Court name: Committee on the Rights of the Child
State: Spain
Date of decision:

Eight children of Moroccan nationality born and raised in Melilla, a Spanish enclave city in Morocco, to migrant parents, who had irregular administrative status submitted four different communications to the Committee on the Rights of the Child. Even though the children had the right to attend public school by law, they were unable to access public education in Melilla in practice, because they were requested to provide documents that were difficult or impossible to obtain given their irregular administrative status. The Committee on the Rights of the Child found that Spain had violated the applicants’ right to non-discrimination and to education under Article 2 of the Convention on the Rights of the Child, read in conjunction with Article 28, and Article 6 of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.

Court name: Cour de cassation
State: France
Date of decision:

The case concerns the challenge before the French Court of Cassation (Cour de Cassation) of a refusal by the Court of Appeal of Rennes to register on the French civil registries the birth certificate of a child who was born in Canada as a result of a surrogacy procedure, and the recognition of parental relationship between that child and one of the applicants. In this case, both parents were a couple of men. The Cour de Cassation ruled in favour of the applicants and ordered the registration of the child's birth certificate on the French registries, designating both parents as fathers of the child.

Court name: European Court of Human Rights
State: Greece
Date of decision:

The applicant is a stateless Palestinian and unaccompanied minor who was granted asylum in Greece in 2016 together with his father and slibings. Due to neglect by the father, the applicant and his siblings were placed in care and the prosecutor decided it was in their best intersts to return to the Occupied Palestinian Territory to reunite them with their mother. The application concerns the decision to return him to the Occupied Palestinian Territory, which the children were opposed to, the reception conditions in Greece, and the failure to appoint a guardian. The Court decided to strike the application as inadmissible as the applicant was no longer at risk of being returned to the Occupied Palestinian Territory when the decision was revoked by the authorities.

Court name: Committee on the Rights of the Child
State: Finland
Date of decision:
Key aspects: Protection

This communication to the Committee on the Rights of the Child was submitted by nationals of Finland on behalf of the applicants’ own child relatives and on behalf of 33 other children who are held in the Hawl camp in the north-east of Syria. The children's parents are allegedly associated with the Islamic State. The applicants claim that Finland’s refusal to assist or repatriate these children despite knowing they were at risk of irreparable harm violates Articles 2, 6, 19, 20, 24, 27, 28, 37, 39, and 40 of the Convention on the Rights of the Child as well as Article 7 of the Optional Protocol on the involvement of children in armed conflict. The Committee finds the communication filed on behalf of the applicants’ own child relatives admissible and that Finland violated Articles 6(1) and 37 (a) of the Convention on the Rights of the Child.

Court name: European Court of Human Rights
State: France
Date of decision:

The case concerns the refusal to grant legal recognition in France to parent-child relationships that had been legally established in the United States for a child born as a result of surrogacy arrangement. The French authorities refused to transcribe the birth certificate of the child into the French civil status registry on the grounds that it would be contrary to public order. The three applicants complained that the refusal to acknowledge the filiation of the parents and child applicant under French law violated Article 8 ECHR. The European Court of Human Rights found that France violated the child's right to respect for her private life in breach of Article 8 ECHR.

Court name: Court of Justice of the European Union
Date of decision:

The authorities refused to examine the applications of Dutch nationals, with dual nationality of a non-EU country, for renewal of their Dutch passports. The decision was based on the fact that they had lost their Dutch nationality because they possessed a foreign nationality and had their principal residence for an uninterrupted period of 10 years outside the Netherlands and the EU. The CJEU found that Member States may lay down rules regulating the loss of their nationality and, as a result, the loss of EU citizenship, where the genuine link between the person and that State is durably interrupted. Nevertheless, the loss of nationality must respect the principle of proportionality, which requires an individual assessment of the consequences of that loss for the person from the point of view of EU law.

Court name: European Court of Human Rights
State: France
Date of decision:
Key aspects: Detention, Protection

This case concerns the repatriation of the applicants’ daughters and grandchildren, French nationals, who were being held in camps in north-eastern Syria after leaving France to join Daesh/ISIS. The applicants alleged that the refusal by France to repatriate their kin exposed those family members to inhuman and degrading treatment prohibited by Article 3 of the Convention and breached their right to enter the territory of the State of which they were nationals as guaranteed by Article 3(2) of Protocol No. 4. The Court dismissed the complaint under Article 3 but found the complaint under Article 3(2) of Protocol No. 4 admissible.

Court name: Court of Appeals of Gipuzkoa
State: Spain
Date of decision:

A 7-year-old child arrived in Spain irregularly by boat in April 2018. She was born in Morocco to a Cameroonian mother while they were on a journey to Europe, and due to the circumstances the child’s birth was not registered. Her mother contacted the Cameroonian and Moroccan embassies in Spain, but she never succeeded in registering her birth nor recognising her Cameroonian nor Moroccan nationality. The child was thus stateless, as declared in the first instance judgment and confirmed on appeal. The Provincial Court of Guipúzcoa held that the mother had made a genuine effort to remove all bureaucratic obstacles to have the child’s Cameroonian nationality recognised. The Court held that the safeguard established in the Spanish Civil Code to prevent statelessness of children born in Spain should be applied broadly and by analogy, as this is the only interpretation in compliance with international treaties to which Spain is a party and with the principle of the best interests of the child. Therefore it found that there was a violation of the child's fundamental rights and declared that the child held Spanish nationality and agreed to order the Central Civil Registry to register the birth of the child. 

Court name: Court of Justice of the European Union (CJEU)
State: Poland
Date of decision:

The case concerns the refusal by the Head of the Civil Registry Office of Kraków (Poland) to transcribe into the Polish register of civil status the birth certificate of the daughter of K.S. and her wife S.V.D., issued by Spanish authorities. This lack of registration hindered the issuance of a passport, which impacted the child’s freedom of movement.

The Court interpreted Articles 20 and 21 of the TFEU, to mean that the Member State of which a child of a same-sex couple is a national (i) is obliged to issue to that child an identity card or a passport without requiring the prior transcription of a birth certificate of that child into the national register of civil status, and (ii) is obliged to recognise the document from another Member State that permits the child to exercise, without impediment, the right to move and reside freely within the territory of the Member States.

Court name: Court of Justice of the European Union
State:
Date of decision:

Bulgarian authorities refused to issue a birth certificate to the daughter of a Bulgarian mother and a British mother, who was born in Spain and issued a Spanish birth certificate with the names of both mothers, on the basis that it could only recognise parents of different genders. The Court found that where a birth certificate issued in another Member State designates parents of the same sex, the Member State of which the child is a national is required to issue an identity card or a passport to the child, without requiring a birth certificate to be drawn up beforehand by its national authorities. It also held that the Bulgarian authorities, and any other Member State, must recognise the parent-child relationship as established by the Spanish authorities for the purposes of permitting the exercise of the child’s right to move and reside freely within the EU, and any documents that would allow such travel.

 

Court name: Committee on the Rights of the Child (CRC)
Date of decision:

The communication concerned M.K.A.H., a stateless child, and whether Switzerland violated his rights under Articles 2 (2), 6, 7, 16, 22, 24, 27, 28, 29, 37 and 39 UNCRC when it decided to return him and his mother to Bulgaria, pursuant to the agreement between Switzerland and Bulgaria relating to the readmission of migrants in irregular situations, where they had previously obtained subsidiary protection.

Some of the findings of the Committee were that (i) Switzerland had not respected the best interests of the child nor heard him at the time of hearing the asylum request; (ii) the child ran a real risk of being subject to inhuman and degrading treatment in case of a return to Bulgaria; (iii) Switzerland had not sought to take the necessary measures to verify whether the child would be able to acquire a nationality in Bulgaria. The Committee also found that Article 7 UNCRC implicates that States must take the necessary positive actions to implement the right to acquire a nationality.

Court name: High Court
State: Ireland
Date of decision:

The applicant is a child who was born in Ireland to a Cameroonian mother and a Ghanaian father, it was asserted that the child was stateless. The Refugee Appeal Tribunal denied the child applicant refugee status and the applicant requested a judicial review of the tribunal’s decision. The application centred around the tribunals alleged wrongful reliance on the applicant’s right to acquire citizenship in Ghana and Cameroon. The application for judicial review was ultimately unsuccessful.

Court name: Supreme Administrative Court
State: Poland
Date of decision:

The judgment is an answer to a general legal question as to whether Polish law allows the incorporation of foreign birth certificates where parents are of the same sex. The question was prompted by the authorities' refusal to transcribe into Polish law the foreign birth certificate of a child born to two mothers, both of whom are Polish nationals. The applicant argued that since lack of a transcribed birth certificate inhibits her child's access to a Polish passport, it in practice leads to a situation that is identical to statelessness. 

Court name: Supreme Administrative Court
State: Poland
Date of decision:

The applicant was born in the US, and his birth certificate indicated a Polish national as the father, and an unknown surrogate mother as the mother. Polish authorities refused to confirm the applicant acquired Polish nationality at birth as a child of a Polish parent, because the birth certificate is against the Polish public order, in particular the prohibition of surrogacy. The courts ruled in favour of the applicant, stating that confirmation of his Polish nationality on the basis of the birth certificate does not amount to validation of surrogacy.

Court name: Administrative Court of Montenegro
State: Montenegro
Date of decision:

The applicant attempted to obtain Montenegrin nationality for himself and his two minor children through naturalisation. The requests were rejected, as the applicant did not fulfil all the naturalisation requirements. However, with regard to the children, the Court ruled that even though their parent's naturalisation failed, their entitlement to the Montenegrin nationality should be explored on the basis of acquisition at birth, as the children are otherwise stateless, and annulled the part of the administrative decision related to the children on the basis of insufficient reasoning. 

Court name: Council of State of the Netherlands (Raad van State)
Date of decision:

The applicant is the mother of a stateless child born in the Netherlands, who applied for confirmation of Dutch nationality for her son. The application was rejected as the municipality neither considered it established that the child is stateless, nor that he has fulfilled the legal residence requirement. The applicant claimed that denial of confirmation of nationality for her son constitutes violations of article 8 ECHR, article 7 CRC and article 24 ICCPR, but those arguments failed in Court. The Court mentions the plans of the Dutch government to introduce a statelessness determination procedure. 

Court name: Supreme Administrative Court
State: Poland
Date of decision:

The applicant was born abroad to two Polish mothers, and acquired Polish nationality on the basis of at least one of his parents being Polish. However, he was unable to access Polish identity documents, for which a transcription of a foreign birth certificate into the Polish legal order is required - the latter being denied as the concept of two mothers contradicts the fundamental principles of Polish legal order. The Court ruled in favour of the applicant, relying heavily on national and international children's rights norms. 

Court name: Council of State of the Netherlands (Raad van State)
Date of decision:

The case concerns a child born in the Netherlands to an undocumented mother of Chinese origin. The child is registered in the municipal records as having an "unknown" nationality. The mother attempts to register him as "stateless" to strengthen his claim to Dutch citizenship, but cannot meet the high standard of proof set by the municipality for registering statelessness. The Court sides with the municipality in this case, but implies that the legislator ought to establish a statelessness determination procedure in the Netherlands.

Court name: Provincial Administrative Court in Kraków
State: Poland
Date of decision:

The public prosecutor appealed to the Provincial Administrative Court in Kraków (“Court”) against the transcription of A.Z.’s birth certificate by the Head of the Registry Office in Krakow into the Polish Civil Register, claiming that it is contrary to the fundamental principles of the legal order of the Republic of Poland because A.Z.’s birth certificate listed two women as parents. The appeal was dismissed.

The Court stated that due to the large number of states that have ratified the Convention on the Rights of the Child and because many states include similar provisions in their national legislation, legal experts argue that the right of a child to nationality is part of international customary law, therefore everyone should acquire a nationality at birth.

Court name: Constitutional Court of the Republic of Serbia (Ustavni sud Srbije)
State: Serbia
Date of decision:

An initiative was submitted to the Constitutional Court of Serbia to assess the provisions of two by-laws that prevent registration of children in the birth registry immediately after birth, in cases when the children’s parents do not possess personal documents, on the grounds that the by-laws are not in accordance with the provisions of the Serbian Constitution, the Family Law and ratified international conventions which guarantee the right to birth registration and personal name to every child, immediately after birth. The Constitutional Court rejected the initiative, on the grounds that possession of an ID card is legally binding on all citizens of the Republic of Serbia who are over 16 years of age and have permanent residence on the territory of the Republic of Serbia.