A.D.-K. AND OTHERS v. POLAND (European Court of Human Rights)

Communicated on 26 February 2019

FIRST SECTION

Application no.30806/15
A.D.-K.and Others

against Poland
lodged on 16 June 2015

STATEMENT OF FACTS

The first applicant, Ms A. D.-K.and the second applicant, Ms S. D.-K. were both born in 1976. The third applicant, L. D-K, was born in 2011. The first applicant is a Polish national. The second and third applicants are British nationals. They all live in Essex, in the United Kingdom. They are represented before the Court by Ms D. Pudzianowska from the Helsinki Foundation for Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.  Background to the case

The first and second applicants are two women living together in a civil partnership registered in the United Kingdom.

On 19 December 2011 the second applicant gave birth to the third applicant at a London hospital.

The third applicant’s original birth certificate indicates the second applicant as her mother and the first applicant as her parent.

2.  Administrative proceedings in Poland

On 7 August 2012 the first and second applicants applied to the Łódź Civil Status Registry (UrządStanuCywilnego) in order to have the particulars of the third applicant’s birth certificate recorded in Poland (wniosek o transkrypcjęzagranicznegoaktuurodzenia).

On 5 October 2012 the Director of the Łódź Civil Status Registry refused their application. The director confirmed that when registering a foreign birth certificate in Poland in principle an administrative authority would not examine the merits of that certificate. However, it was possible to refuse to transcribe such a certificate if it contravened the basic principles of the Polish legal system.

The director further held that, according to the principles of the Polish legal system, a child’s mother was the woman who gave birth to that child and the child’s father was the mother’s husband, or with respect to children born out of wedlock, a man who had intercourse with the mother no more than 300 and no less than 181 days before the birth of a child.

The fact that the first applicant, a Polish citizen, was registered on the third applicant’s birth certificate as a “parent” was a consequence of her living in the UK in a registered civil partnership with the child’s mother. However, in Poland the legal framework endorsed a conservative family model. Pursuant to Article 18 of the Polish Constitution, marriage was a relationship between a man and a woman. There were no provisions in the Polish legal system which allowed for any registered civil partnership (be it same-sex or opposite sex).

The director also informed the parties that transcription was not obligatory since in Poland it was possible to rely on a foreign birth certificate in any administrative procedures.

The applicants appealed.

On 13 November 2012 the Łódź Governor (WojewodaŁódzki) upheld the first‑instance decision.

The Governor held that it was true that when entering the particulars of a foreign civil status certificate in the Polish Civil Status Register an administrative authority did not need to examine the contents of that certificate. However, it was possible to refuse transcription of a certificate if that certificate contravened the fundamental rules of legal order in Poland (sprzeczna z podstawowymizasadamiporządkuprawnego RP).

The Governor confirmed that the first-instance authority had been right to apply the public policy exception since the foreign birth certificate in question was contrary to the provisions of the Polish Family and Custody Code. The current legal provisions did not allow registration of same‑sex unions or adoption of a child by such a couple. However, the fact that the third applicant’s birth certificate was not registered in Poland did not prevent her from lodging an application for confirmation of her status as a Polish national.

The applicants appealed. They submitted that the Governor’s decision was in breach of the Law on Polish nationality (ustawa o obywatelstwiepolskim). In reply to the Governor’s statement that marriage was a relationship between a man and a woman, they agreed that the argument would have been valid had they asked for registration of the certificate of their civil partnership.

On 14 February 2013 the Łódź Regional Administrative Court dismissed their appeal. The court endorsed the reasoning given by the administrative authorities. It further observed that had the birth certificate in question been registered in the Polish Civil Status Register, the new birth certificate would have indicated a woman’s personal data in the box designated for “father”. Consequently, the authorities had been right to apply the public policy exception. The Polish legal provisions were clear in that respect. A child’s mother was the woman who gave birth to that child and a child’s father, notwithstanding how his paternity was determined, was always a man. Under the legal provisions in force it was not possible to register a woman as a second parent.

The court also found that the parties could lodge an application to have the third applicant’s Polish citizenship confirmed at any time.

The applicants lodged a cassation appeal. They repeated that they had not asked for registration of their civil partnership certificate, as that might indeed have been in breach of fundamental rules of the Polish legal system. They maintained that the refusal to issue a Polish birth certificate to their daughter constituted discrimination on the ground of their sexual orientation. They relied in this regard on the Court’s case-law. Lastly, they submitted that the third applicant’s legal situation was different in Poland and in the UK. In the UK she lived in a full family with two legal parents, while in Poland she had a mother and an unknown father.

On 17 December 2014 the Supreme Administrative Court dismissed their cassation appeal. The court found that if the birth certificate in question had been registered with the Polish Civil Status Registry, the director of the Civil Status Registry would have had to indicate the second applicant as the child’s mother and the first applicant as the child’s father, since the Polish forms did not allow for the use of the formulation “parent”. Consequently, a document indicating a woman as a child’s father would have been in breach of the fundamental rules of the Polish legal order.

B.  Relevant domestic law and practice

Section 73 (1) of the Law on Civil Status Records (prawo o aktachstanucywilnego) of 29 September 1986, as in force at the material time, provided that a foreign civil status certificate may be registered in the Polish Civil Status Register ex officio or on an application by a person concerned.

COMPLAINTS

1.  The third applicant complains under Article 8 of the Convention that the refusal to register her birth certificate in the Polish Civil Status Register has breached her right to private life. She alleges that she remains in a state of uncertainty as regards her right to Polish citizenship and that this refusal has had consequences for her inheritance rights.

2.  The first and second applicants complain under Article 8 of the Convention of a breach of their right to private life, in particular their right to be considered parents.

3.  All applicants complain under Article 8 of the Convention of a breach of their right to family life.

4.  The first and second applicants complain that they have suffered discrimination contrary to Article 14 taken in conjunction with Article 8 of the Convention on grounds of their sexual orientation because of the domestic authorities’ refusal to register their child’s birth certificate in the Polish Civil Status Register.

QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicants’ right to respect for their private and family life? Reference is made to the refusal to register the third applicant’s birth certificate in the Polish Civil Status Register. If so, was the interference justified in accordance with the terms of Article 8 § 2?

2.  Have the first and the second applicants suffered discrimination on grounds of their sexual orientation, contrary to Article 14 of the Convention in conjunction with Article 8? Reference is made to the reasons for refusal given by the domestic authorities.

APPENDIX (anonymity has been granted)

Applicants :

1. A.D.-K. is a Polish national who was born in 1976, lives in Essex.

2. S.D.-K. is a British national who was born in 1976, lives in Essex.

3. L.D.-K. is a British national who was born in 2011, lives in Essex.

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