Sunday, November 11, 2012

Kafala Protest Gains Strength

Our Sunday opinion feature takes a look at the unease over moves to restrict adoption in Morocco, at a time when the situation of orphaned or abandoned children is critical.  A recent circular from the Ministry of Justice dismissing the right of non-resident foreigners to adopt has led to grave concerns about the future welfare of Moroccan orphans. The latest protests come from a group of six children's welfare associations. Their concerns join those of couples currently in the process of adopting.

Boys in a Moroccan orphanage

Unfortunately Morocco has not kept pace with international standards when it comes to adoption and still adheres to what many see as an outdated system known as kafala. Islamic views on adoption are generally distinct from practices and customs of adoption in other non-Muslim parts of the world like Western or East Asian societies. Raising a child who is not one's genetic child is allowed and, in the case of an orphan, even encouraged. But, according to the Islamic view, the child does not become a "true" child of the adoptive parents. For example, the child is named after the biological, not adoptive, father. More conservative Muslims go so far as to claim that adoption is forbidden by Islamic law but that it is permissible to take care of the child in a fostering arrangement. In Arabic this is known as kafala.

The intent of kafala is to ensure that a child is raised as a Muslim. But, because monitoring kafala can not be assured abroad, the Ministry fears that the adopted child will not be educated in the teachings of Islam.

On September 19, a circular (No.40 S/2) issued by the Ministry of Justice and Freedoms was a bombshell, saying that after investigation kafala should be refused "to foreigners who are not ordinarily resident in Morocco." And therefore it "is granted only to applicants who reside permanently in the country."

The argument developed by the Ministry is based on the fact that judge responsible for granting or denying kafala has an investigative role to determine "moral fitness and social ability to raise an abandoned child in the the precepts of Islam". In the case of adoptive parents living outside Morocco this is impossible. Article 9 of the Law on kafala requires the supervising judge  to ensure that all the terms of any agreement continue to be met. Failure to do so gives the judge power to revoke the kafala. In practice this is never done, but is all the justification needed to deny kafala to foreign couples.  What all this ignores is the welfare of the child.

The six Moroccan associations fighting for the right of abandoned children to have parents were alarmed by the September 19th circular and took the case to the Courts of Appeal and Courts of First Instance.

The decision to exclude foreigners to kafala, even if they are Muslims (who do not live Morocco) has caused great  concern and confusion within the associations working to better the lives of abandoned or orphaned children.  The associations in the frontline of this fight for the children are Village Children, The Babies Association of Morocco, The Rita Foundation, The Zniber Association, Dar Al Wafa Atfal, The Osraty Association and the Association of Children's Friends. These associations are gaining strong support for a public a petition against the Ministry's decision. They have also questioned what, if any, alternative measures the Ministry will come up with "to protect the best interests of the child as defined by national and international law."

As it currently stands, the Ministry circular has effectively deprived thousands of children the opportunity of adoption and a better life. The children will continue to live in orphanages with often substandard conditions and the risk of institutionalisation. According to the welfare associations the damage to the children is significant and, " 80% of children who remain in orphanages become offenders and 10% commit suicide." The associations go on to say, "This circular will aggravate the situation for the centres who are even now unable to receive more children and child trafficking networks of all kinds will not miss this opportunity."

It is difficult to understand how the Ministry intends to rectify the situation that will develop from the kafala ban.  According to estimates, 24 babies are abandoned every day in Morocco. With an annual rate of 6000 abandoned children, the capacity of the orphanages has been far exceeded. The numbers of Moroccan families and foreigners resident in the country cannot absorb the number of children. According to Asmaa Benslimane, founding president of the association Babies Morocco, the rate  "national kafala is practically equal to the international kafala (50%)."

The effects of the ban, according to the authors of the petition, will be "dramatic" as the numbers soar of infants and children without parents who are unable to be adopted. The statistics confirm their case.  Public awareness of abandoned children has gained momentum in recent years and rather than banning adoptions, Morocco needs to encourage suitable applicants, whether they live in Morocco or abroad. According to the national survey conducted in 2010 by INSAF, 27, 200 single mothers gave birth in the previous year out of wedlock. According to the same study, 153 babies are born out of wedlock every day, and 24 of them are abandoned.

An earlier study, conducted in 2009 by the Moroccan League for Child Welfare and UNICEF , revealed that the number of abandoned children was 4,554, (in 2008), representing 1.3% of total births in that year. These children, some of whom are lucky enough to be accommodated in nursing homes and other care centers for children, "have the right to parental affection," said the Child Welfare League.

A major concern for the associations is the question: why does this circular prohibit kalfala to couples not resident in Morocco, knowing that 50% of adopting parents are foreigners, and that the ministry was aware of this?

The answer to this first question comes from the circular itself: "Monitoring of judicial practice indicates that these provisions (those provided by the Kafala Act) are not executed efficiently and correctly, to reflect the legislator's intentions which are to find the appropriate framework for the protection of the abandoned child, and that education takes place in a climate that prepares a child's future, so that it plays its role in society."

Latifa Taoufik, a judge and assistant general secretary in the Ministry of Justice, is reassuring. She  said that the circular came "in response to reports that the Department has received, and that state that there are adoptive parents who exploit and abuse children adopted abroad without any control." Since the procedure is applied incorrectly, Taoufik says, the department "wanted to tighten up the procedure, until bilateral agreements are signed on the issue with countries where kafala is applied."

And what of the foreign applicants who have already started the process?  Their fate is still uncertain. For example, the Lalla Hasna orphanage in Casablanca, opened in 1956 making it one of the oldest in Morocco, has are no fewer than 22 pending applications from foreigners not resident in Morocco.
"The couples are varied, with mixed marriages, foreigners converted to Islam and Muslims by birth. They come from France, Canada, Dubai, United States," said Samira Kaouachi, director of the orphanage. She added that these foreign Muslims often choose children with physical or mental conditions, that Moroccans would never accept.

She concludes that "It is not normal that the 22 pending cases are not resolved, the future parents are determined and they feel a sense of frustration at not being able to complete their process. Let's get these files first." She says it is unacceptable that these children are "stored" in an institution and face an uncertain future.

Another problem complicating things in the Casablanca children's home is that from late 2011 to October 2012, the orphanage has recorded four returns of adopted children, and two more are in progress. "In all cases, the adoptive parents are Muslim Moroccans living in Morocco, who have decided these children are defective products, simply because they are nervous, restless or whatever. Is this Islam?" asks the forthright Ms Kaouachi.

From 1990 to October 2009, the Lalla Hasna orphanage welcomed 2,447 children and 1,389 of these benefited from kafala adoptions. Between 2010 and October 2012, it hosted 300 children. 244 of these were adopted - 50 to non-resident foreigners in Morocco. Currently, another 22 are awaiting adoption by foreigners. Of these, 18 suffer from a physical or mental disability. Boys are in the overwhelming majority, because the orphanage receives almost no girls. "Girls do not come here unless they are sick or disabled," said Samira Kaouachi, psychologist and director of the orphanage. This is explained by the fact that, "mothers rarely leave the girls, they are more docile than boys and their education is relatively easier. We receive only girls whose mothers are in prison, needing psychiatric treatment or girls with disabilities".

The orphanage receives abandoned children whose parents are unknown, and advises couples wishing to adopt a child. "Even if (the adoptive parents) they have good conditions, they feel the lack of a child. The balance, training and affection are only possible in a home between loving parents, even if they are adopted. 70% of these children are cared for every year through kafala, and we would have liked it to be more. We would like our orphanage to be seen as reception center, " laments Samira Kaouachi.

The Hague Convention

The best solution to Morocco's adoption problems would be to sign the the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (or Hague Adoption Convention). However, the problem arises that the convention and Islamic law have fundamental conflicts that need to be overcome.

It is an international convention dealing with international adoption, child laundering, and child trafficking. It was concluded on 29 May 1993 and entered into force on 1 May 1995.

Recognising some of the difficulties and challenges associated with international adoption, and in an effort to protect those involved from the corruption and exploitation which sometimes accompanies it, the Hague Conference on Private International Law developed the Convention.

The main objectives of the Convention are:

To establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;

To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
to secure the recognition in Contracting States of adoptions made in accordance with the Convention.

As of April 2012, this Convention has been ratified by 89 countries. Haiti, Nepal and The Russian Federation are signatories, but have not ratified.

The convention states:
"Intercountry adoptions shall be made in the best interests of the child and with respect for his or her fundamental rights. "



marrakechemma said...

Thank you for this article. I have now heard that it is ok for Foreign Residents to do Kafala in Morocco. Do you know if this is the case?

Sandy McCutcheon said...

It is my understanding that this is correct.

flutterby said...

Do you write these posts yourself? If so, how do you get in contact with these people?

The View from Fez said...

We have a number of contributors in both editorial, features and photography. Our information comes from a variety of sources including, open source material, MAP (news agency), AFP and Morocco World News. We also get material contributed by readers.

Anonymous said...

Merci for the information. I hope these children can be helped. I pray for those who work with the associations who care for them. Shukran

Anonymous said...

I would like to adopt children! I cant have my own and my morroccan husband And I want a family.

We live in Fez.