Many families wish to take in a child who has lost their family or whose parentage is unknown, and they begin with a question that appears simple: how do we adopt? The answer is that the legal system in Kuwait, drawing on Islamic law, does not recognise adoption in the sense of severing a child's lineage from their origin and attributing them to another father. It does recognise and encourage a different institution, fostering, which provides the child with care, affection, and stability without altering the reality of their parentage. Confusing the two leaves families with legal surprises over inheritance, documents, and travel. This article explains the institution, its effects, and the means of providing for a fostered child.
The Prohibition on Adoption
The prohibition rests on combined religious and legal considerations:
- The inviolability of lineage: lineage in Islamic law is a right of the child and of society that may not be manipulated, so a child is attributed only to their actual father.
- The prohibited effects: adoption in its full sense creates rights of inheritance and family intimacy and attributes the child to another father. These effects are not recognised.
- What the prohibition does not prevent: it does not prevent full care, maintenance, upbringing, housing, education, and affection, all of which are lawful and encouraged.
- The practical result: a foster family raises the child completely but does not become their family for purposes of lineage, inheritance, and family intimacy, which calls for compensating legal arrangements.
Family Fostering and Its Conditions
Fostering is an undertaking of care without change of lineage, supervised by the competent social care authorities:
- Its nature: an alternative care arrangement providing the child with a natural family environment rather than placement in institutional care.
- Conditions for the family: typically the financial capacity to maintain, physical and psychological fitness, good character with no record of disqualifying offences, family stability, and suitable accommodation.
- Social assessment: approval is preceded by a social and psychological assessment of the family and an inspection of the home, with periodic follow-up after placement.
- Continuing obligations: the family must provide proper care, education, and medical treatment, and notify the authority of any material change such as relocation or extended travel.
- Possible termination: the authority may end the fostering where the family is in breach or the child's best interests require it. The governing standard is the child's interest rather than the family's wishes.
Effects on Lineage, Name, and Family Intimacy
Here lie the fundamental distinctions families must understand from the outset:
- Lineage: fostering creates no lineage. The child remains attributed to their father if known, or is given a name under the prescribed procedures where parentage is unknown.
- Name and surname: the child may not be attributed to the foster parent in a manner suggesting filiation, though a family name may be given as the governing provisions permit without implying lineage.
- Family intimacy: fostering alone does not create the relationship of mahram, a practically important matter as the child reaches maturity. Doctrine addresses it through breastfeeding where its conditions are met in infancy, so families are advised to enquire about this aspect early.
- Guardianship: the foster family holds guardianship of care and upbringing, while guardianship over property may be subject to special arrangements determined by the authority or the court.
- Official documents: the child is issued their own documents, and it is advisable to know in advance what they record so as to avoid surprises in future transactions.
Inheritance and Wills: Providing for the Child
The most important practical question foster families face is how to secure the child's position after their death, and the answer lies in defined tools:
- No inheritance through fostering: a fostered child does not inherit from the foster parent or vice versa, since inheritance arises from lineage or marriage. This is the effect that most often surprises families.
- Voluntary will: the principal tool. A foster parent may bequeath to the child within one third of the estate, and since the child is not an heir the restriction on bequests to heirs does not apply.
- Lifetime gift: a foster parent may make a completed and documented gift of money or property during their lifetime, which is more secure than a will because ownership passes immediately.
- Obligatory bequest: an institution benefiting grandchildren whose parent predeceased the grandparent and who are thereby excluded from inheritance. It does not apply to a fostered child absent a lineage connection, but understanding it helps distinguish it from a voluntary will.
- Life insurance: an additional practical tool in which the child may be named as beneficiary as the policy and the law permit.
- Documentation: a will or gift must be formally documented, as an undocumented will may face denial from the heirs.
Rights of Children of Unknown Parentage
Children of unknown parentage are the group most in need of legal protection, and they hold established rights:
- Right to a name: the child is given a full name recorded in the registers, preserving their dignity and enabling them to transact.
- Right to care: the State undertakes to provide health, educational, and social care.
- Right to confidentiality: disclosing information revealing the circumstances of their origin in a manner affecting their dignity is prohibited, and this duty binds everyone who learns it through their work.
- Protection from discrimination: discrimination in education, employment, or services by reason of the circumstances of their origin is not permitted.
- Later establishment of parentage: where evidence of parentage emerges, proceedings to establish it may be taken under the rules governing parentage claims, with full effects following.
Practical Steps and Recommendations
- Begin by contacting the competent social care authority to learn the conditions and required documents before taking any step.
- Approach the social assessment with honesty and openness. Its purpose is the child's interest rather than testing the family.
- Understand the full legal consequences before committing, particularly as to inheritance, family intimacy, and travel.
- Arrange the child's financial position early through a documented will or completed gift, and do not defer this.
- Enquire about the procedures required for the child to travel abroad, which may need additional approvals.
- Keep all official fostering documents in a secure place, as they may be required for future transactions.
Fostering is a noble undertaking, but nobility of purpose is no substitute for precise legal arrangements protecting both child and family. Yamnak Law Firm advises foster families on fostering procedures and on drafting wills and gifts to provide for the child, and on matters of parentage and guardianship before the personal status courts.
