​The institution of the kafala is an example of a cultural practice that has found great accommodation in the jurisprudence of states outside the Islamic system of law, to the extent that its inclusion among the instruments of international protection of minors and its recognition in most legal systems is now commonplace.
Italian jurisprudence has recognised the institution gradually. At first it legitimised it in its 'judicial' form, being the subject of a foreign court order, as a prerequisite for family reunification between the kafil and the minor entrusted to it. At that time, this recognition concerned only subjects who did not have Italian citizenship,[1] but after the Court of Cassation’s decision in Civ. SS.UU. no. 21108/2013[2] the possibility of taking advantage of reunification was extended to Italian citizens as well, with the specification that there was no violation of the principle of international public order or circumvention of the rules on international adoptions precisely because the kafala did not have the same effects as the latter, as it could not determine any filial relationship. Other particularly significant pronouncements concern the equivalence in recognition between 'judicial' kafala and 'negotiated' kafala, in which the fostering agreement takes place between private parties and is then approved by a competent judicial or notarial authority.[3] Finally, other pronouncements have since dealt with the institution in a broader sense, dwelling on the identification of its effects in the legal system. As of today, even in the trial courts, the effectiveness in the Italian legal system of the institution and of the measure establishing the care relationship between kafil and the minor is affirmed, through the rules concerning the enforcement of the measures of foreign authorities in the Italian State, though not disregarding an assessment of the concrete case carried out always with a view to protecting the minor's interest;[4] this excludes the need to open guardianship proceedings against the child entrusted in this way, as well as the possible appointment of a guardian other than the person identified as kafil, the latter already having legal guardianship as a foster parent appointed by the court/judicial authority of competent venue;[5] it recognises the kafala bond as a prerequisite for the right to parental leave, pursuant to art. 26(6) of legislative decree 151/2001 (consolidated text of the legislative provisions on the protection and support of maternity and paternity).[6] The importance of the institution has led the Court of Cassation to ask the trial courts to re-evaluate the possibility of the configuration of the crime of aiding and abetting illegal immigration for the person who brings with him the child entrusted to him in kafala, thus introducing him into the country.[7]

​The European Court of Justice has also helped to enhance the value of the institution in its ruling of 26/03/2019, no. 129 (Grand Chamber), stating that the child entrusted in kafala, even if he/she cannot be identified as the "direct descendant" of the foster parents, who are EU citizens, is to be considered at least as "another family member" of the same, pursuant to Article 3(2)(1)(d) of Directive 2004/38 and therefore has the right to an entry visa in one of the EU Member States.
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It is true that this path of accommodation of the practice in the legal systems other than those of origin was facilitated by the presence of certain norms in important international conventions that provided for this institution as an instrument of child protection. Indeed, the kafala is recognised not only by the New York Convention on the Rights of the Child of 1989 (Art. 20; ratified by Italy with Law No. 176/1991), but also by the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996 (Art. 3(e) and Art. 33; ratified by Italy with Law No. 101/2015). Such laws facilitate the recognition of its strongly institutional character, and that in both its forms, negotiated or judicial, it is the subject of a measure of local authority and therefore also speaks with respect to the suitability of the persons involved in the custody and care of the child.

This was, however, a path that was not without its difficulties and that is still evolving today, given the occurrence of numerous interventions on the subject, specifically in the courts, always aimed at reforming its limits from time to time (such as the reported judgments of merit). The institution is confronted with important instances of the domestic legal system such as, for example, the need to control the entry of foreigners into Italy and migratory flows, in the case of reunifications in particular, but also with the interest of minors in family unity, even though it may constitute a form of revocable removal from the family of origin.
In this path, mostly jurisprudential, the evolution of the concept of 'public order' has certainly played a fundamental role, as it is more attentive, in relations between domestic and international law, to enhancing shared principles with respect to the international community with a view to greater protection of fundamental rights, rather than creating an exclusionary barrier with respect to the domestic institution, as was the case in the past.[8] Moreover, to date the same legal systems have generally shown the need to resort themselves to 'spurious' forms of adoption (Garaci, 2020), different and much more modular than the classic legitimising adoption scheme, capable of adapting more closely to the concrete case and better balancing the importance of maintaining relations with the child's family of origin with the child's interest in access to more efficient conditions of care, in a manner similar to what happens in the relationship resulting from the kafala.[9]
The careful use of the 'best interests of the child' parameter has thus played a primary role. In fact, it is evident how this concept has been used in kafala according to an optimal scheme, which could also serve as an example for other cultural practices where it is necessary to balance the different interests of the child, including that of his or her cultural identity.
The best[10] interest of the child is an extremely multifaceted concept and over time it has undergone and continues to undergo mutations in its use. Some scholars point out that it is by nature a parameter with blurred contours, that it cannot be packaged into a series of provisions (Iovane, 2022) to be adopted for the protection of the child in every eventuality, but rather into a set of several elements, a multifaceted parameter oriented towards the combined evaluation of interests in the immediacy of the child's life but also in a future perspective, that does not sanction automatisms with respect to the superiority of these interests over others, just as it is not channelled into inflexible dispositive elements that do not allow the adjudicating bodies a broad assessment of the concrete case (Lamarque, 2023). It emerges from the reported decisions on the subject of kafala that this parameter has been used in its most reasonable form, with an assessment that does not disregard the concrete fact and strikes a balance between the cultural identity of the child and his or her physical and psychological well-being.
 

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NOTEs

[1] Cass. Civ. sez. I - 20/03/2008, no. 7472.

[2] Cass. Civ. Sec. Un. - 16/09/2013, no. 21108.

[3] Cass. Civ. sez. I - 2/02/2015, no. 1843.

[4] Arts. 65 and 66 of Law 218/1995, inherent in the Italian system of private international law; in this sense see Court of Appeal section II - Salerno, 26/07/2022, no. 23.

[5] Court sez. I - Mantua of 10/05/2018.

[6] Tribunal sez. lav. - Venice of 24/09/2021, no. 542.

[7] Cass. Pen. sez. I - 14/04/2021, no. 22734.

[8] This development is discussed by Iovane (2022), making an analysis of this concept precisely with reference to the parameter of the best interests of the child.

[9] Garaci (2020) cites some examples of this kind, including: the parental delegation provided for by the French system, which envisages a form of sharing parental responsibility through parental delegation; the open adoption in use in the USA, which allows the adopted child to maintain ties with the family of origin; in relation to the Italian system, the mild adoption model, derived from the jurisprudential interpretation of Art. 44, lett. d., of Law No. 184 of 1983 (so-called adoption in special cases), which also provides for the maintenance of the relationship between the child and his or her blood family. In this regard, it is worth mentioning, for instance, the Supreme Court's order of referral to the Constitutional Court, no. 230 of 5.01.2023, in which it asked to verify the constitutional legitimacy of the adoption law provision that provides as a general rule for severing the relationship between the adoptee and the family of origin. The Court of Cassation's doubt concerns, in fact, whether the severing of these ties corresponds to the best interests of the children in the case of orphans of femicide, in relation to their relationship with grandparents and paternal uncles. The Constitutional Court addressed this issue in its judgment No 183 of 28/09/2023, pointing out how a constitutionally oriented interpretation of the contested rule (art. 27; Law No 184/1983) excludes the absoluteness of the prohibition to maintain particular socio-affective relations between the minor and his family of origin, all the more so if in this maintenance the judge sees the realisation of the minor's interest, a way to protect the continuity of his affective ties and his identity.

[10] Some authors point out that in translating the concept of Best Interest of the child, the term "best" is preferable to the term "superior", as the former would better emphasise the need to balance these interests against the others involved, without giving the idea that these are always and in any case prevalent. See Iovane (2022) and Lamarque (2023).