FIFTH SECTION
DECISION
Application no. 29958/25
Rahima EL MAJDOUB BAKKALI
against Spain
The European Court of Human Rights (Fifth Section), sitting on 28 May 2026 as a Committee composed of:
Andreas Zünd, President,
María Elósegui,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 29958/25) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 September 2025 by a Spanish national, Ms Rahima El Majdoub Bakkali (“the applicant”), who was born in 1982, lives in L’Hospitalet de Llobregat and was represented by Ms A.M. Vidal Cardona, a lawyer practising in Vilassar de Dalt;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint about her being unable to adopt a child of Moroccan nationality – who had been placed in the applicant’s “kafala” care – in Spain. Although adoption is prohibited under Islamic law, the domestic law of several Muslim States, including Morocco, provides for the legal concept of kafala (or kafalah), or legal care, which involves voluntarily undertaking to provide for a child and take care of his or her welfare, education and protection (see, for an overview of the legal concept of kafala in Islamic law, Harroudj v. France, no. 43631/09, §§ 15‑16, 4 October 2012). In the early 2010s the Moroccan authorities tightened the controls for the judicial grant of kafala. In particular, in circular no. 40 S/2 of 19 September 2012, the Moroccan Ministry of Justice and Freedoms instructed the relevant authorities to deny kafala to foreign applicants who were not habitually resident in Morocco, citing concerns about preserving the cultural, religious, and national identity of the children concerned. In 2015 Spanish adoption law was amended to clarify that adoption in Spain was not possible if the law of the child’s country of origin prohibited or did not allow adoption (see paragraph 12 below).
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
Proceedings in Morocco3. On 18 February 2019 the Tangier Court of First Instance entrusted the applicant, a Spanish national (originally from Morocco), and her husband, a Moroccan national, with the legal care (kafala) of a child born in 2018 in Morocco. They were subsequently appointed guardians of the child and assumed all legal responsibilities towards him until he reached the age of majority. As stated in the kafala order, on 22 October 2018 a Moroccan court had established that the child had been an abandoned minor (see, for the relevant Moroccan law provisions, Chbihi Loudoudi and Others v. Belgium, no. 52265/10, §§ 51-53, 16 December 2014).
4. On 24 July 2020 the Moroccan authorities granted special authorisation for the child to leave Morocco and settle in Spain with the applicant for the purpose of family reunification.
Proceedings in Spain5. In 2023 the applicant submitted a request for exequatur to have the kafala arrangement recognised in Spain. On 4 September 2023 the L’Hospitalet de Llobregat Court of First Instance no. 4 recognised the above‑mentioned decision of the Tangier Court of First Instance in Spain, thereby recognising the effects of kafala as a form of institution (child protection measure) which, as has been established by the domestic courts (see paragraph 7 below), is similar to “guardianship or foster care with guardianship functions”. The child in question holds Moroccan nationality and retains the original surname he was given in Morocco. He currently resides in Spain and has been granted a residence permit there. An individual who has been placed under the legal guardianship, custody or foster care of a Spanish citizen for a period of more than two consecutive years can apply for Spanish nationality after one year’s residence, in accordance with Article 22 § 2 (c) of the Civil Code (see paragraph 11 below).
6. On 10 April 2024 the applicant lodged an application for the adoption of the minor with all its effects, including the acquisition of Spanish nationality and the taking of the adoptive parents’ surname. She argued that a rigorous assessment of the child’s best interests, within the meaning of Article 3 § 1 of the UN Convention on the Rights of the Child of 20 November 1989, had revealed that adoption was both the most coherent and comprehensive means of ensuring the child’s full protection. She referred, in particular, to administrative discrimination resulting from the child’s status as a foreigner, such as the obligation to renew his residence permit regularly, increased complexity of administrative procedures, and his inability to obtain Spanish nationality within a shorter timeframe in accordance with Article 20 of the Civil Code. She further reiterated that the child’s biological father was unknown and that the child had been declared abandoned. The applicant specified that she was not seeking conversion of kafala into adoption, but rather the adoption of the minor by his guardians ex novo.
7. On 25 April 2024 the L’Hospitalet de Llobregat Court of First Instance no. 9 declared the applicant’s request for adoption inadmissible. The first‑instance court observed that, unlike adoption in Spain, kafala did not establish a bond of kinship, create inheritance rights, or effect changes of surnames, in so far as Islamic law prohibited a child’s integration into a family with the same surname as biological children and has no bearing on succession. The first‑instance court held that kafala was a child protection measure explicitly recognised in international law, and that Law 54/2007 of 28 December 2007 on International Adoption (“the LIA”) set out mechanisms to align it with other protective measures existing under Spanish law relating to, inter alia, guardianship or foster care. The court further noted that in accordance with section 19 § 4 of the LIA, as in force since 2015, a child could not be adopted if the law of his or her country prohibited adoption, except where the minor had been abandoned and was under the guardianship of a Spanish public authority (see paragraph 12 below). The court noted that it was bound by domestic conflict of laws rules (see paragraph 11 below) according to which the child could not be considered abandoned in Spain because he had already been afforded protection in accordance with the domestic law of his country of origin. Moreover, Moroccan law – the child’s national law – did not merely “disregard adoption”, but prohibited it. Accordingly, the court found that the application for adoption was inadmissible. It observed that its refusal to grant the adoption did not infringe the child’s rights to equality, dignity, education or protection, as he would still be protected despite the request for adoption not being granted. It also found that, although there was no doubt that the minor was well integrated into Spanish society, his connection to his country of origin could not be considered weak, as the applicant (who was also a Spanish national) and her husband were of Moroccan origin. The court further pointed out that, in so far as the objective of the LIA was to prevent situations in which adoption granted the child a status not legally recognised by the domestic law in his or her country of origin (adopciones claudicantes), a full adoption which has no legal effects in the child’s country of origin could ultimately be contrary to the child’s best interests.
8. On 4 December 2024 section 18 of the Barcelona Audiencia Provincial dismissed the appeal lodged by the applicant and her husband against the above‑mentioned decision, upholding the lower court’s findings. The Audiencia Provincial pointed out that kafala had been recognised as a protective measure – that is, similar to guardianship or foster care with guardianship functions. However, such recognition did not preclude the application of the LIA, nor could it produce greater effects than those granted in the child’s State of origin. The appellate court noted that the prohibition of adoption in such cases was the result of a compromise between States. Although some courts had allowed the conversion of kafala into adoption prior to the introduction of section 19 § 4 of the LIA (see paragraph 12 below), since the 2015 amendment, adoption was only possible where the child had acquired Spanish nationality. Referring to Chbihi Loudoudi and Others (cited above), the court found that the refusal to grant the adoption did not constitute an interference with family life and endorsed the lower court’s findings that the child’s fundamental rights would not be adversely affected. Lastly, contrary to the applicant’s allegations, the appellate court found that the denial of adoption did not violate religious freedom since it was confined to the application of private international law. The limits arising from the kafala arrangement did not prevent adoption in Spain. Instead, the issue was whether that institution could be matched with a compatible concept in Spanish law that did not imply full family integration.
9. An amparo appeal lodged by the applicant was declared inadmissible by the Constitutional Court on 14 May 2025 for lack of constitutional significance.
10. Relying on Article 8 of the Convention, the applicant complained that she had been denied the possibility to adopt the minor in the absence of a detailed assessment of the particular circumstances of the case and the child’s best interests. She argued that the refusal to grant the adoption had amounted to unjustified discrimination under Article 14, in conjunction with Article 9, in particular on grounds of religion and nationality, in so far as the minor had been treated differently from other children who were (i) not Muslims; (ii) in foster care in Spain unrelated to the legal arrangement of kafala; or (iii) Spanish nationals. Lastly, she complained under Articles 6 and 13 about the courts’ failure to provide sufficient reasons or make an individualised assessment of the child’s best interests.
Relevant domestic law
11. Under Article 12(6) of the Civil Code, the courts should apply Spanish conflict of laws rules of their own motion. Article 22 § 2 (c) of the Civil Code concerning acquisition of Spanish nationality through residency establishes that one year’s residence is sufficient for anyone who has spent two consecutive years under the legal guardianship, curatorship with full powers of representation, custody or foster care of a Spanish citizen or institution.
12. Pursuant to section 19 § 4 of the LIA, as amended on 28 July 2015, a child could not be adopted if the law of his or her country prohibited or did not provide for adoption, except where the minor was (i) in a situation of abandonment (situación de desamparo); and (ii) under the guardianship of a public authority.
THE COURT’S ASSESSMENT
Alleged violation of Article 8 of the Convention13. The applicant complained that the courts’ refusal to grant the adoption of the minor child placed in her kafala care had prevented the child from enjoying full legal protection, as he had encountered numerous administrative problems.
14. The Court will examine the complaint in line with the general principles summarised in Harroudj v. France (no. 43631/09, §§ 40-45, ECHR 2012, with further references).
15. The applicant did not complain of any major hindrance to the continuance of her family life, but referred to administrative difficulties encountered by the child. Bearing in mind that Article 8 does not guarantee the right to adopt (see E.B. v. France [GC], no. 43546/02, 22 January 2008), and having regard to the scope of the complaint, it is appropriate to examine the complaint in terms of positive obligations (see Harroudj, cited above, § 47, and Chbihi Loudoudi and Others v. Belgium, no. 52265/10, § 90, 16 December 2014). As in Harroudj (cited above, § 48), the Court finds that the State enjoyed a wide margin of appreciation in this case.
16. Although kafala is an institution which is not, as such, recognised under Spanish law, Spain has recognised the judicial grant of kafala as a child protection measure. As clarified by the Audiencia Provincial, the legal consequences of that recognition are analogous to those of guardianship or foster care with guardianship functions. The applicant was thereby permitted to reside with and provide care for the child on a lawful basis. It does not appear that she has faced any particular obstacles or practical difficulties in enjoying family life with him (see, mutatis mutandis, T.A. v. Switzerland, no. 13437/22, § 60, 6 March 2025).
17. The Court further notes that the refusal to grant the adoption resulted from the application of relevant international law – namely the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co‑Operation in Respect of Parental Responsibility and Measures for the Protection of Children (summarised in Harroudj, cited above, § 19) – and the relevant domestic legal framework, in particular section 19 § 4 of the LIA. That provision precludes adoption where it is prohibited under the child’s national law, save in cases where the minor is in a situation of abandonment and under the guardianship of a public. As established by the domestic courts, this exception was not applicable in the present case. At the time of the applicant’s request, the child was a Moroccan national. Adoption has no legal value under Moroccan law and does not entail any of the effects of parental filiation (see Chbihi Loudoudi and Others, cited above, § 51).
18. Furthermore, the domestic courts’ refusal to grant the adoption was also based on their intention to uphold the spirit and purpose of section 19 § 4 of the LIA. In particular, they wanted to avoid situations where the adoption was not recognised under the child’s national law in his or her country of origin. This is the case under Moroccan law (see Chbihi Loudoudi and Others, cited above, § 51). The domestic courts considered that such a situation would be contrary to the best interests of the child. The Court does not consider this approach to be arbitrary (see, mutatis mutandis, ibid., § 101). It appears that the amendment of section 19 of the LIA came after the Moroccan authorities had tightened the controls and requirements for the judicial grant of kafala to foreign nationals not resident in Morocco (see paragraph 1 above). Following the amendment, it would appear that the domestic courts do not generally grant adoptions resulting from kafala arrangements in States where adoption is prohibited or has no legal effects, although there are a few exceptions – especially if the foster parent is Spanish. However, where kafala has been recognised, the child is protected in Spain in a similar way to foster children. The Court sees no reason to depart from the domestic court’s conclusion that the refusal to grant adoption would not entail restrictions of the child’s fundamental rights, nor does it find that the domestic courts failed to respect the applicant’s rights protected under Article 8 of the Convention.
19. Lastly, as kafala does not establish a legal parent‑child relationship, it does not suffice to enable the child to acquire the foster parent’s nationality or surname. However, in line with Harroudj (cited above, § 51), the Court notes that by virtue of Article 22 § 2(c) of the Civil Code (see paragraph 11 above), an individual who has been placed under the legal guardianship, custody or foster care of a Spanish citizen for a period of more than two consecutive years can apply for Spanish nationality after one year’s residence.
20. The reasons given for the contested refusal were therefore relevant and sufficient. Having regard to the margin of appreciation afforded to the respondent State, and in the absence of any indication of arbitrariness or a failure to respect the essence of the applicant’s right to family life, the Court finds that the complaint under Article 8 of the Convention is manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 (a) of the Convention.
Alleged violation of Article 14 in conjunction with Article 8 of the Convention21. The applicant further complained that the inability to adopt the child in her kafala care had amounted to unjustified discrimination, in so far as the minor had been treated differently compared to other children not in kafala care but who had been placed in foster care by the Spanish courts, or who had acquired Spanish nationality. This constitutes, in essence, a complaint pertaining to Article 14 of the Convention taken in conjunction with Article 8.
22. For the purposes of Article 14, a difference in treatment between persons in analogous or relevantly similar situations is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, for instance, Camp and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X).
23. The Court acknowledges that the applicant would not have encountered the same prohibition of adoption had the child been placed in care independently of a kafala judicial grant, or had the child been a Spanish national. The Court considers that the issue at the heart of the applicant’s complaint under Article 14 of the Convention is her inability to adopt the minor because of his national law – that is, Moroccan law. This issue has already been examined under Article 8. In the Court’s view, for the same reasons which led to the finding that the complaint under Article 8 is inadmissible, there exists an objective and reasonable justification under Article 14 (see, for similar reasoning, Chbihi Loudoudi and Others, cited above, §§ 144-45, with further references).
24. Accordingly, the complaint under Article 14, taken in conjunction with Article 8, is likewise manifestly ill‑founded and must be rejected in accordance with Article 35 § 3 (a) of the Convention.
Alleged violation of Article 9 taken alone and in conjunction with Article 1425. Relying on Article 9 of the Convention, taken alone and in conjunction with Article 14, the applicant complained that, despite Spain being a non‑confessional State, the Spanish courts had nonetheless taken the Islamic origin of kafala into account and had assessed whether she and her family had legitimately professed a particular religion. She submitted that such reasoning had resulted in discriminatory treatment on grounds of religion.
26. The applicant’s allegations under this head find no support in the case material. The refusal to grant the adoption was clearly based on the minor’s national law and the choice of law rules in matters of adoption, regardless of religious considerations. The applicant did not demonstrate that the refusal had otherwise interfered with her rights under Article 9 of the Convention. Furthermore, the Court is unable to discern any appearance of unjustified difference in treatment on the grounds of the applicant’s religious beliefs.
27. This part of the application is accordingly manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
Alleged violation of Articles 6 and 1328. The applicant further complained under Articles 6 and 13 of the Convention that the proceedings had been unfair and ineffective, as the domestic courts had rejected her application for adoption, without a clear legal basis, sufficient reasoning or individualised assessment of the child’s best interests.
29. With regard to Article 6, the domestic courts provided reasons for their decision to declare the application for adoption inadmissible, which were examined under Article 8 above. The courts also responded to the applicant’s key arguments. In the absence of any procedural irregularities, the Court finds no reason to conclude that the decisions of the domestic courts were affected by arbitrariness or that they were otherwise manifestly unreasonable.
30. The complaint is therefore manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
31. Lastly, in the absence of an arguable claim under Article 6 or any other substantive Convention provisions (see Walter v. Italy (dec.), no. 18059/06, 11 July 2006), the complaint under Article 13 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 June 2026.
Martina Keller Andreas Zünd
Deputy Registrar President