The implications of the Institution of Kafala within the Maltese context

Abstract

The large number of third country nationals moving to Malta has greatly contributed to the growth of different communities living on the Maltese Islands. For the purpose of this paper, the author tackles the legal consequences and implications of the institution of 'Kafala' in comparison with 'Adoption' as understood in the West in terms of Maltese and International legal instruments The author also conducts a general analysis of Sharia, the Qur’an and orphans in Islamic countries. Kafala primarily intends to protect vulnerable children, however the author realizes that it could potentially give rise to a complaint with regard to the rights of the child and the family. This sensitive issue may arise when a person or a family wishes to adopt an orphan, however the adoption is rejected because Private International Law refers the applicant to the laws of the orphan’s country of origin. The question of the implications of Kafala in a country where it does not exist is observed by a study of the situations in European countries, such as France, the UK and Spain. For this purpose, the author also analysis two possible scenarios involving actors coming from Sharia law countries: namely the case of a Muslim couple who wish to adopt in Malta as well as the situation of a Maltese couple who might want to adopt a child from a Sharia law country.