1. Muslim children are present in the UK care system but absent from adoption

Although national statistics do not record children’s religion, the available empirical evidence provides a consistent picture of the position of Muslim children within the English care system. Studies drawing on Cafcass data and foster care agency records indicate that Muslim children form a substantial proportion of looked-after children and are frequently placed in non-kinship foster care, which are placements arranged by the state with foster carers rather than relatives, often on a short-term or transitional basis instead of a route to permanence.Footnote ¹⁵ In one London borough, Cafcass officers estimated that approximately one-third of looked-after children were of Muslim heritage, based on the distribution of Eid cards within care placements.Footnote ¹⁶ Other studies suggest that around one in ten children recorded by foster care agencies are Muslim,Footnote ¹⁷ with an estimated 4,500 Muslim children in the UK care system and approximately 3,000 entering care each year.Footnote ¹⁸

While the state assumes responsibility for safeguarding children removed from their families, prospects of securing permanent family placements remain strongly patterned by race. Government data published in 2022 confirms that children from Black and minority ethnic backgrounds are disproportionately represented among looked-after children in England when compared with the general child population, yet remain significantly underrepresented among those leaving care through adoption or special guardianship. Children classified as White or mixed White ethnicity were more likely to leave foster care than children classified as Asian, Black, or Other ethnic groups.Footnote ¹⁹ Further empirical work focusing specifically on Muslim children indicates that delays in achieving permanence are particularly pronounced where children have complex needs, are older, part of a sibling group, or of dual heritage.Footnote ²⁰ This disparity cannot be explained by a lack of Muslim children requiring alternative care, nor by distinctive pathways into the care system. Muslim children enter care for the same reasons as other children, including abuse, neglect, family breakdown, domestic abuse, parental illness or disability, substance misuse, and poverty.Footnote ²¹ The consequences of this disparity are considerable Children who remain in long-term care experience consistently poor outcomes, including placement instability, disrupted schooling and educational attainment, and a substantially increased likelihood of contact with the criminal justice system in early adulthood compared with children who have not been in care.Footnote ²² These outcomes underscore the importance of securing stable and permanent family placements and provide essential context for understanding why the persistent absence of Black and minority ethnic children, including Muslim children, from adoption is of such concern.

A number of reforms have sought to improve permanence outcomes for minority ethnic children, understood here as the ability of children to leave care in a timely manner through stable long-term family arrangements, including adoption or special guardianship. Two measures are particularly relevant to the position of Muslim children. The first is the introduction of a distinct long-term care order that preserves legal ties with the birth family, namely the Special Guardianship Order (SGO).Footnote ²³ The second is the subsequent removal in England of the requirement to achieve a cultural or religious match between the adoptive child and family.Footnote ²⁴ Each reform reflects a different response to concerns about identity and continuity, within the adoption framework, and each has had distinct implications for Muslim children in care. The SGO, created under the Children Act 1989, appoints one or more individuals as a child’s ‘special guardian’. SGOs were designed to meet the needs of older children who do not wish to have their legal relationship with their parents fully severed, and for children cared for by members of their wider family.Footnote ²⁵ This design has been widely understood as particularly relevant for Muslim families, for whom permanent legal severance of lineage raises religious or cultural concerns.Footnote ²⁶ An SGO creates a long-term family placement by transferring day-to-day responsibility for the child’s upbringing from the local authority and birth parents to the special guardian. The child formally leaves the care system, and the special guardian acquires primary decision-making authority concerning education, medical treatment, and religious upbringing. However, unlike adoption, the order does not extinguish the child’s legal relationship with the birth parents and can be discharged.Footnote ²⁷ Birth parents remain the child’s legal parents, although their parental responsibility is curtailed.

SGOs provide long-term care for a child without conferring the full legal status of adoption or extinguishing lineage and so have been regarded as potentially beneficial for Muslim children in the care system, offering stability without the complete severance of genetic ties that may conflict with perceived religious obligations. In 2020, for example, approximately 3,700 children were placed with special guardians, a figure broadly comparable at that time to the 3,440 children adopted in the same period.Footnote ²⁸ More recent data confirm that special guardianship continues to function as a significant route out of care. In the reporting year 2023, 3,840 looked-after children ceased to be in care as the subject of an SGO, with around one in seven children leaving care through this route.Footnote ²⁹ However, there is no indication in the available statistics, case law, or empirical research that special guardianship has been widely used to secure permanence specifically for Muslim children.Footnote ³⁰ This limitation is compounded by the absence of religion-specific data within the English care system. What can be observed, however, is a persistent pattern of ethnic disparity in permanence outcomes. Department for Education data reveal that, across permanence routes, children classified as White or Mixed ethnicity are more likely to leave care through adoption or special guardianship than children classified as Asian, Black, or Other ethnic groups, with corresponding proportions of approximately 30–36% compared to 5–7%.Footnote ³¹ This pattern is corroborated by population-level analysis published by the Nuffield Family Justice Observatory, which confirms that Black and Asian children are significantly less likely to exit care proceedings through adoption or special guardianship than White or Mixed-ethnicity children, even when controlling for age, sibling group status and region.Footnote ³² Policy reviews have consistently echoed these findings, noting that ethnic disparities in adoption and permanence outcomes persist despite targeted reform efforts.Footnote ³³ While ethnicity is not a proxy for religion, these patterns nonetheless demonstrate that children from minority backgrounds experience markedly poorer permanence outcomes overall. The available evidence suggests that special guardianship has not, in practice, mitigated the structural barriers faced by Muslim children in securing permanent family placements, notwithstanding its apparent doctrinal compatibility with religious concerns about lineage.

The second major reform relevant to permanence outcomes for minority ethnic children was the removal of the requirement to achieve a cultural or religious match in adoption placements, a change introduced in England but not Wales. Prior to this reform, section 1(5) of the Adoption and Children Act 2002 required due consideration to be given to a child’s religious persuasion, racial origin, and cultural and linguistic background when identifying adoptive placements. The concern that rigid approaches to ethnic and cultural matching could contribute to delay, and thereby undermine children’s welfare, was well established in both policy and academic debate and helped to shape this reform. The Children and Families Act 2014 removed this requirement in England, with the stated aim of increasing adoption rates and reducing delay. At the time, the then Education Secretary, Michael Gove, argued that while ethnic matching could be beneficial, it was wrong to allow considerations of race to obstruct adoption where otherwise suitable placements were available.Footnote ³⁴ As a result, local authorities in England are no longer subject to a specific statutory requirement to prioritise cultural or religious continuity in adoption placements. Notably, this reform did not eliminate consideration of such factors altogether, but was intended to ensure that they are not treated as determinative or given priority over other welfare considerations. The Explanatory Notes to the 2014 Act confirm that adoption agencies remain under a duty to have regard to a child’s religious persuasion, racial origin, and cultural and linguistic background as part of the broader welfare assessment.Footnote ³⁵

However, the removal of the ethnic-matching requirement has not produced the intended increase in adoption, either overall or for Black and minority ethnic children. Adoption rates have continued to decline over recent years. In the year ending March 2023, the number of looked-after children who were adopted fell by a further 2% to approximately 2,960, continuing a downward trend. More recent data confirm that adoption numbers have since fallen further, with no corresponding increase in the adoption of children from minority ethnic backgrounds.Footnote ³⁶ Some commentators initially suggested that this decline might be explained by heightened judicial scrutiny following the decisions in Re B and Re B-S, which emphasised that adoption should be pursued only where ‘nothing else will do’.Footnote ³⁷ This, in turn, prompted local authorities to undertake more intensive evaluations of all potential alternatives, including enhanced support to enable children to remain with their parents. Yet this interpretation was subsequently qualified. In Re R, Sir James Munby confirmed that the legal framework had not changed and that many of the assumptions circulating after Re B-S rested on ‘myths and misconceptions’.Footnote ³⁸ As subsequent socio-legal analysis has demonstrated,Footnote ³⁹ judicial clarification does not necessarily undo the practical or cultural effects of earlier decisions, and it remains possible that the heightened scrutiny associated with Re B-S continued to shape professional practice even after Re R. Even so, more than a decade on, any continuing influence of these decisions cannot, on its own, adequately account for the sustained decline in adoption or the persistent underrepresentation of minority ethnic children among those adopted. The limited impact of this reform suggests that improving permanence outcomes for minority ethnic children requires more than loosening placement requirements. It calls for closer scrutiny of the cultural and religious factors shaping adoption decisions among prospective parents, and of the conditions under which adoption can be supported from the perspective of children, assessed against the socio-legal assumptions underpinning English adoption law. Without examining whether those assumptions sufficiently accommodate and acknowledge concerns about identity, lineage, and legitimacy, reforms focused solely on placement mechanics are unlikely to address the barriers faced by Muslim children in securing permanent family placements. These barriers impact permanence outcomes for children and the conditions under which prospective Muslim adopters assess whether adoption is legally and religiously acceptable.

2. Adoption in English law severs lineage and enables secrecy

The difficulties facing Muslim families who might otherwise consider adoption cannot be understood without reference to the structural features of English adoption law. Adoption in England is not simply a matter of providing a stable home: it is legally constituted as a complete break from the child’s birth family, accompanied by the substitution of a new legal identity and by a legal framework in which secrecy has long been embedded and remains structurally enabled.Footnote ⁴⁰ These features have been questioned within children’s rights discourse for decades,Footnote ⁴¹ yet they take on particular significance in relation to Muslim children, for whom the preservation of lineage ( nasab ) is a religious obligation.Footnote ⁴² What appears in English law as a system of protection and permanence is experienced in Islamic legal terms as the denial of identity, the obliteration of lineage, and the concealment of truth.

These structural features are given concrete legal form through the effects of an adoption order. An adoption order extinguishes the legal relationship between the child and their birth family and establishes a new legal family with the adopters. The Adoption and Children Act 2002 (ACA 2002), building on earlier legislation, sets out the full legal consequences of this reconfiguration: parental responsibility is transferred entirely to the adoptive parents, birth parents lose all legal rights, and the child acquires a new legal status as if born to the adopters.Footnote ⁴³ The process typically includes the renaming of the child, with the adopter’s surname replacing that of the birth family.Footnote ⁴⁴ The symbolic and legal significance of renaming should not be underestimated. As the adoption literature has long recognised, English adoption law is distinctive in the extent to which it reconstitutes legal parenthood, identity, and family membership through a single judicial act.Footnote ⁴⁵ In Islamic thought, by contrast, preserving a child’s lineage through their family name is a moral and religious obligation, grounded in Qur’anic injunction: ‘Call them by [the names of] their fathers; that is more just in the sight of God.’Footnote ⁴⁶ Adoption as practised in English law therefore sits in tension with a core principle of Islamic law.Footnote ⁴⁷ For Muslim children, and for Muslim families in England contemplating adoption, the legal erasure of lineage is experienced as a profound interference with identity and the religious obligation to preserve lineage, with consequences that extend beyond the administrative effects of care planning.

The consequences of identity erasure within English adoption law have been extensively examined in children’s rights and family law scholarship, documenting the harm associated with the loss of genetic identity, and the late or accidental discovery of adoptive status.Footnote ⁴⁸ Scholars have repeatedly emphasised that knowledge of origins plays a central role in the formation of personal identity, emotional security, and long-term wellbeing, and that the denial or deferral of this knowledge may generate lasting harm.Footnote ⁴⁹ These concerns are vividly illustrated in Lemn Sissay’s memoir My Name is Why, which recounts the lived experience of growing up unaware of his adoption, losing his birth name, and only later reconstructing his identity through access to social services records.Footnote ⁵⁰ Sissay’s account is a powerful example of how secrecy operates as a legal and administrative device that can become a source of enduring trauma. For Muslim children, the effects of secrecy are compounded by the religious obligation to preserve lineage, such that the denial of origins is experienced as a loss of identity and as a breach of religious duty.Footnote ⁵¹

English adoption law has long grappled with the tension between openness and secrecy. Historically, adoption was conceptualised as a ‘clean break’ from the birth family, with secrecy justified as a protective safeguard intended to promote family cohesion and shield children from stigma. This model was reflected in routine renaming, and delayed or incidental disclosure of adoptive status, and was underpinned by the belief that emotional security required the construction of a single, undivided family identity.Footnote ⁵² Secrecy was defended as integral to the stability and legitimacy of adoptive family life, rather than as a denial of children’s interests in identity or origins.Footnote ⁵³

Any reform of adoption law must confront the long-standing tension between adopters’ interests in family stability and children’s independent rights to identity. Parker distinguishes between rights-based approaches, which treat claims such as the right to know one’s origins as independent moral entitlements, and utility-based approaches, which evaluate legal rules by reference to their perceived consequences for family cohesion.Footnote ⁵⁴ Under the latter, secrecy may be justified where disclosure is thought to risk destabilising adoptive family life, allowing the child’s interest in identity to be treated as contingent to the broader rights of the family. Wallbank’s analysis of donor anonymity illustrates how family law has frequently adopted this utility-based reasoning, subordinating the child’s right to know to broader concerns about family functioning.Footnote ⁵⁵ Relational accounts of family law similarly emphasise that children’s rights are exercised within relationships of care and dependency, and that questions of disclosure are often assessed by reference to their effects on family cohesion.Footnote ⁵⁶ These perspectives remain important, but early disclosure of adoptive status can still be justified within a relational framework where it supports trust and durable family relationships.

The protection of individual identity rights in adoption is also firmly embedded within human rights law.Footnote ⁵⁷ Article 8 of the European Convention on Human Rights recognises knowledge of one’s origins as an essential component of private life. In Gaskin v United Kingdom, the European Court of Human Rights affirmed that access to information about one’s childhood and family background falls within the scope of this protection.Footnote ⁵⁸ Subsequent case law has confirmed that identity claims relating to biological parentage engage Article 8,Footnote ⁵⁹ even while the Court has stopped short of mandating a single model of disclosure, as illustrated by its acceptance of absolute birth secrecy in France.Footnote ⁶⁰ The jurisprudence recognises identity as a protected interest while leaving scope for national legal systems to determine how openness is secured in practice.

The decision in Gaskin prompted the enactment of the Access to Personal Files (Social Services) Regulations 1989Footnote ⁶¹ in England, enabling adoptees to access their care records, a position subsequently affirmed in the ACA 2002 and the Children and Families Act 2014.Footnote ⁶² Schedule 1 to the ACA 2002 requires the Registrar General to maintain an Adopted Children Register containing the particulars of adoptions authorised by court order. As a consequence of these legislative developments, adoption in England is more open in principle than under earlier legal regimes. In practice, however, access to information remains contingent upon adoptees being informed that they are adopted.Footnote ⁶³ The only information available from the Adopted Children Register is a certificated copy of an entry, equivalent to a birth certificate for an adopted person. An entry on the Register contains only adoptive details and does not include information relating to the corresponding birth entry. Moreover, on making an adoption order, the court has the power to direct that details recorded in the Adopted Children Register should not be disclosed without leave of the court.Footnote ⁶⁴ The adoptee’s right to ascertain information is therefore not absolute, as confirmed in R v Registrar-General, ex p Smith. Footnote ⁶⁵ There are also circumstances in which access to records may be refused at the discretion of decision-makers under section 60(3) of the ACA 2002, which permits an adoption agency to apply for a non-disclosure order. Policy guidance explains:

In English law, a child’s interest in access to information about their origins may, in certain cases, come into tension with a birth parent’s interest in maintaining confidentiality, for example, where a mother who has relinquished a child for adoption does not wish her current family to become aware. Whilst such situations do occur, they do not reflect a general legal entitlement to conceal identity. As confirmed by the Court of Appeal in Re A, B and C (Adoption: Notification of Fathers and Relatives),Footnote ⁶⁷ notification of fathers and wider family members will ordinarily be required, subject only to carefully circumscribed exceptions, and English law does not recognise a general right to an anonymous birth. When these interests come into conflict, adopted children, who depend on the goodwill of authorities or their adoptive parents to know about their origins, are said to suffer discriminationFootnote ⁶⁸ by comparison to children who are not adopted. The UN Committee on the Rights of the Child has repeatedly emphasised, including in its Day of General Discussion on children’s rights and its Alternative Care Outcome Report 2021, that states should develop policies to protect children’s rights to preserve and restore their identity and to ensure access to care records.Footnote ⁶⁹ In England, while an adopted person may seek information about their origins in adulthood if and when aware of their adoptive status, there remains no clear legal entitlement to be informed of that status during childhood. This structural gap highlights a persistent weakness within the English framework: identity rights are formally recognised, yet their effective enjoyment depends on disclosure that the law does not require.

Other societal developments in England have led to a more open approach to adoption than under earlier legal regimes, in which children were frequently unaware of their origins. One contributing factor is the changing profile of children adopted from care. Children adopted today are, on average, older than in previous decades and may therefore retain memories of earlier family relationships.Footnote ⁷⁰ Relatedly, the adoption of babies has become rare: while 12,641 baby adoptions were recorded in 1968, this fell to just 190 in 2021, representing 4.3% of all adoptions.Footnote ⁷¹ This decline reflects broader structural changes in child welfare and family policy over time, including the fact that adoption in England now occurs predominantly as an outcome of public law care proceedings, following state intervention where children are removed from their families due to welfare concerns, rather than through private infant relinquishment.Footnote ⁷² Accordingly, the vast majority of adoptions in England now involve children who have entered the local authority care system. In 2019, approximately 71% of adoptions were from care, compared with fewer than 5% in the 1950s. As a result, adopted children are more likely to have an awareness of their adoptive status, either through prior involvement with social services or through continuing connections to their birth family. While direct contact with birth parents often ends upon adoption, post-adoption contact in England commonly continues through ‘letterbox contact’ arrangements, typically involving indirect communication once or twice a year. In principle, this model supports a degree of openness and ongoing awareness of biological connections.Footnote ⁷³ However, despite the statutory framework for, and limited judicial support for, post-adoption contact,Footnote ⁷⁴ its operation remains highly contingent. The system relies heavily on the cooperation of adoptive parents,Footnote ⁷⁵ and the courts have been clear that post-adoption contact with the birth family cannot be ‘foisted on adopters’.Footnote ⁷⁶ As a result, the practical significance of openness depends on whether children are informed of their adoption status at all. Without such disclosure, access to contact and information remains fragile, discretionary, and uneven. This limitation underscores the importance of examining whether English law should move beyond facilitation towards clearer expectations of early disclosure, a question taken up in Section 3.

3. Identity, secrecy, and early disclosure in English adoption law

If Muslim families are to be enabled to adopt, and if the rights of all adopted children are to be adequately secured, reform of English adoption law must confront its entrenched tolerance of secrecy. A particularly effective and principled response would be the introduction of a clear legal duty requiring that children be informed of their adoptive status at an early stage of childhood, before the age of seven. Such a duty would address concerns about concealment and legitimacy while remaining compatible with the stability of adoptive family life.

Early disclosure is significant because it demonstrates that adoption law can be structured around openness, with secrecy displaced through legislative design. Comparative European adoption law illustrates this point, with at least one jurisdiction imposing a duty on adoptive parents to inform children of their adopted status during early childhood.Footnote ⁷⁷ Age thresholds around seven reflect a longstanding recognition, rooted in child development research and older European legal traditions, that children at this stage possess sufficient cognitive and emotional capacity to integrate such knowledge into their developing sense of self.Footnote ⁷⁸ Early disclosure avoids the destabilising effects associated with late or accidental discovery, which are well documented to undermine trust and cause psychological harm.Footnote ⁷⁹ This approach is consistent with international children’s rights standards, particularly Articles 7 and 8 of the UNCRC, which emphasise the right to know and preserve identity, including family relations. It also addresses concerns within Islamic legal thought, where objections to adoption centre on the concealment of lineage ( nasab ).Footnote ⁸⁰ Early disclosure therefore gives legal form to a child-centred to identity and trust within adoptive family life.

The case for early disclosure extends beyond its compatibility with religious concerns. It addresses long-recognised problems affecting adopted children generally. Existing research affirms that late discovery of adoptive status can generate feelings of betrayal, and a loss of trust,Footnote ⁸¹ undermining the stability that adoption is intended to secure.Footnote ⁸² Early disclosure therefore strengthens the adoption framework for all children, not only those from Muslim families. A fixed statutory age may raise concerns, particularly given variations in children’s emotional readiness and the risk of premature disclosure without appropriate support. These concerns are important, but they that any legal duty should be accompanied by clear professional guidance. Where disclosure is left entirely to adopters, some children are never told at all. A statutory requirement, implemented within the local authority’s existing post-adoption role, could bring greater consistency to practice and support adoptive family relationships without destabilising them.

Notably, this approach is compatible with established positions within Islamic legal frameworks governing long-term care, where the preservation of lineage and openness about a child’s origins are treated as central principles. This position is articulated in Canadian scholarship, where Kutty argues that adoption is permitted in Islamic law provided that: (i) adoptive parents share the child’s religion; (ii) local family-based care options are exhausted; and (iii) the child’s lineage and biological origins are not concealed.Footnote ⁸³ Similar views have been expressed by a religious scholar in the UK, who asserts that adoption as practised in Western legal systems can be compatible with Islamic principles where lineage is preserved and transparency maintained.Footnote ⁸⁴ The positions taken by scholars in the West represent an important theological opening for Muslims in the UK, but they have not translated into increased adoption rates. For some families, reluctance to adopt may stem from unease about relying on diasporic scholarly opinion, particularly where greater normative weight is attached to legal rules articulated within Islamic law jurisdictions themselves. In such cases, adoption-related practices embedded in legislation and applied by courts operating within recognised Islamic legal frameworks assume particular significance.Footnote ⁸⁵ This underexamined dynamic, is central to the paper’s contribution because evolving adoption frameworks within Islamic law countries offer examples of how permanence can be reconciled with lineage and openness in ways that are authoritatively recognised within Islamic legal frameworks, and can therefore carry normative weight for Muslim families in the UK.The next section therefore examines recent legal developments across Islamic law jurisdictions and considers their relevance to the permanence needs of looked after Muslim children in England.

4. Legitimacy and reform: adoption developments in Muslim-majority jurisdictions

Whilst the system of kafālah, like Islamic law more broadly, is centuries old, recent legal developments across a number of Muslim majority jurisdictions reveal an underexamined shift in thinking on adoption and alternative care. Legislators and courts in several Islamic law countries have begun to re-examine existing frameworks in response to contemporary child welfare challenges, including the growing number of children requiring permanent care as a result of armed conflict, forced displacement, political instability, poverty, and family breakdown. These developments merit close examination, because they demonstrate how concerns about lineage and identity are being addressed from within Islamic legal traditions themselves. Changes of this kind are often little known outside the jurisdictions in which they occur and remain largely invisible within English adoption scholarship. For Muslim families living in England, however, these developments are of particular significance. Where reluctance to adopt is grounded in concerns about religious legitimacy, awareness that Islamic law jurisdictions themselves are adapting adoption-related practices can provide reassurance. Although such reforms do not operate as binding religious authority, carry persuasive weight as state-endorsed interpretations of Islamic legal principles, particularly in hybrid legal systems where civil law interacts with Islamic law. They signal that adoption-like arrangements can be compatible with those principles where lineage and identity are preserved, thereby reducing the perceived risk of religious non-compliance for some families.

In responding to the growing need for alternative care, a number of Islamic law countries have revisited kafālah and reframed aspects of their domestic legislation through established internal legal concepts. Islamic law jurisdictions are diverse, and each determines how classical principles are incorporated into contemporary law. Doctrines such as necessity (ḍarūra) and public interest (maṣlaḥa) provide recognised principles for contextual reasoning, allowing legislators and courts to reassess the application of historic rules where their operation risks producing hardship for children.Footnote ⁸⁶ In scrutinising the effects of traditional kafālah arrangements, some jurisdictions have sought to mitigate outcomes viewed as unduly restrictive or detrimental to children’s welfare, particularly in situations where children lack parental or extended family care. In certain cases, this has resulted in the recognition of adoption-like arrangements, provided that the child’s biological lineage is not concealed and remains accessible to the child.

These reforms have been implemented through distinct legal routes across jurisdictions. Tunisia, for example, permits adoption as it is practised in the UK, permitting the child’s name change and entitlement to inheritance as a natural child.Footnote ⁸⁷ Though Turkey is regarded as a Muslim-majority state, religion does not form part of its legal system, and so there is no Islamic law objection to adoption in its legislation.Footnote ⁸⁸ Algeria now allows a form of quasi-adoption with a permitted change of the child’s name. In countries such as Malaysia and Indonesia, legal regulation permits adoptions through informal arrangements.Footnote ⁸⁹ Adoption is permitted in Indonesia, with a requirement the adoptive parents should explain to the child his or her origins concerning the child’s evolving capacity.Footnote ⁹⁰ Somalian legislation allows for adoption so long as the child’s birth name (where known) is retainedFootnote ⁹¹ and in Djibouti, a new Civil Code was adopted in 2018 which includes key provisions akin to adoption. The law in many other Islamic law states is silent on the topic of adoption. Where adoption is not explicitly prohibited in legislation, adoptions are reported to occur, such as in Pakistan.Footnote ⁹² In contrast, there are other states, where adoption is prohibited within legislation, such as in Egypt, but there is evidence that adoption placements are sanctioned by the courts.Footnote ⁹³

The jurisdictional variation itself reveals that debates about adoption in Islamic law countries involve a cluster of interrelated concerns, with the child’s name and lineage among the most sensitive. Prioritising and unpicking these issues has resulted in further debate and legal development, with legislators in some countries re-examining the rules where there is political appetite for reform. Legal developments have included changes addressing the question of the child’s name. The name by which the child is recognised after joining the new family continues to be an important matter. This is because, in the patrilineal and patriarchal system in many Islamic law countries, names consist of four parts: the given name followed by the father’s name, the paternal grandfather’s name, and then the paternal family name. Family names in Arabic also have suffixes or prefixes referring to the ‘house of’ or ‘tribe of’, underscoring how the child’s name is embedded with their identity.Footnote ⁹⁴

Generally, concern about changing the child’s name would only be relevant in those cases where the child’s parentage is known, and of course, is irrelevant in those cases where the child’s parents are unknown and the child’s identity cannot be verified, such as in the case of abandoned and displaced children. Previously, such children were given fictitious family names; however, this practice was recognised as increasing the risk of stigmatisation, such as in cases where children were born outside of marriage. As a result, a more nuanced approach has developed, leading to decisions for children to take the name of their new family, prioritising the child’s wellbeing.Footnote ⁹⁵ Legislators in Algeria, for example, highlight that allowing the child to take on the name of the new caretaking family is better for the child than being given a fictitious name.Footnote ⁹⁶ Similarly, in Morocco and Egypt, a child can be awarded the name of the caretaking parents if the child is orphaned or a child born to unidentified parents.Footnote ⁹⁷ This possibility of assigning the name of the child to the name of the new family brings the arrangement closer to adoption, and as one commentator observes, the practice is ‘disguised adoption’ under kafālah.Footnote ⁹⁸

The emphasis on name and identity resonates directly with debates on lineage and renaming in English law. Whilst it appears the permissibility to change the child’s name only applies to children born to an unknown father in Islamic law countries, legal developments in Iranian law permit a change of the child’s name even where the child’s biological origins are known.Footnote ⁹⁹ The child may take on the new family name, with the condition, similar to the English law position, that the child’s original name must be recorded by the relevant state authorities. Iran has reformed its law and permitted adoption through what it terms ‘sarparasti’, technically a new concept, neither kafālah nor adoption, which now enables the child to take the caretaking parents’ family name.Footnote ¹⁰⁰ Iraqi legislation also now facilitates the change of the child’s name to that of the new family and goes a step further, requiring the new parents to award an inheritance share to the child,Footnote ¹⁰¹ which is observed to be a distinction from the traditional position of kafālah guardianship, where no inheritance rights exist for the child joining the family.Footnote ¹⁰² Research highlights that court in Iraq have specifically referred to the situations as adoption, rather than kafālah guardianship, and referred to the child as the adopted, not kafālah, child.Footnote ¹⁰³

There is a clear shift in thinking on adoption in Islamic law countries, with legislators developing the law cautiously in response to the risk of opposition from conservative societies to the re-interpretation of historic understandings. The developments remain piecemeal, and do not derive directly from primary sources of Islamic law, which may explain why denominational differences are difficult to identify, and why clear gender distinctions have yet to emerge. Ali also notes this in her examination of how Islamic law countries respond to the sensitive issue of children born outside of wedlock.Footnote ¹⁰⁴ In some Islamic law countries, forms of quasi-adoptions have been ‘disguised’ through the use of new terminology – such as the term sarparastī used in Iran, ḍamm in Iraq – and as Yassari points out, the corresponding regulations have been ‘hidden’ in separate or unrelated legislative acts, diluting the impression of full accommodation of adoption within those legal systems.Footnote ¹⁰⁵ The effect of the developments is to award the new family all relevant rights and duties including full parental care and authority (ie custody and guardianship), without state interference, equivalent to adoption. The new family must bequeath to the child up to one-third of their property before the child moves into the new home and, most significantly, the legislation sets out the right of the child to take the new family’s name.Footnote ¹⁰⁶ Equally, unlike the position with kafālah, the statutes are silent on the automatic termination on adulthood of the legal relationship between the child and new parents, and so seem to create equivalents to adoption.Footnote ¹⁰⁷

Developments are also visible in Islamic law countries where no legislative provision expressly governins adoption, and courts interpret existing provisions in ways that extend kafālah towards adoption. In Pakistan, for example, adoption takes place within the framework of the custody legislation, the Guardians and Wards Act 1890. Generally, children in orphanages may be handed over to prospective carers, who can adopt a child in Pakistan where the procedures and eligibility requirements of both countries are satisfied.Footnote ¹⁰⁸ Since Pakistan is not a signatory to the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Adoption Convention), the UK and Canada do not recognise adoptions from Pakistan under the Hague Intercountry Adoption Scheme. They take the stance that adoption is prohibited in Pakistan as it is an Islamic law country and not a signatory to the Convention, and so recognition of adoptions from Pakistan would violate obligations under the Adoption Convention.Footnote ¹⁰⁹ The lack of formal recognition of adoptions taking place in countries such as Pakistan creates obstacles for childrenadopted from overseas. Pakistan, like many other Islamic law states, lacks the political support to reform legislation deriving from religious sources where reform is likely to provoke opposition from conservative communities within those states. Informal adoption arrangements therefore continue where adoptions are sanctioned by the courts. Where legislation is enacted with greater confidence, the resulting framework often amounts to adoption under a different name.

Differences between Islamic law countries reflect varying political aspirations and priorities. Some states have responded to the increasing need for alternative care of children through religious decrees, including fatwas that provide legal interpretations of religious matters such as the one issued in Saudi Arabia.Footnote ¹¹⁰ The decree makes it incumbent on the new family to inform the child of their origins, though the ruling leaves the decision of when it is appropriate to do so to the parents, as is the case in England. Conversely, other states such as Iran and Iraq take the view that a clear ruling on the prohibition of adoption of children cannot be given with certainty, as the historic practice of adoption is said not to relate to children, but to have ‘related to adults and generally occurred in the context of alliances building for the welfare of the clan and tribe, without being framed as a measure aimed at a minor’s protection’.Footnote ¹¹¹ Whichever view is taken, the research indicates that legal change is visible, children are currently being placed in what are effectively adoption arrangements, whether or not states are willing to take the political risk of formalising the arrangements in legislation.

The legislative developments in Islamic law countries challenge the common assumption that Islamic law imposes an indiscriminate prohibition on adoption. In particular, they reveal that Islamic law accommodates adoption-like care where a child’s parentage is unknown. They also reflect a willingness, in a number of states, to permit arrangements approaching adoption even where parentage is known, provided that the child’s birth identity is formally recorded and preserved. These developments demonstrate that concerns about lineage and identity are being addressed within Islamic legal systems themselves. This comparative account clarifies the normative conditions under which adoption may be understood as religiously permissible and explains why those conditions may affect the permanence options available to Muslim children in England. For Muslim families who treat the preservation of lineage and the avoidance of concealment as central to religious permissibility, these developments can help to dispel the assumption that adoption is inherently forbidden. They therefore form part of the normative framework in which Muslim families assess adoption under English law. The following section examines the implications of these comparative developments for English adoption law.

5. From minority concern to systemic reform: implications for English adoption law

This section draws together the earlier discussion of identity and permanence outcomes within the care system. It situates the experiences of Muslim children within the wider structural difficulties of English adoption law and examines how disclosure of adoptive status bears on permanence outcomes more generally.

The majority of adoptions that take place in the UK are through the ‘care system’, where children have been removed from their birth family by the state because they are suffering, or are likely to suffer, significant harm attributable to the care given, or likely to be given to them, not being what it would be reasonable to expect a parent to provide, or because the child is beyond parental control.Footnote ¹¹² While English law also permits other forms of adoption, including step-parent adoption and intercountry adoption, these account for a relatively small proportion of cases and do not alter the centrality of care-system adoption as the primary route through which children are placed for adoption. Whilst the system is intended to respond to and prioritise the child’s welfare, it is criticised for being ‘at a crisis point’ by the Independent Review undertaken in 2022, which asserts that ‘what we have currently is a system increasingly skewed to crisis intervention, with outcomes for children that continue to be unacceptably poor and costs that continue to rise. For these reasons, a radical reset is now unavoidable’.Footnote ¹¹³ The review highlights that the lack of accessible services results in a situation where rather than offering families support to address the risks, children are removed to emergency foster care. The 2020 Report of the Children’s Commissioners (of the UK of Great Britain and Northern Ireland) to the UN Committee on the Rights of the Child suggests there has been little progress in the development of children’s rights in this area.Footnote ¹¹⁴ The report observes that looked-after children are affected by poor system design across the UK, resulting in instability and uncertainty, inadequate care standards, and isolation.Footnote ¹¹⁵ The consequences of this instability for children who remain in care are well documented. Children who do not leave local authority care through returning home, adoption, or a special guardianship, remain in care until they reach adulthood, and unfortunately, known outcomes for these children are inadequate. For example, the data confirms these children can be subject to three or more placements a year, affecting the school they can attend and consequently educational achievements. More than half (52%) have a criminal conviction by age 24, a staggering statistic when compared with young people who have not been in care, which is comparatively lower at 13%. Looked-after children also enter the justice system earlier than children who have not been in care. Of the children in care who received a custodial sentence for committing a criminal offence, 18% were aged below 16 when imprisoned for the first time, a figure that is 4.5 times higher than for those children who have never been in care (at 4%).Footnote ¹¹⁶

The research literature consistently documents the harms associated with prolonged placement instability,Footnote ¹¹⁷ and it is in this context that adoption is widely regarded as the preferred permanence outcome for children who cannot return home. For children cared for by the state, adoption offers the prospect of long-term family continuity and has been associated with improved developmental and psychological outcomes, particularly for those who have experienced abuse or neglect.Footnote ¹¹⁸ However, acknowledgement of these benefits leaves unresolved the normative concerns raised by English adoption policy. The legal framework governing adoption in England effects a complete and effectively irreversible severance of the child’s legal relationship with the birth family, in that it is intended to be final in all but exceptional circumstances, a position recently reaffirmed by the Supreme Court in Re X and Y (Children: Adoption Order: Setting Aside),Footnote ¹¹⁹ which confirmed that a valid adoption order cannot be set aside on welfare grounds alone. The legal effect of the adoption order is therefore a reconfiguration of the child’s identity, typically accompanied by the renaming of the child. For some adoptees, these features have been associated with long-term harm, and have been criticised as constituting a form of unequal and discriminatory treatment, particularly where identity and relational continuity carry heightened significance.Footnote ¹²⁰ My proposal to require that children be informed of their adoptive status before the age of seven, with the support and oversight of the local authority, would not resolve all of the systemic problems associated with adoption practice in England and is not advanced as a comprehensive solution. It would, however, address a specific and recurring structural weakness, namely the continued tolerance of secrecy in matters of identity and origin. This is a feature of adoption practice that has been shown to cause harm to adopted children more generally and carries particular significance for Muslim families, for whom transparency around lineage and identity is central to assessments of religious permissibility. Framing early disclosure as a supported and supervised process, instead of a private parental choice, aligns more closely with adoption models that can be engaged with by Muslim families while remaining consistent with the welfare-based foundations of English adoption law.

Islamic law principles on the rights of children requiring alternative care are compatible with English law and policy, and so can offer reassurance for Muslim families that adoption is permitted within Islamic legal frameworks, and that adoption can be engaged with under English law. Children requiring alternative care are being adopted across Islamic law countries, and Muslim children in the UK care system should be equally eligible. Recent guidance on adoption for Muslims published in the UK affirms that scholars in the UK uphold that adoption is permitted by Muslims, on the condition that adopted children are aware that they are biologically related to another family.Footnote ¹²¹

The increasingly open approach to adoption in England means that children are more likely to be aware of their adoption, especially as most are not adopted from birth. Adopted children are also likely to be informed of their adoption if given the opportunity to engage in letterbox contact. Moreover, adoption and birth records become accessible once they reach adulthood. Thus, the main point of contention in Islamic law, and therefore for potential Muslim adopters, is the issue of the child’s name. This concern could also be addressed, as local authority guidance emphasises that an adopted child’s first name should be retained unless there are compelling reasons to change it, such as:

If the local authority can specify that a child’s first name should be retained, there is no reason why the same principle could not extend to the child’s surname, provided that retaining it does not give rise to any safeguarding concerns. Indeed, changing the child’s name for safeguarding purposes is something religious scholars have confirmed is permissible in Islamic law. Islamic law guidance, developed in the UK, explains that:

It is open to the adoptive family to change the child’s name as part of the adoption process, through the adoption order, or post-adoption.Footnote ¹²⁴ Adopters may choose to do so for several reasons, including to help the child feels a part of the family and is not singled out from other family members. Where retention of the child's birth name poses no safeguarding risk, Islamic law requires the child's name to be preserved so the child remains aware of their birth identity and lineage. Where safeguarding concerns arise, legal developments across many Muslim states indicate that preserving lineage does not require retention of the child’s original name. Lineage can also be preserved through having open discussion with the adopted child about their origins, and original name, enabling the child to understand their biological identity as they mature. The proposed requirement for the child to be made aware of the adoption by age seven,would address this concern. Prospective Muslim adopters may also take reassurance from the fact that in English law, reference to the child’s birth parents in the child’s birth certificate held by the Registrar ensures that the child’s genetic ties are not lost, and ‘no real lineal relationship is established between the adoptive parents and the adopted child’.Footnote ¹²⁵