible outcome is achieved – for the benefit of your foster child and your family.

In German law, Islamic kafala raises a number of issues relating to family, residence and citizenship laws, as it differs fundamentally from the provisions of German family and adoption law. An individual case review, considering aspects of family law and immigration law, is usually necessary. The principle of the best interests of the child and the interest in family unity are always at the centre of the legal assessment.

Under German law (Section 1754 of the German Civil Code (BGB)), adoption creates a complete parent-child relationship. Kafala, on the other hand, does not sever ties with the family of origin, which poses a problem for German adoption law. A transfer of custody in the German sense only occurs if it is compatible with the fundamental principles of German law (in particular the welfare of the child) (Section 109 FamFG, Art. 6 EGBGB). A transfer of parental custody may be granted upon application, but often only by court decision.

One of the central questions is whether a child who is cared for under the kafala system is allowed to enter Germany for the purpose of family reunification (Sections 32, 36 of the Residence Act, AufenthG). As already mentioned, kafala does not establish legal parenthood within the meaning of German residence law. Therefore, there is no automatic right to reunification.

However, the following solutions are possible:

• Application for a humanitarian residence permit (Section 25 (5) or Section 22 AufenthG) or
• Acquisition of a residence permit within the framework of family protection (individual case review by the immigration authorities).

Children under kafala are not usually covered by the family unit as defined by German nationality law. Naturalisation or co-naturalisation of children under kafala is legally difficult and often depends on the actual living situation. Naturalisation is subject to the strict requirements of Sections 8, 10 and 14 of the German Nationality Act (StAG), whereby kafala children are not automatically included in their foster parents’ right to naturalisation.

In practice, there are considerable legal uncertainties, as the German legal system does not recognise kafala as an institution comparable to adoption. As a result, neither a parent-child relationship can be automatically established, nor can equality with biological or adopted children be granted in terms of residence or citizenship law. Authorities therefore carefully examine each individual case, considering the best interests of the child. However, an existing kafala does not give rise to a legal right to naturalisation or co-naturalisation.

In certain cases, reference is made to the national law of the child or the kafala parents (Sections 24, 109 FamFG; Art. 20 EGBGB), e.g. if a ruling has been made abroad. However, a foreign decision may not be recognised if it violates German ordre public (the fundamental values of German law). The public policy reservation (Art. 6 EGBGB) ensures that foreign legal norms are only applicable in Germany within the framework of kafala recognition if they are compatible with essential principles of German law, in particular the welfare of the child. In addition, the provisions of the Hague Convention on the Protection of Children (KSÜ, Art. 23-28) must be observed for the recognition of foreign custody decisions.