EU Magistrate Calls for Clarity on Child Guardianships

(CN) – A magistrate recommended Tuesday that the European Court of Justice rule a child in the legal guardianship of an EU citizen, but not officially adopted, is not a direct descendant of that citizen for the purposes of entry into a member state.

A press release from the court notes that the “kafala” system in Algeria and other countries follows Islamic tradition and forbids outright adoption. It establishes a form of temporary legal guardianship allowing an adult to take responsibility for a child’s care and education without being designated the parent of that child.

A French couple living in the United Kingdom was granted legal custody of an abandoned child by Algerian authorities and asked U.K. officials to grant the child entry clearance as an adopted minor.

U.K. authorities denied clearance for the child, and after an appeal Britain’s high court asked the European Court of Justice whether the child could be deemed a direct descendant of her guardians.

A European Parliament directive establishes ways a child who is not a citizen of the European Union can enter and live in a member state. The process is essentially automatic if the child is a direct descendant of people caring for them, but otherwise an evaluation of circumstances is required.

Advocate General Manuel Campos Sanchez-Bordona said Tuesday that the concept of direct descendants needs to be given a uniform interpretation across the EU.

In a non-binding opinion, he wrote that a person caring for a child from a country with a kafala system can only be their legal guardian, and the child cannot become their son or daughter.  

However, Campos Sanchez-Bordona also said that a child coming from a kafala system could fall in the category of “other family members” if certain requirements are met. That designation would mean an EU member state must process the child’s entry and residency according to national law and in consideration of the child’s best interests.

“In circumstances such as those in the present case, the ‘primary consideration’ of the child’s best interests requires the case to be assessed in accordance with a prior evaluation procedure that is different from the procedure applicable to direct descendants,” the opinion states.

%d bloggers like this: