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Monegasque case law recently found that, where a child with Moroccan nationality had been taken in under kafala by a Franco-Monegasque national, and subsequently acquired French nationality, the ban on adoption resulting from the child’s personal status under Moroccan law was no longer applicable, and the child was therefore eligible for adoption.
The prohibition of adoption in countries which apply Islamic law is effective solely in cases where the minors concerned hold only their original nationality and no other.
In this case, since the Moroccan child had, in addition to their original nationality, acquired the nationality of a country which recognises adoption, namely France, they could legally be adopted under Monegasque law, in accordance with the Code of Private International Law.
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Kafala can be defined as a form of child protection, allowing a child to be educated and provided for materially until he or she reaches the age of majority.
It may be thought of as a sort of delegation of parental authority or guardianship, but under no circumstances as adoption.
This is because kafala creates no filial relationship of parentage.
Adoption is not permitted in countries which apply Islamic law, such as Morocco and Algeria.
For Monaco (and also for France), this means that a child with, for example, Moroccan or Algerian nationality, can under no circumstances be formally adopted if their national law prohibits adoption.
The Judge will be careful to observe the ban on adoption in these countries, and may not in any way transform a kafala arrangement into an adoptive one, even taking into consideration the child’s interests.
However, if a child subject to a kafala arrangement acquires the nationality of another country whose national law does permit adoption, the child may be adopted.
The Monegasque court recently handed down such a ruling in the case of a Moroccan child who acquired French nationality, finding that the child could legally be adopted by a person with Franco-Monegasque nationality.
