Communicated on 26 February 2019<\/p>\n
FIRST SECTION<\/p>\n
Application no.30806\/15
\nA.D.-K.and Others<\/p>\n
against Poland
\nlodged on 16 June 2015<\/p>\n
STATEMENT OF FACTS<\/p>\n
The first applicant, Ms A. D.-K.and the second applicant, Ms S. D.-K. were both born in 1976. The third applicant, L.\u00a0D-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.\u00a0Pudzianowska from the Helsinki Foundation for Human Rights.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Background to the case<\/p>\n The first and second applicants are two women living together in a civil partnership registered in the United Kingdom.<\/p>\n On 19 December 2011 the second applicant gave birth to the third applicant at a London hospital.<\/p>\n The third applicant\u2019s original birth certificate indicates the second applicant as her mother and the first applicant as her parent.<\/p>\n 2.\u00a0\u00a0Administrative proceedings in Poland<\/p>\n On 7 August 2012 the first and second applicants applied to the \u0141\u00f3d\u017a Civil Status Registry (Urz\u0105dStanuCywilnego) in order to have the particulars of the third applicant\u2019s birth certificate recorded in Poland (wniosek o transkrypcj\u0119zagranicznegoaktuurodzenia).<\/p>\n On 5 October 2012 the Director of the \u0141\u00f3d\u017a 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.<\/p>\n The director further held that, according to the principles of the Polish legal system, a child\u2019s mother was the woman who gave birth to that child and the child\u2019s father was the mother\u2019s 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.<\/p>\n The fact that the first applicant, a Polish citizen, was registered on the third applicant\u2019s birth certificate as a \u201cparent\u201d was a consequence of her living in the UK in a registered civil partnership with the child\u2019s 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).<\/p>\n 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.<\/p>\n The applicants appealed.<\/p>\n On 13 November 2012 the \u0141\u00f3d\u017a Governor (Wojewoda\u0141\u00f3dzki) upheld the first\u2011instance decision.<\/p>\n 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 podstawowymizasadamiporz\u0105dkuprawnego RP).<\/p>\n 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\u2011sex unions or adoption of a child by such a couple. However, the fact that the third applicant\u2019s birth certificate was not registered in Poland did not prevent her from lodging an application for confirmation of her status as a Polish national.<\/p>\n The applicants appealed. They submitted that the Governor\u2019s decision was in breach of the Law on Polish nationality (ustawa o obywatelstwiepolskim). In reply to the Governor\u2019s 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.<\/p>\n On 14 February 2013 the \u0141\u00f3d\u017a 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\u2019s personal data in the box designated for \u201cfather\u201d. Consequently, the authorities had been right to apply the public policy exception. The Polish legal provisions were clear in that respect. A child\u2019s mother was the woman who gave birth to that child and a child\u2019s 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.<\/p>\n The court also found that the parties could lodge an application to have the third applicant\u2019s Polish citizenship confirmed at any time.<\/p>\n 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\u2019s case-law. Lastly, they submitted that the third applicant\u2019s 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.<\/p>\n 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\u2019s mother and the first applicant as the child\u2019s father, since the Polish forms did not allow for the use of the formulation \u201cparent\u201d. Consequently, a document indicating a woman as a child\u2019s father would have been in breach of the fundamental rules of the Polish legal order.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/p>\n 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.<\/p>\n COMPLAINTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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.<\/p>\n 2.\u00a0\u00a0The 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.<\/p>\n 3.\u00a0\u00a0All applicants complain under Article 8 of the Convention of a breach of their right to family life.<\/p>\n 4.\u00a0\u00a0The 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\u2019 refusal to register their child\u2019s birth certificate in the Polish Civil Status Register.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Has there been an interference with the applicants\u2019 right to respect for their private and family life? Reference is made to the refusal to register the third applicant\u2019s birth certificate in the Polish Civil Status Register. If so, was the interference justified in accordance with the terms of Article\u00a08 \u00a7\u00a02?<\/p>\n 2.\u00a0\u00a0Have 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.<\/p>\n APPENDIX (anonymity has been granted)<\/p>\n Applicants\u00a0:<\/p>\n 1. A.D.-K. is a Polish national who was born in 1976, lives in Essex.<\/p>\n 2. S.D.-K. is a British national who was born in 1976, lives in Essex.<\/p>\n 3. L.D.-K. is a British national who was born in 2011, lives in Essex.<\/p>\n