In popular understanding around the world, “foundlings” are often imagined as abandoned babies found outside churches. In practice, this limited perception has grave consequences in law for foundlings whose stories do not fit into this neat perception, and who are thus at risk of statelessness. This blog introduces the intricate issues relating to understudied nationality law provisions around the world to grant nationality to “foundlings”, introducing an in-depth recent publication.
Imagine you are now 10 years old. Your mother gave birth at home, and you were not registered at birth. When you were small, you were informally “adopted” by an unrelated woman without ever going through legal procedures. You have been living in different places with your new “mother”. You were never vaccinated and never went to school. One day, you are discovered by the authorities, who subsequently find that the self-proclaimed mother is not related to you. Only fragments of information and no complete evidence of the identity of your birth mother or your blood relationship with her are found.
Rather surprisingly, actual precedents demonstrate that these kinds of situations take place even in countries with developed state bureaucracies.
The 1961 Convention Definition
Article 2 of the 1961 Convention on the Reduction of Statelessness (hereinafter the 1961 Convention), which marks its 60th Anniversary this year, is a provision that leads to the acquisition of nationality by a “foundling”, stipulating that:
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State (emphasis added).
Many State parties and non-State parties to the 1961 Convention have equivalent nationality law provisions.
Implementation in practice
In practice, the issue of identification is more complex: What is meant by “foundling?” In the above scenario, the authorities that discover such a child could say, the child is “too old” to be called a “foundling,” that this term only applied to new-born babies or that “the child is old enough to be responsible for their own status, to say who their parents are, where they were born.” If this is the case, then the child is left stateless.
So the main question is does a child really have to be abandoned as a newborn baby in front of a church etc., to be called a ’foundling,’ as commonly envisaged? Also what does it mean to be ’found’, and what constitutes ‘proof to the contrary’?
An Analysis across 193 States
Very limited literature has addressed these questions, which I have endeavored to answer in my recently-published book entitled Nationality of Foundlings - Avoiding Statelessness Among Children of Unknown Parents Under International Nationality Law (see the Executive Summary here). The book draws upon the object and purpose of the 1961 Convention, its preparatory materials, a comparative analysis of national legislation on “foundlings” covering 193 States, legal precedents in some States as well as international human rights law norms including the “best interests of the child” under the Convention on the Rights of the Child (CRC). As its conclusion, the book proposes a ’Model Foundling Provision’, a commentary to inform legislative efforts as well as the “full and inclusive” interpretation of the existing foundling provisions, to prevent stateless children from falling through the cracks. Two core themes of the book are outlined below.
Defining foundlings
Through my research I highlight that the term “foundling” itself is an ambiguous term, and equivalent words in different languages have varying connotations (e.g. French version of the Convention says “enfant trouvé,” and the Spanish says “expósito”). Based on my review of the wordings of “foundling provisions” around the world and the history leading to the adoption of the 1961 Convention, I concluded that the term “foundling” under Article 2 of the Convention essentially refers to a “person of unknown parents who is a child” when found in the territory. My book then goes on to discuss the disputed issues such as the “maximum age of the child” when found, who bears the burden of proof, and beyond.
Defining unknown parents
There is also widespread confusion about how parents can be classified as “unknown.” My book finds that, most typical cases that benefit from foundling provisions around the world are indeed babies found abandoned in different places or in “baby boxes,” and in some States including Italy and France, babies surrendered through a form of “anonymous birth” where the biological mother is factually known (at least to some extent) but not legally known. However, in some States, such as in Spain and Hungary as well as non-State parties to the 1961 Convention like Japan, foundling provisions are interpreted in a full and more inclusive manner to cover many other, rather “atypical” categories of persons, including babies left behind at a hospital by the birth mother who disappears after delivery, children who are entrusted to or informally adopted by unrelated adults (like the aforementioned case ), orphans, lost children, and persons who have lost their memory.
The work ahead
There are very limited statistics on the number of foundlings in any countries, especially when trying to focus on those who would otherwise be stateless and not just “abandoned” children. What stands out as substantial statistics are that in 2015, the government of Côte d’Ivoire estimated that there were 300,000 persons of unknown parentage who were stateless, with the lack of a foundling provision in its law.
I nevertheless estimate that it is likely that the number of children of unknown parents around the world is increasing due to a range of contributing factors such as irregular/forced migration, armed conflicts (and the associated destruction of civil documentation systems), trafficking, the Covid-19 pandemic among others. Even after I finished writing this book, I have come across more recent legal precedents which show that “the law of foundlings” is evolving.
It is hoped that the findings of the book will be useful not only to State parties to the 1961 Convention, but also non-State parties working to resolve statelessness of foundlings who can be among the most vulnerable, so that no one is left behind in the generations to come.
*The author is also a staff member of UNHCR Japan. However, this book was written in her personal capacity as a researcher, and the views expressed therein are those of the author and do not reflect the views of the UN or UNHCR.
