Communicated on 8 December 2020 Published on 11 January 2021

FIRST SECTION

Application no. 1298/19 A.P. and R.P. against Poland lodged on 12 December 2018

STATEMENT OF FACTS

The first applicant, Ms A. P., is a Polish national, who was born in 1978 and lives in Northampton, Great Britain. She is represented before the Court by Mr W. Koncewicz and Mr T.T. Koncewicz, lawyers practising in Wałbrzych, Poland. She also complains in respect of her child, R. P. (the second applicant), who was born in 2014 and lives in Northampton , Great Britain .

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

The first applicant is living together with E.G., a Polish national in a same ‑ sex relationship in the United Kingdom.

On 27 November 2014 the first applicant gave birth to the second applicant at a London hospital.

The child ’ s original birth certificate indicates the first applicant as his mother and E.G. as his parent.

On 28 July 2015 the first applicant applied to the Myszków Civil Status Registry ( Urz ą d Stanu Cywilnego ) in order to have the particulars of the child ’ s birth certificate recorded in Poland ( wniosek o transkrypcj ę zagranicznego aktu urodzenia ).

On 18 August 2015 the Director of the Myszków Civil Status Registry refused the application. The director stated that it was not possible to register the birth certificate in Poland as it was against the principle of public policy. According to the principles of the Polish legal system, it was not possible to transcribe a birth certificate which indicated two women as the child ’ s parents.

The applicants appealed, relying in particular on Article 8 of the Convention.

On 9 November 2015 the Åš l Ä… ski Governor ( Wojewoda Åš l Ä… ski ) 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 podstawowymi zasadami porzÄ…dku prawnego RP) .

The Governor confirmed that the first-instance authority had correctly applied the public policy exception since the foreign birth certificate in question was contrary to the provisions of the Polish Family and Custody Code. The law in force did not allow registration of same ‑ sex unions or adoption of a child by a same-sex couple. The Governor further relied on the Court ’ s judgment given in the case of Gas and Dubois v. France , (no. 25951/07, ECHR 2012).

The first applicant appealed. She submitted that the Governor ’ s decision was in breach of the Polish Constitution and numerous other legal acts.

On 6 April 2016 the Gliwice Regional Administrative Court dismissed the appeal. The court endorsed the reasoning given by the administrative authorities. It further observed that had the foreign birth certificate been recorded in the Civil Status Register, the Polish birth certificate would have indicated a woman ’ s personal data in the box designated for “father”. Under the legal provisions in force it was not possible to record a woman ’ s name in the box designated for “father”. Moreover, it was not possible to register a same-sex relationship, there were further no provisions relating to a second-parent adoption. “Parents” had always meant a man and a woman. Consequently, the authorities had been right to apply the public policy exception. Lastly, the court noted that there was no need to transcribe the birth certificate as the second applicant could rely on his foreign birth certificate in any contacts with the Polish authorities.

The first applicant lodged a cassation appeal. She submitted that a Polish birth certificate was necessary in order to obtain a Polish passport for her child. She relied on the UN Convention on the Rights of the Child and the concept of the child ’ s best interests. She maintained that the refusal to issue a Polish birth certificate to her son constituted discrimination on the ground of his parents ’ sexual orientation.

On 18 June 2018 the Polish Ombudsman submitted his intervention on the applicants ’ behalf, to the Supreme Administrative Court. The Ombudsman noted that pursuant to section 104 (5) of the Law on Civil Status Records of 2014 which was applicable in the present case, transcription of a foreign civil status document was obligatory if a Polish citizen was applying for a Polish identity document or the national identification number (PESEL). In the present case, the Regional Administrative Curt had failed to take into consideration the child ’ s best interests and the consequences of the refusal of transcription on the child ’ s private life. Lastly, the Ombudsman stressed that the authorities had applied the public policy principle automatically, without any consideration to the child ’ s best interest.

On 20 December 2018 the Supreme Administrative Court dismissed the applicants ’ cassation appeal. The court found that the cassation-appeal was unfounded and the lower instances correctly established that transcription of the birth certificate in question would have contravened the domestic legal order.

Until 1 March 2015 section 73 (1) of the Law on Civil Status Records ( prawo o aktach stanu cywilnego ; “the 1986 Law”) of 29 September 1986, provided that a foreign civil status certificate might be registered in the Polish Civil Status Register ex officio or on an application by a person concerned .

On 1 March 2015 the Law on Civil Status Records of 28 November 2014 ( prawo o aktach stanu cywilnego ) (“the 2014 Law”) entered into force repealing the 1986 Law. Pursuant to section 104 (5) transcription of a foreign civil status certificate for a Polish citizen is obligatory in particular if he/she is applying for a Polish identity document or a national identification number (PESEL). At the same time, under section 107 (3) the Director of the Civil Status Registry refuses to register a foreign civil status certificate if the transcription would have been contradictory to the fundamental principles of legal order of the Republic of Poland.

COMPLAINTS

The applicants complain under Article 8 of the Convention alone and taken in conjunction with Article 14 of the Convention about a breach of their right to respect for their private and family life.

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 second 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 (see Mennesson v. France , no. 65192/11, §§ 96-101, ECHR 2014 (extracts)) ?

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