On 26 March, the Court of Justice of the EU delivered its judgment in case C- 129/18 regarding the notion of family members and the kafala guardianship system.

The case concerned an Algerian child, who was placed under the guardianship of a couple of French nationals through the traditional kafala system of Algeria. Two attempts to visit the United Kingdom were refused on the basis, inter alia, that kafala was not recognised as adoption in domestic law. After several unsuccessful legal challenges the case reached the UK Supreme Court, which referred a preliminary question to the CJEU on whether the notion of ‘direct descendant’ in Article 2 (2) (c) of Directive 2004/38 includes a child who is in the legal guardianship of a Union citizen under kafala.

The Court reiterated the Advocate General’s findings on the legal consequences of the kafalaguardianship system and agreed that it does not create a parent-child relationship. Although the notion of this relationship must be interpreted broadly to include both legal and biological parents, it cannot be extended to also include the relationship of a child placed in the legal guardianship of a citizen of the Union. Therefore, the latter situation cannot be included in the definition of a ‘direct descendant’ under that Directive.

However, the Court went on to consider the possibility that the situation could fall under the definition of one of the ‘other family members’ referred to in Article 3(2) (a). In this context, it observed that the wording of the provision would allow for such an interpretation. Furthermore, Recitals 6 and 31 of that Directive point to an approach that respects family unity and is in conformity with Articles 7 and 24 (2) of the Charter of Fundamental Rights of the EU. The Court further referred to the jurisprudence of the European Court of Human Rights and reiterated that Court’s finding that a kafala relationship can fall under family life in the light of individual circumstances, such as the duration and quality of the relationship.

It then concluded that national authorities must make a balanced and reasonable assessment of all the circumstances and interests involved and, especially, of the best interests of the child in question. Such an assessment would take into account the age of the child at the start of the kafala guardianship along with any elements of dependence and closeness. Moreover, Member States would also have to consider tangible risks of abuse, exploitation or trafficking of the child.