Research Sheds Light on Childhood Statelessness Litigation in Europe 

Rachael Pop, Human Rights Attorney and Consultant. Rachael is the runner up of the 8th annual Border Criminologies Dissertation Prize. 

In the face of claims that statelessness is an avoidable tragedy, millions still suffer from the deprivation of a nationality. The children among these millions often are born into statelessness and thus a life of instability. All European states have ratified the Convention on the Rights of the Child (CRC), which mandates immediate birth registration and the right to acquire a nationality, yet childhood statelessness persists as a problem in Europe.  

Stateless children sometimes challenge the resulting human rights violations in court. Through anonymized interviews with legal experts and an analysis of 44 childhood statelessness cases from national and international European venues (most found within the ENS Stateless Case Law Database applying the "childhood stateless" key aspect filter), my research explored how certain elements of litigation may affect case outcome.  

On the surface, it was somewhat encouraging that the majority of cases fell into the “positive” category (statelessness avoided). It was arguably unsurprising that the CRC Committee and the Human Rights Committee did not present any “negative” cases (stateless result/protracted ambiguity), but these findings were not straightforward. As seen below, several jurisdictions, including the ECtHR, landed on both sides, and some did not present any positive outcomes (Croatia, Cyprus).  

Observing only the outcome, however, is one piece of a complex litigation puzzle, albeit the most important to a stateless child litigant. To better understand what lessons could be learned, I targeted the examination of: (1) litigant choice, (2) availability of special representatives, and (3) the relevant law of the jurisdiction. In this article, I only touch upon certain findings concerning litigant choice. To examine other aspects of my research, I invite readers to review my dissertation in its entirety. 

Effect of Multiple Litigants 

A child litigant often is attached to other children, parents, or adults connected to circumstances that prompted legal action. In the context of statelessness, the affected child is often an infant or toddler whose age suggests innocence, but the child could be coupled with litigants the adjudicator deems not credible. Regardless, a court must assess each child’s claims separately – failure to do so offends the best interests of the child principle and leads to rights violations.  

Parent and Child as Co-Litigants: Blurred Lines 

Child rights experts have observed children being either empowered by or “thrown into the shadow of their parents.” The experts I interviewed underscored the dangers inherent with co-litigant children and parents. One human rights scholar noted: “Often children are just treated in line with their parents, as part of their parents’ procedures”, when they should be addressed separately. NGO Executive Directors and human rights barristers alike emphasized child litigants should distance themselves from their parents and demand separate legal representation.  

One Executive Director noted that many litigators do take care to identify and take on cases in which there is a situation specific to children that cannot be subsumed by their parents’ case. Unfortunately, in some cases, that power is not held by the litigator. A Former CRC Chair noted: “The biggest problem is when judges say ‘unfortunately the child cannot come and therefore I’m using the parents’. Some find it too unpleasant and a waste of time to work with children.”  

The Former CRC Chair noted one problem specific to statelessness – small children cannot make independent decisions regarding nationality. Parents might even oppose their child obtaining citizenship of certain states, creating situations potentially resulting in statelessness. Parents also may fundamentally disagree with attorneys or their own children as to what the best interests of their children are, or believe certain legal actions run counter to cultural values. Such situations hinder child participation and present dangers of parent/child conflict of interest. 

The Weight of Individual Litigant Characteristics  

Despite these risks, my study sample initially told a different story. Half the positive cases involved multiple litigants, and 80 percent of those were child/parent combinations. Considering the possibility of conflicts of interest and/or being faced with an adjudicator who fails to separate the claims as required, these findings were unexpected. However, some commonalities emerged among these positive cases. 

Forty percent of multiple litigant cases concerned surrogacy and/or LGBTQ+ parentage. My specific sample of cases did not present any negative outcomes concerning these particular topics. The ECtHR, the CJEU, and courts in Austria, France and Poland all ruled in favor of these children and their parents facing reproductive rights issues. Notably, these cases did not concern matters of asylum or forced migration, and all of these successful litigants were from Europe or North America. 

Conversely, negative cases presented litigants associated with the Global South (Cameroon, Ghana, Sierra Leone, Nigeria, Bangladesh). In these cases, children’s claims often were not analysed separately, and the best interests of the child arguably were not considered. In Ireland, Switzerland, and the UK, the three cases with a parent/child litigant combination and negative outcome, underscore these points. One court stated that because the applicant was an infant, “the application was made on her behalf by her father and […] the substantive claims made on her behalf relate to the experiences of her parents”, and did not deliberate the child’s best interests. In another judgment, three children were left stateless due to their parents’ alleged credibility issues, without attention paid to the children’s welfare. One court even acknowledged that the stateless outcome for the child litigant “is somewhat harsh and that she is an entirely blameless party”, after being left without citizenship due to a governmental error regarding her father’s legal status.  

In the cases examined, the dangers of multiple litigants warned of by experts manifested and children remained stateless. At the same time, one must acknowledge that a child’s dependence upon adults to access justice is unavoidable. In the case of small children, litigant choices must be made for them. Thus, the question remains how to allow that dependence upon adults to work to the benefit and not the detriment of a child litigant. My research confirmed that ensuring that adjudicators assess each child’s claim independently from all others remains an essential component of response and protection. 

Any comments about this post? Get in touch with us! Send us an email, or find us on LinkedIn and BlueSky.