The Famimove Transnational Roundtable on kafala organized on 15 December 2023 in Paris highlighted the importance of the cooperation mechanism between central authorities set up by Article 33 of the 1996 Child Protection Hague Convention.
Article 33 of the 1996 Hague Convention states:
(1) If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.
(2) The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests.
In this context, it is interesting to have a look at the Moroccan case law since Morocco is, among the Arab countries, the only State to have ratified the 1996 Hague Convention.
Béligh Elbalti made us aware of a decision rendered by the Moroccan Supreme Court on 7 February 2023 (Ruling No. 71). It concerns a kafala established in Morocco under Moroccan law when the kafil lives in France, also a Contracting State of the 1996 Hague Convention (see the comment by B. Elbalti on Conflictoflaws.net, 26.12.2023).
The tribunal of Taroudant (Morocco) entrusted an abandoned child to a single woman living and working in France. The Court of Appeal decided to overturn the decision stating that Article 33 of the 1996 Hague Convention has not been applied.
The claimant appealed to the Moroccan Supreme Court. She argued that the requirements of the Moroccan law – which complied with the UN Child Convention – were fulfilled and that the Public Prosecutor failed to invoke the 1996 Convention in first instance. She also stated that Article 33 is not applicable in a Franco-Moroccan dispute, since France recognizes kafala.
The Moroccan Supreme Court, however, dismissed the appeal on the basis of the prevalence of international law on domestic law, and ultimately of Article 33 of the 1996 Convention. The case shows the need to make judges of lower courts more aware of the 1996 Convention and its cooperation mechanism in order to safeguard the best interests of the child and respect treaty obligations.
Fabienne Jault-Seseke is Full Professor of Private Law at the University of Versailles Saint Quentin and is the head of the Research Unit of the same University, Partner of the FAMIMOVE Project.
Credits: YouTube Channel of the Moroccan Supreme Court
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