Kafala and Adoption: What Legal Support Is Available in France?

It is not uncommon for Muslim families residing in France to wish to welcome a child into their home, only to face complex legal challenges. On one hand, there is kafala – a form of legal guardianship recognised in Muslim countries – and on the other, simple or full adoption, which establishes a legal parent-child relationship. These concepts can be confusing, but they are in fact two distinct legal institutions governed by different legal principles.

1.  Kafala: An Alternative to Adoption in Muslim Countries

Kafala (or legal guardianship) is a child protection mechanism recognised in countries that apply Islamic law. It allows a third party (the kafil) to assume responsibility for a child (the makfoul) without establishing a parental link. Kafala serves as an alternative in countries where adoption is forbidden. This prohibition is mentioned in the Qur'an, Surah 33, verse 4: "God has not made your adopted sons your [true] sons...". It is also found in various national legislations in the Maghreb region.

In Algeria, "Adoption (tabanni) is forbidden by Sharia and by law" (Article 46 of the Algerian Family Code).

In Morocco, "Adoption (attabanni) is legally void and does not result in any of the effects of legitimate parental filiation" (Article 149 of the Moroccan Family Code – Moudawana).

Tunisia, unlike Algeria and Morocco, recognises adoption under Article 8 of its 1958 Family Code. Article 9 outlines the criteria: "The adopter must be a legally competent adult of either sex, married, of good character, in good physical and mental health, and able to meet the needs of the adoptee".

Kafala allows the kafil, or legal guardian, to take responsibility for the child’s care and protection, but with limited rights.

In Tunisian law, kafala was established by the 1958 Family Code: "Unofficial guardianship (kafala) is the act by which a legally competent adult or a welfare organisation takes responsibility for a minor child, providing care and support" (Article 3 of the Family Code).

Algerian law defines kafala as: "The voluntary commitment to take on the care, education, and protection of a minor child, as a father would for his son. This is established by legal deed" (Article 116, 1984 Family Code).

Under Moroccan law, kafala is defined as: "The commitment to care for, educate, and support a child as a father would his own. Kafala does not create a right to filiation or inheritance" (Article 2, Law No. 15-01, 15 June 2002).

Even when legally recognised by a judge in the country of origin, kafala does not carry the same legal consequences in France as adoption, especially regarding parentage and nationality.

2. International Adoption in France: A Complex but Possible Process

In French law, the adoption of a foreign child is strictly regulated.
Article 370-3, paragraph 2 of the Civil Code provides:
"[…] The adoption of a foreign minor cannot be granted if the minor’s national law prohibits adoption, unless the child was born and habitually resides in France […]".

In a ruling on 10 October 2006, the French Court of Cassation refused to consider kafala as equivalent to any form of adoption, even simple adoption.

In international adoption matters, French law makes a clear distinction between children from legal systems that allow adoption and those from systems that prohibit it – as is the case in many countries governed by Islamic law.

The core principle established by Article 370-3 is unequivocal. However, there is an important exception:
If a child initially placed under kafala later acquires French nationality by declaration, their personal national law no longer applies, and they can become eligible for adoption under French law.

This particular legal pathway is often overlooked but is essential in securing the child’s legal status.

French legislation provides for two types of adoption with different legal effects:

• Simple adoption, which maintains certain ties with the biological family, may be suitable when one or both biological parents are known.

• Full (plenary) adoption, which creates an exclusive and irrevocable legal parent-child relationship, is reserved for orphans or children legally declared abandoned.

Conclusion

This legal framework presents significant practical challenges for affected families. The kafala or adoption process involves navigating multiple legal systems – that of the child’s country of origin, the parents’ country of residence, and French law.

Each case is unique.

If you are considering international adoption, wish to welcome a child through kafala, or are facing difficulties obtaining a visa for a child, it is essential to seek guidance from a lawyer specialised in private international law.

Our firm supports you every step of the way:

• Analysis of the applicable legal framework based on your family situation

• Advice on the most appropriate procedure (kafala, simple or full adoption)

• File preparation and legal representation

• Assistance with administrative procedures (nationality, residence permit application, etc.)

Dr Sabrina Benghazi
Associate, Giambrone & Partners LLP