The European Court of Human Rights (ECtHR) has held that Poland violated a child's rights under Articles 8 and 14 of the European Convention on Human Rights by refusing to register a foreign birth certificate naming two women as the child's parents, while declaring a separate, similar application inadmissible due to the absence of any practical impact on the applicants' lives.
The joined cases concerned two same-sex couples living in the United Kingdom who sought to have their children's British birth certificates transcribed into the Polish civil register. In each case, the birth certificates recorded the birth mother and her female partner as the child's parents.
The Polish authorities refused both applications on the basis that Polish law recognises a child's mother as the woman who gives birth and the father as a man, concluding that registering a birth certificate identifying two women as parents would be contrary to the fundamental principles of the Polish legal order. The refusals were ultimately upheld by the Supreme Administrative Court.
The ECtHR adopted different approaches to the two applications.
In A.D.-K. and Others, the Court declared the application inadmissible. It observed that the family had always lived in the United Kingdom, where the parent-child relationship was fully recognised, and had no immediate plans to relocate to Poland. The child had not applied for confirmation of Polish citizenship and had not been deprived of any existing legal relationship with her parents. As the refusal to register the birth certificate had no tangible consequences for the family's daily life or legal status, the Court concluded that the interference was insufficient to engage Article 8 of the Convention.
By contrast, in A.P. and R.P., the Court found Article 8 applicable because the child had acquired Polish citizenship at birth through his Polish mother. The refusal to register his birth certificate prevented him from obtaining Polish identity documents, a passport and a personal identification number, placing him in a position of legal uncertainty.
The Court accepted that the family's day-to-day family life in the United Kingdom had not been significantly affected and therefore found no violation of Article 8 in respect of family life. It also found no interference with the birth mother's private life.
However, the Court reached a different conclusion in relation to the child's private life. It emphasised that the child identified as Polish, spoke Polish at home and regularly spent time in Poland. The inability to register his birth certificate and obtain official identity documents affected a fundamental aspect of his identity and civil status. The domestic authorities had failed to conduct a meaningful assessment of the child's best interests, instead relying solely on the incompatibility of the foreign birth certificate with the Polish registration system.
The Court held that Poland had failed to provide any effective mechanism for recognising the legal relationship between the child and his birth mother for the purposes of Polish civil registration. This placed the child in a state of legal uncertainty incompatible with his right to respect for private life under Article 8.
The Court also found a violation of Article 14, taken together with Article 8, in respect of the child's private life. It held that the refusal to register the birth certificate was based decisively on the fact that the child had been born into a same-sex family and on his parents' sexual orientation. As the authorities had undertaken no meaningful assessment of the child's interests or the practical consequences of their decision, the differential treatment amounted to unjustified discrimination.
The Court awarded the child €5,000 in respect of non-pecuniary damage.