1. Introduction

Morocco has a distinctive legal system for protecting children who cannot be raised safely by their biological parents. Unlike countries where adoption creates a new legal parent-child relationship, Moroccan law generally prohibits adoptive filiation and instead recognizes kafala, a formal arrangement for the care, upbringing, education, and maintenance of eligible children.

The central legal issue is how Morocco balances three objectives:

Protecting children who have been abandoned or deprived of adequate family care.

Preserving the child's legal identity and family origins.

Providing stable care without automatically creating adoptive parentage or inheritance rights.

The principal legislation includes the Moroccan Family Code (Moudawana), particularly Article 149, and Law No. 15-01 of 2002 concerning the care of abandoned children. The legal framework is supplemented by Morocco's international obligations concerning children's rights.

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2. Legal framework governing adoption and kafala

A. Article 149 of the Moroccan Family Code

Article 149 provides that adoption has no legal value and does not produce the effects of filiation.

Consequently, a person who raises a child under kafala does not automatically become the child's legal parent in the same manner as an adoptive parent in jurisdictions that recognize adoption.

The principal consequences are:

Kafala does not create a new legal parent-child relationship.

The child's legally established filiation is not automatically replaced.

The child does not automatically acquire inheritance rights from the caregiver as a son or daughter.

The caregiver's authority is determined by the relevant judicial order and applicable law.

The child's identity and legal origins remain important considerations.

The distinction between adoption and kafala is fundamental to Moroccan family law.

B. Law No. 15-01 of 2002

Law No. 15-01 regulates the care of abandoned children. It defines kafala as an undertaking to provide for the child's protection, education, and maintenance in a manner comparable to the care a father provides for his child.

The law establishes a legal process for determining whether a child qualifies for protection and whether a proposed caregiver is suitable.

The framework includes judicial involvement, assessment of the caregiver's circumstances, and supervision of the placement. Kafala is therefore more than an informal private arrangement.

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C. Meaning of child welfare

Child welfare involves the child's physical safety, emotional development, education, health, identity, and long-term stability.

Under the United Nations Convention on the Rights of the Child, Article 3 requires the child's best interests to be a primary consideration in decisions affecting children. Article 20 addresses special protection for children deprived of their family environment and recognizes alternative care, including kafala where applicable.

These principles are relevant to Moroccan child-protection decisions, although the exact legal consequences depend on Moroccan legislation and the facts of each case.

3. Who can benefit from kafala?

Kafala under Law No. 15-01 is intended for children who meet the legislation's requirements concerning abandonment and lack of adequate parental care.

The statutory definition covers specified situations, including children whose parents are unknown, children abandoned by a known mother in circumstances covered by the law, and children whose parents are unable to provide the legally required care in qualifying circumstances.

A child does not automatically qualify merely because another family wishes to raise them. The competent authorities must establish the child's legal circumstances and apply the statutory requirements.

Principal stages of the process

Establishing the child's status: The authorities investigate the child's circumstances and the applicable legal criteria.

Assessing the applicant: The proposed caregiver's eligibility, character, and material and social circumstances are examined.

Judicial authorization: The competent judicial authority determines whether the arrangement may proceed.

Placement: The caregiver assumes the obligations imposed by the kafala order and applicable law.

Supervision: The arrangement remains subject to the relevant monitoring and protective requirements.

The procedure may differ depending on whether the child is placed domestically or the caregiver proposes to reside abroad with the child.

4. Six important judicial decisions concerning kafala and child welfare

A qualification is important for legal accuracy: the most accessible reported judgments on Moroccan kafala often come from foreign courts deciding how to recognize a Moroccan care order. The following are genuine comparative authorities relevant to Morocco's system; they should not be misrepresented as six judgments of the Moroccan Court of Cassation.

Case 1: Harroudj v. France — European Court of Human Rights, 4 October 2012

Application No. 43631/09

Facts: A French national sought to adopt an Algerian child who had been placed in her care under kafala. French law did not permit the requested adoption because the child's personal law prohibited adoption.

Legal issue: Did refusing to convert kafala into adoption violate the right to respect for private and family life under Article 8 of the European Convention on Human Rights?

Decision: The European Court of Human Rights found no violation of Article 8.

Legal principle: A state may recognize a legal care arrangement without converting it into adoption, taking account of the child's personal law and the state's margin of appreciation.

Relevance to Morocco: Although the case concerned Algeria, its reasoning is relevant to Morocco because both legal systems distinguish kafala from adoptive filiation. It illustrates that legal recognition of a caregiving relationship need not create a new parent-child relationship.

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Case 2: Chbihi Loudoudi and Others v. Belgium — European Court of Human Rights, 16 December 2014

Application No. 52265/10

Facts: A Moroccan child was placed with her aunt and uncle under kafala. The caregivers subsequently sought adoption in Belgium.

Legal issue: Whether Belgium's refusal to authorize adoption, and its treatment of the child's residence status, violated Article 8 of the European Convention on Human Rights.

Decision: The Court found no violation of Article 8 concerning either the refusal of adoption or the child's residence status.

Legal principle: Kafala can establish a meaningful family-life relationship without creating the legal parentage associated with adoption.

Relevance to Morocco: The judgment directly examines Moroccan law, including Article 149 of the Family Code and Law No. 15-01. It is one of the most important comparative decisions for understanding the international consequences of Moroccan kafala.

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Case 3: El Majdoub Bakkali v. Spain — European Court of Human Rights, 2025

Facts: A Moroccan child had been placed under kafala with a caregiver in Spain. The caregiver subsequently sought adoption, arguing that adoption would provide greater legal security and facilitate the child's integration.

Legal issue: Whether the refusal to authorize adoption was compatible with the European Convention on Human Rights, particularly the right to respect for family life.

Legal significance: The case addresses the distinction between recognizing a Moroccan kafala arrangement and creating a new adoptive parent-child relationship under Spanish law. It also highlights the practical difficulties that can arise concerning residence, nationality, and the child's legal status.

Relevance to Morocco: The decision demonstrates that the child's welfare may require practical solutions for long-term security without assuming that a foreign court must treat kafala as adoption.

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Case 4: Swiss Federal Supreme Court, 17 November 2020

Case No. 5A_341/2020

Facts and issue: The Swiss court considered an international child-placement matter involving Moroccan family law and the legal recognition of kafala in a cross-border context.

Legal analysis: The court explained that Moroccan kafala is a commitment to provide protection, education, and maintenance for an abandoned child, whereas Moroccan law prohibits adoptive filiation. It considered the implications of that distinction for the recognition and legal treatment of the placement in Switzerland.

Legal principle: A foreign kafala order cannot automatically be treated as equivalent to an adoption. Its recognition and effects must be determined under the receiving state's applicable legal framework.

Relevance to Morocco: The decision illustrates why families should obtain advice about recognition, guardianship, and child-protection arrangements before moving a child across borders.

BGer 5A_341/2020

Case 5: Dutch judicial decision concerning recognition of Moroccan kafala as adoption

Facts and issue: A Dutch court considered whether a Moroccan kafala document could be recognized as an adoption under Dutch conflict-of-laws rules.

Decision: The court rejected the argument that the kafala arrangement should be equated with adoption. It reasoned that the Moroccan document did not establish the legal parent-child relationship required for adoption and that Article 149 of the Moroccan Family Code denied adoptive filiation legal effect.

Legal principle: The legal effect of a foreign child-care order depends on what the order actually establishes, not simply on the fact that the caregivers assume parental responsibilities in daily life.

Relevance to Morocco: The decision illustrates the importance of preserving the distinction between legal care and legal parentage when Moroccan kafala orders are presented to foreign authorities.

CUREDI Law Database

Research qualification: The database report identifies the legal reasoning but does not provide enough identifying information here to state a reliable case name, date, or docket number. It should therefore be cited in formal legal work only after the full judgment has been identified.

Case 6: Moroccan Court of Cassation, reported decision concerning eligibility for kafala

Issue: Whether an applicant with a serious criminal history could be entrusted with the care of a child under Law No. 15-01.

Legal framework: Article 9 of Law No. 15-01 establishes eligibility restrictions concerning certain criminal convictions, including offences affecting morality and offences committed against children.

Reported judicial reasoning: The court upheld the rejection of a kafala application where the investigation revealed a serious criminal history and circumstances demonstrating that the applicant was unsuitable to assume responsibility for the child. The decision emphasized the child's interests and the court's authority to assess the evidence concerning the proposed caregiver.

Legal principle: The desire to care for a child is not sufficient by itself. Eligibility and suitability safeguards are designed to protect children from foreseeable harm.

Relevance to Morocco: This is a directly relevant domestic authority because it concerns the application of Moroccan statutory safeguards to a proposed kafala placement. However, the available report does not establish a sufficiently reliable docket number and date to identify the judgment more precisely, so those details should not be invented.

Maroc Droit

5. Child welfare rights under the kafala system

A. Right to protection and maintenance

A caregiver under kafala assumes responsibilities for the child's care, education, and maintenance. The arrangement should provide a safe home, adequate nutrition, healthcare, and protection against abuse, neglect, and exploitation.

A failure to meet these responsibilities may lead to intervention by the competent authorities under the applicable legislation.

B. Right to identity and family origins

Kafala does not automatically replace a child's legal parentage with that of the caregiver. The child's legally established identity and family origins must be considered in civil registration and other legal proceedings.

This distinction is particularly important when a caregiver wishes to change the child's surname or obtain documents that imply an adoptive relationship.

C. Right to education and healthcare

The child's welfare requires access to schooling, medical care, and appropriate developmental opportunities. The caregiver must comply with the responsibilities imposed by the kafala order and applicable law.

Where the child resides abroad, additional questions may arise concerning school enrolment, healthcare eligibility, residence documentation, and authority to consent to medical treatment.

D. Emotional security and stable placement

A child who has experienced abandonment or family separation may require additional emotional support. Authorities and caregivers should consider continuity of care, relationships with siblings and biological relatives where appropriate, and the child's developmental needs.

The child's best interests do not automatically require adoption. They require a legally secure arrangement that meets the child's actual needs.

E. Financial security and inheritance

A child under kafala does not automatically inherit from the caregiver as a biological or adoptive child. Financial protection may be provided through lawful testamentary arrangements or other permitted measures, subject to Moroccan succession law.

Caregivers should obtain advice on these arrangements rather than assume that their responsibility for maintenance automatically creates inheritance rights.

6. Kafala compared with adoption

7. International child-rights standards

Morocco's kafala framework should be understood alongside the United Nations Convention on the Rights of the Child.

Article 3 — Best interests: The child's best interests must be a primary consideration in decisions affecting them.

Article 7 — Name, nationality, and parental care: Protects specified rights relating to birth registration, identity, and parental care.

Article 8 — Identity: Requires respect for the child's identity, including legally recognized family relations.

Article 20 — Alternative care: Provides special protection for children deprived of their family environment and recognizes forms of alternative care, including kafala where applicable.

Article 21 — Adoption: Establishes safeguards for adoption in states that recognize or permit it.

These provisions support child-centred decision-making but do not require every country to use the same system of family law.

8. Major challenges in the Moroccan kafala system

Cross-border legal uncertainty: A Moroccan kafala order may be recognized abroad as a guardianship or child-protection measure without being recognized as adoption.

Long-term financial protection: The absence of automatic inheritance rights makes separate financial planning important.

Identity and civil registration: Caregivers must respect the legal rules governing filiation, names, and official documents.

Suitability of caregivers: Effective assessment and monitoring are necessary to reduce the risk of abuse or neglect.

Residence and nationality: A kafala order does not automatically confer Moroccan nationality, the caregiver's nationality, or unrestricted immigration rights.

Continuity of care: Children need arrangements that remain effective as they grow older and their educational, medical, and personal needs change.

9. Conclusion

Moroccan law distinguishes between adoption and kafala. Article 149 of the Family Code denies legal effect to adoption as a means of creating filiation, while Law No. 15-01 establishes a framework for caring for eligible abandoned children.

The judicial authorities discussed above show how this distinction affects child protection, family life, legal identity, inheritance, and cross-border recognition. The most directly relevant comparative decisions include Chbihi Loudoudi and Others v. Belgium, Harroudj v. France, and El Majdoub Bakkali v. Spain. The Moroccan eligibility decision also illustrates the importance of safeguarding children from unsuitable caregivers.

The central principle is that protecting a child's welfare does not necessarily require creating adoptive filiation. A secure placement must instead combine effective care, appropriate legal authority, respect for identity, and long-term protection.

For academic or professional legal use, Moroccan statutes should remain the primary authorities. Foreign judgments explain how other jurisdictions handle Moroccan kafala arrangements, but they do not automatically establish binding law in Morocco.