SLF funded victory at the CJEU

The chair of SLF’s expert panel, Manjit Gill QC, instructed by SLF funded CORAM Children’s Legal Centre, just won a positive ruling at the Court of Justice of the European Union in an intercountry adoption appeal concerning an Algerian child.

The CJEU was asked to make a preliminary ruling on whether a child who is in the permanent legal guardianship of an EU citizen or citizens, under “kafalah” or some equivalent arrangement provided for in the law of his or her country of origin, a “direct descendant”.

It ruled, given that the placing of a child under the Algerian kafala system does not create a parent-child relationship between the child and its guardian, a child who is placed in the legal guardianship of citizens of the EU under that system cannot be regarded as a “direct descendant” of a citizen of the EU. However, it added that a child in such a situation falls under another concept referred to in the directive of the freedom of movement, namely that of one of the “other family members”.

As a consequence the Court stated: “It is for the competent national authorities to facilitate the entry and residence of a child placed in the legal guardianship of citizens of the EU under the Algerian kafala system as one of the “other family members” of a citizen of the EU, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned.”

Once a satisfactory assessment is completed the court added “the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.”

Manjit Gill QC, instructed by the Coram Children’s Legal Centre, appeared as intervenor. Various other counsel and solicitors from England, Wales and Scotland were also involved in the proceedings.