23 August, 2017

Family reunification and protection of the minor in Italy – How to apply the institution of Islamic “Kafala” by means of an Italian qualified lawyer specialized in family law

The Islamic “Kafala” is an instrument of child protection, provided under Islamic law that in Italy is considered sufficient to obtain the family reunification (ricongiungimento) with the minor. When husband and wife are both foreigners, or one of the two is an Italian citizen who married a foreigner, or their respective country of origin is different, it is necessary to evaluate what is the applicable law to the concrete case, in order to protect the rights of the couple, even in case they have children. For this reason, it is appropriate to appoint an Italian qualified lawyer specialized in family law also internationally, who is able to advice the client concerning the application of the foreign law.

The knowledge of institutions, typical of foreign laws, is fundamental especially concerning cases of mixed couples who usually cross a path which is inevitably more complicated in comparison with the one crossed by a couple made of two people who have the same cultural basis.

We may think of a couple, where she is Italian and he is Moroccan: they decide to get married. In Morocco, he is the custodian of a child, pursuant to Islamic institution of “Kafala” and he would like to bring the child in Italy, so that also he could be part of the family. This foreign couple needs a highly specialized legal advice to the purpose of protecting their rights in a foreign country without too many difficulties.

 

To recognize in Italy different foreign juridical institutions

The “Kafala” is an instrument of protection typical of Islamic religion, and it is recognized also on an international level thanks to the Convention of New York. It provides that the minors who remain alone, e.g. orphans or left alone, can be assigned to custody of third parties (not necessarily relatives), who have the obligation and the duty to educate them, to cure them and to maintain them, in accordance with Islam’s principles. This institution does not create neither any kind of parent-child bond (filiazione) nor further ties between the minor and the custodian: the child does not take the custodian’s surname and he does not acquire inheritance rights. For this reason, showing an equivalence to the parent-child bond in order to get benefit of the rights and of the privileges that the countries reserve to the parental relationship could be complicated, as from the juridical point of view, the Islamic “Kafala” is an institution that has no similar figures in western countries.

 

The “Kafala” in the decisions of the Italian Courts

Due to the absence of any parent-child bond between the custodian and the minor, in case the custodian would move to another country some difficulties regarding the possibility of obtaining the family reunification (ricongiungimento) could arise out of the situation.

The decisions of the Italian Courts, to this purpose, in the latest years have however provided some answers quite often in favour of the custodian’s requests, recognizing that the “Kafala” could operate as an assumption for the family reunification, in compliance with terms and conditions set forth under the Italian public law (in particular, set forth under the Testo Unico sull’Immigrazione).

On the basis of the most recent decisions of the Italian Courts, therefore, the husband – custodian of the child and willing of bringing him to Italy – should file for the visa of family reunification to the Italian consulate in Morocco and, in case of denial, could file for an appeal (ricorso), with the legal advice of an Italian qualified lawyer specialized in family law, before the competent Italian Court which, probably, would accept the request.

Marzorati Law Firm is specialised in family law, also internationally, and its lawyers usually deal with separations, divorces, child support and family support. To advise all its clients all over Italy and worldwide, Marzorati Law Firm has also developed a network, made also of at least a barrister/solicitor, an attorney-at-law, an abogado, and an avocat à la cour, all qualified in their respective country of practice.


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