CJEU: AG Campos Sánchez-Bordona delivers opinion in case C-129/18 (SM)

Tuesday, February 26, 2019

On 26 February, Advocate General Campos Sánchez-Bordona delivered his opinion in case C- 129/18 regarding the notion of family members and the kafala guardianship system.

The case concerned an Algerian child, who was placed under the guardianship of a couple of French nationals through the traditional kafala system of Algeria. Two attempts to visit the United Kingdom were refused on the basis, inter alia, that kafala was not recognised as an adoption in domestic law. After several unsuccessful legal challenges the case reached the Supreme Court, which referred a preliminary question to the CJEU on whether the notion of ‘direct descendant’ in Article 2 (2) (c) of Directive 2004/38 includes a child who is in the legal guardianship of a Union citizen under kafala.

First, the Advocate General looked at the concept of kafala in Algerian law to state that this form of guardianship does not create a relationship of filiation and does not equate to adoption, which is expressly forbidden in that country. Moving on to international law, the AG noted that the Convention on the Rights of the Child includes kafala and adoption among the forms of protective measures under Article 20 but the separate mention of adoption in Article 21 means that those measures are not on a par with each other. Lastly, both the ECtHR jurisprudence and the 1993 Hague Convention on Adoption point to the same conclusion that kafala is not equivalent to adoption.

The Advocate General went on to also examine how the relevant EU legal instruments, such as Directives 2003/86 and 2011/95, refer to children and underlined that adoptive children are always included in that concept. As the texts of those instruments indicate, the parent-child relationship is always a key element and cannot support the idea that the concept of direct descendant could be extended to also include legal custody of guardians. Moreover, the kafala system is neither permanent nor comparable to a parent-child relationship and can actually coexist with a biological parent-child relationship. Consequently, a child under kafala cannot be considered as a direct descendant for the purposes of that Directive.

However, in light of the need to safeguard the best interests of the child and the protection of family life under the Charter of Fundamental Rights of the EU, a child placed under the kafala system could fall under the broader notion of ‘other family members’ under Article 3 (2) of Directive 2004/28. When this is applicable, the host Member State must facilitate the child’s entry and residence in accordance with national legislation, taking into account the aforementioned safeguards. Lastly, the host country’s authorities would be entitled to refer to Article 35 of the latter in case of fraudulent or abusive adoptions, as well as to examine whether sufficient regard was had, in the procedure for awarding guardianship or custody, to the best interests of the child.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.  



Best interest of the child
Family member
Family reunification