Humanitarian and compassionate (H&C) considerations: Assessment of guardianship and Kafala arrangements

Applies to in Canada and overseas.

On this page

• Context
• Legal guardianship
• Kafala
• Humanitarian and compassionate (H&C) considerations
• Specific considerations related to guardianship and kafala arrangements
• Where H&C relief is granted
• Reference

Context

In some circumstances, a child may not have a parent(s) (including adoptive parents) or the parent(s) may not be able to care for the child. In these situations, another adult may have been granted parental responsibilities for the care of that child under the law in Canada or in another country. Note that this is distinct from de facto situations where an adult may have day-to-day responsibilities for a child, but those responsibilities have not been provided to that person by a legal authority.

Situations where non-parents have responsibilities for a child may include the following:

• court orders of legal guardianship (which may also be court orders of legal custody for a non-parent, or court orders of parental responsibility for a non-parent [parenting orders])
• court orders of kafala (which is an arrangement under Islamic law to care for a child, which may or may not be accompanied by a document from a religious authority)
• other situations of kafala without a court order (for example, with a document from a religious authority)

In situations involving guardianship or kafala, the child does not meet the definition of a family member under subsection 1(3) of the Immigration and Refugee Protection Regulations (IRPR) as the child is not considered a “dependent child” as defined under section R2. The child is not considered a “dependent child” as a guardianship or kafala arrangement does not meet the definition of an adoption under subsection R3(2).

This means that a child under a guardianship or kafala arrangement may not be included as a family member in an application for permanent residence.

In most cases, the child also will not be able to be sponsored as a member of the family class. Since a child under a guardianship or kafala arrangement does not meet the definition of a “dependent child,” a child under a guardianship or kafala arrangement is not eligible for sponsorship under the family class under paragraph R117(1)(b).

Additionally, a child under a kafala arrangement cannot be sponsored under the “child to be adopted in Canada” category (FC6) under paragraph R117(1)(g). This is due to the fact that, in most countries whose judicial system is based fully or partly in Islamic law, adoption as defined in Canadian law is neither recognized nor permitted for Muslim children and people wishing to adopt. Consequently, children under kafala arrangements cannot be “placed for adoption” or “legally available for adoption” in their country of residence, a requirement under subparagraph R117(1)(g)(iii)(A) and the Hague Convention. In some situations, a child under a guardianship or kafala arrangement may qualify under paragraph R117(1)(f) provided they meet this definition; however, this would be based on the relationship to the non-parent rather than the existence of the guardianship or kafala arrangement.

These arrangements do not meet the requirements for an intercountry (international) adoption, and the safeguards established in the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention), to which Canada is a party, do not extend to guardianship or kafala arrangements.

Legal guardianship

Parental responsibilities for a child may be granted to a non-parent under a court order of legal guardianship, for example, where the parents have died or cannot care for the child. As stated above, this is distinct from de facto situations.

Kafala

Most countries whose judicial system is based fully or partly on Islamic law do not permit adoption. Other measures may be available for protecting children who are temporarily or permanently deprived of parental care or a family environment. The best known measure is kafala.

Some countries may have processes for both adoption and kafala. However, even if a country does allow adoptions, an adoption may not always be possible for some children because of the child’s or the parent’s religion or country of origin.

Kafala is generally defined as a voluntary and legal commitment made by a person or persons (referred to as the “kafil(s)”) to take charge of the needs, upbringing and protection of a child until the age of majority. In some Islamic countries, such as Morocco, the kafala arrangement will involve a court order and may or may not be accompanied by a certificate from a religious authority. In other Islamic countries, the kafala arrangement does not involve a court order, but will be evidenced by a certificate from a religious authority. Most countries that use a system of kafala do so for domestic purposes only. As a result, there will not always be evidence of authorization for a kafil to take a child under a kafala arrangement to another country.

The analysis of legislation and its implementation in various countries governed by Islamic law shows differences in how kafala arrangements are established and the legal effects they carry. The following factors are commonly present in most kafala placements:

1. The non-severance and preservation of the legal parentage at birth (meaning it does not create a new legal parent-child relationship with the kafil or end the legal parent-child relationship with the birth parents)
2. The legal time frame of the kafala placement ends when the child reaches the age of majority
3. The non-granting of inheritance rights
4. The possibility of revocation

Humanitarian and compassionate (H&C) considerations

Subsections 25(1) and 25.1(1) of the Immigration and Refugee Protection Act (IRPA) provide discretion to grant permanent resident status or to grant an exemption from any applicable criteria or obligations of the IRPA to foreign nationals who present sufficient H&C grounds and do not meet the requirements of the IRPA, or are inadmissible. Applicants may submit evidence relating to any facts affecting their personal circumstances that they believe are relevant to their request for H&C considerations.

The purpose of H&C considerations is to allow discretion to approve compelling cases not covered by the legislation. Use of this discretion should be seen as a complementary provision to meet the objectives of the IRPA. The H&C decision-making process is highly discretionary as it considers whether a special grant of an exemption from a requirement of the IRPA is warranted.

An H&C assessment considers all relevant circumstances, including the best interests of any child directly affected. Considered together, these circumstances must be sufficiently compelling to justify granting H&C relief.

Specific considerations related to guardianship and kafala arrangements

Where a court of law has already determined the best interests of the child in deciding the parental responsibilities of a non-parent, that decision is determinative with regard to who is legally responsible for the child with respect to the country where the order is issued. It is important to always look at the wording of the guardianship or kafala order.

The person awarded parental responsibilities would then ordinarily determine, based on the best interests of that child, where the child should live, with the exception of kafala situations (see below). Kafala is typically different in that it generally does not allow the child to be moved outside of the country. A delegated decision maker must weigh the best interests of the child from an immigration perspective in determining whether to grant H&C relief. In doing so, the delegated decision maker must take into account the results of the earlier determinations of the best interests of the child (BIOC) and provide sufficient reasons for differing from those determinations, such as evidence that improper considerations or fraud were involved. Note that where there is no court order, this deference will not be necessary. However, officers are reminded that BIOC is only one factor in the decision on whether to grant permanent residence or an exemption from the requirements of the IRPA.

Decision makers should be aware that attempting to move a child to Canada under a kafala or guardianship arrangement, particularly for the purposes of a subsequent adoption in their province or territory of intended residence, may be an attempt to bypass the safeguards and principles of the 1993 Hague Convention. This risk may be reduced where certain factors are present, for example, the legal guardian or kafil is a relative, the legal guardian or kafil has an established relationship with the child prior to the application, the kafala or guardianship arrangement was undertaken while the child and non-parent were habitually residents in the foreign country, and the child is orphaned or has been abandoned to, or apprehended by, the State. None of these factors are determinative in themselves and they must be considered holistically.

While delegated decision makers may consider H&C considerations cases involving applicants destined for Quebec, if requested or on their own initiative, this option is not possible without the province’s approval. Immigration is a shared jurisdiction in Canada between the federal government and provinces. To manage immigration between Canada and Quebec, the Canada-Quebec Accord on Immigration was signed in 1991 and is enshrined in the IRPA.

While the federal government has full authority over family reunification selection, Quebec has the authority to determine and apply financial criteria for sponsors and is responsible for administering undertakings provided by sponsors. If Quebec refuses a sponsorship undertaking, the application for permanent residence is refused by IRCC as not meeting the eligibility requirements of the family class.

Quebec has selection authority for immigration on the basis of H&C considerations. Applicants who apply for permanent residence on H&C grounds and intend to reside in the province of Quebec require provincial approval and must obtain a Certificat de Sélection du Québec.

For more information on considerations that may be relevant to these types of cases, please refer to the instructions on Humanitarian and compassionate considerations: Assessment and processing and De facto family members.

Where H&C relief is granted

Where H&C relief is granted to admit a child to Canada, and where the legal parenting responsibilities for that child are held by a non-parent, the delegated decision maker must explain to the applicant that they may be unable to exercise parental authority over the child (for example, authorizing medical care for the child, enrolling them in an educational institution and representing them in legal matters) until additional legal steps are taken.

The applicant should be directed to speak to a lawyer in private practice who specializes in family law for individual legal advice and options. In most instances, after a child arrives in Canada, an application will have to be made to a Canadian court to give effect under Canadian law to the foreign court order or kafala arrangement granting parenting responsibilities to a non-parent.

For more information about intercountry adoptions, please consult the instructions on Intercountry adoptions.

Reference

Secrétariat aux services internationaux à l’enfant (SASIE), Countries that prohibit adoption – Kafala, Accessed February 12, 2024.