Litigation involving childhood statelessness sheds light on how statelessness can exacerbate the vulnerabilities inherent in being a child litigant. For stateless children, the lack of nationality is often accompanied by a denial of other rights, such as healthcare, education, and a legal identity. Litigation stands as one way to combat these human rights violations. Through an examination of court cases across the European Union, I questioned whether a particular litigation structure or pattern could be found helpful (or harmful) for child litigants.
Court decisions from 17 European and international jurisdictions were collected from online databases. These cases involved various aspects of childhood statelessness, including acquisition of nationality and birth registration. Most of the decisions analysed may be found in the ENS Statelessness Case Law Database. The “Childhood statelessness” filter under “Key aspects” of the database returned approximately 50 cases from international and national venues. Of all the cases collected, data from 44 were analysed, ranging in date from 1999 to 2023.
A “positive” outcome included cases in which adjudicators found in favour of the child applicant(s) and/or statelessness was avoided. “Negative” outcomes included those in which statelessness resulted or remained, or produced a state of ongoing uncertainty. From the related findings, with additional context given by interviews conducted with experts, certain impressions emerged surrounding litigant choice, the existence of special representatives, and a State’s treatment of its international obligations.
The Effect of Multiple Litigants
Quite often, a child is joined in statelessness litigation by other children, parents, or adults connected to circumstances that led to the legal action. A court must separately assess each child’s best interests and claims in such cases – the failure to do so may lead to violations of a child’s rights and offend the best interests of the child principle. To complicate matters further, a stateless child’s often young age suggests innocence, but the child could be connected to litigants who might not be seen as credible by the adjudicator (see e.g., this judgment from Switzerland). Despite these and other risks of multiple litigants noted in child rights literature (e.g., CRIN, p. 7 (children either empowered by or “thrown into the shadow of their parents”); Nolan, p. 14 (attachment to adults hinders child participation); Fenton-Glynn, pp 650-51 (dangers of parent/child conflict of interest)), this sample initially appeared to tell a different story. Half of the positive cases included multiple litigants, and the majority of those were child/parent combinations.
Upon a closer look, however, commonalities among these positive cases with multiple litigants emerged. 40% of these cases concerned children born through surrogacy and/or to LGBTIQ+ parents; there were no negative cases concerning these particular issues from this specific sample. It is worth noting these positive cases did not concern matters of asylum or forced migration, and all of these successful litigants were from either Europe or North America.
Negative cases with multiple litigants presented litigants associated with the Global South (e.g., Cameroon, Ghana, Sierra Leone, Nigeria, Bangladesh). In these cases, children’s claims often were not analysed separately by courts and the best interests of the child were arguably not considered. For example, one court stated that because the applicant child 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 other cases, the parents’ alleged lack of credibility harmed their children’s cases. In a judgment from Switzerland for instance, three children born in Switzerland were left stateless due to issues pertaining to their parents’ alleged lack of credibility, without any attention paid to the children’s welfare.
Stateless Children Deserve Special Representatives
The Convention on the Rights of the Child (CRC), to which all European States are parties, mandates a child’s right to be heard and participate in proceedings. The introduction of a third party could be a useful response to this obligation to provide a balance – independent NGO representation or participation as an amicus party or intervenor. Another potentially more powerful means of protection is the appointment of a guardian ad litem or special representative.
There is “international consensus” that “children need representation” both to insist their voice be heard and to help navigate court procedure. In family courts, guardians are in fact provided to children on a reliable basis in many European jurisdictions. Unfortunately, several international forums and immigration/asylum courts and tribunals are unaccustomed to guardians and no framework exists to provide similar protection. Reasons for the failure of these courts to appoint guardians are complex but might include the high cost of guardianship or the discriminatory treatment of foreign children (e.g., alleged discrimination in France and Greece).
Despite existing treaties and laws aimed at protecting the rights of the child and preventing childhood statelessness, litigators themselves may be forced to create their own safeguards and set precedents to protect their minor clients. These practices could take several forms such as a fight for equal treatment of children across courts. In other words, children in immigration courts deserve the same treatment as those in family courts.
Litigators representing stateless children could petition a court to appoint a guardian if none exists and cite the reasons and benefits granted by the analogous family court in the same jurisdiction. In the event of refusal, litigators may argue discrimination as an additional rights violation against their minor clients under the State’s law or multiple international agreements (e.g., the Charter of Fundamental Rights of the European Union, the ECHR, the CRC, the ICCPR). Litigators may further cite in their pleadings family law cases within their jurisdiction on issues of the best interests of the child and the right to be heard, with hope that an adjudicator will adopt similar views or procedures in the immigration tribunal or court concerned. Perhaps an exercise of legal creativity within the non-family law framework could improve the chances of stateless child litigants receiving equal protection.
Strength in Advocacy and Lobbying
Child statelessness should be eradicated under the CRC, among other international obligations. Strategic litigation in the context of statelessness is challenging and is further aggravated when States fail to incorporate these obligations into law and to implement them in practice. A strengthened foundation of positive legal precedents begins by providing litigators and courts with domestic laws to apply and interpret. For this reason, stateless children would benefit from renewed and targeted lobbying efforts to incorporate the CRC and the 1961 Convention on the Reduction of Statelessness into domestic laws and then to ensure implementation in practice.
After UNHCR’s #IBelong campaign and its current “redoubling efforts” strategic plan, it seems the louder and more frequent the voices, the better. UNHCR’s campaign resulted in some success: increased accession to the Statelessness Conventions; adoption of stronger protection laws, and the enactment of laws to prevent childhood statelessness. Further, the work of the Global Alliance to End Statelessness, the Council of Europe, ENS, and the European Union on issues of both statelessness and child rights endures. There is therefore hope that targeted lobbying for accession and/or incorporation of the 1961 Convention and the CRC into domestic law could achieve some success.
Breaking the Circular Pattern
In some cases, a child’s journey may begin and end with a State’s failure to incorporate or implement these relevant treaties. Childhood statelessness often begins with a denial of rights to birth registration and/or acquisition of nationality, provided for by the CRC and the 1961 Statelessness Convention. This denial may result from a State’s failure to incorporate and implement these treaties domestically, in addition to myriad other factors such as discrimination. Some children may then be introduced into the court system by adults making decisions on their behalf and determining how a child will be heard. Their cases may not succeed for various reasons, including children’s views left unexpressed or other violations of their CRC Article 12 right to be heard.
Such failure might be tied back to the inability for litigants and courts in many European States to sink their teeth into relevant treaties due to an absence of domestic law. As a result, reliance upon other treaties such as ECHR Article 8 may be promising (e.g., ECtHR Guide pp. 82-83; C v. Italy), but Conventions such as the ECHR do not spell out in clear, black-letter law a State’s obligations to safeguard children from statelessness as do the CRC and the 1961 Convention.
In sum, this research suggested that stateless children have the best chance of success in court if their claims are addressed separately from all other litigants, are appointed a special representative, and their arguments are rooted in indisputably binding domestic law. The simplicity of this conclusion is deceiving, as the research also revealed how often these fundamental notions were not realised, despite considerable efforts made by children’s advocates. Thus, the path forward for litigants and advocates involves a focus both in and out of the courtroom.
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