Update: 15.02.2018

Stateless children: a status contradicting children’s rights

Stateless children are often labelled as “invisible” children since they do not appear in any official documents. Their lack of citizenship is the origin of a variety of discrimination. These children have no access to medical care, education or child protection authorities. They are marginalised because their existence is not legally recognised. This can be avoided by adapting the legal framework in the area of citizenship and by establishing a comprehensive birth register.

What it means to be stateless

According to Art. 1 of the 1954 UN Convention relating to the Status of Stateless Persons the term “stateless person” means a person who is not considered a citizen by any state under its laws. Politically, statelessness is still a contentious issue. Counts and exact statistics are still rare due to a lack of determination procedures in many countries. A lack of recognition procedures prevent stateless people from being identified and protected.

Estimates suggest that around half of all stateless people are children, the majority of them from birth. Statelessness is an insurmountable barrier for children that denies them numerous basic rights. Since access to education is not ensured ex officio, the risk of exploiting children as cheap labour is very high. Stateless people are also unable to access the healthcare system. This can lead to irreversible health damage, for example if a mother receives no pre- or post-natal medical care during her pregnancy because of her statelessness. Stateless children are also at greater risk of being denied a state’s social benefits and services for children, such as social insurance or child protection measures.

Reasons for child statelessness

Children inherit statelessness from their parents. If both parents are stateless, their children do not become citizens of the place where they are born (jus soli).

In some countries, legislation on citizenship is so insufficient that children can be labelled stateless from birth. Many West African countries do not have legislation to handle the situation of foundlings. These children, who are not adopted and frequently suffer from physical or mental disabilities, often live their entire lives without any legal recognition and without citizenship. Orphans from countries with strong patriarchal family law are also frequently stateless.

Children can also become stateless due to a lack of official registration at birth. Without a birth certificate, it is virtually impossilbe to verify a child’s identity and prove their nationality. In Sub-Saharan Africa and Southern Asia, only one in three children is registered at birth.

This missing birth registration can be the result of insufficient mechanisms and infrastructure for systematic catalogueing births, but may also be due to trouble certain ethic groups have accessing official registers, which is deliberately complicated. In Indonesia, for example, illegitimate children were systematically not recorded in birth registers up to 2006.

In some countries, the rate of people with a birth certificate is 10% or lower. But not all these children are automatically stateless. This only happens when they have to prove their nationality, which is then denied to them. Most of these unregistered children are therefore not listed in statistics on stateless persons because they never get into a situation where they have to prove their nationality.

In some countries, children become stateless because women cannot pass on their nationality to their children. Even if the child is born in the same country as its mother, if the father has no nationality, the child has no right to citizenship in its country of birth and becomes a stateless person. Discriminatory regulations on nationality can also lead to statelessness if the father is unknown and the mother cannot pass on her nationality. Until 2013, Senegal had discriminatory legislation which prevented women from passing on their nationality to their children.

In some countries, adoption practices can lead to statelessness, if the child’s home country uses the adoption to legally rescind citizenship and the adoptive parent’s home country of does not grant the child nationality, for example because the adoption is void. This can also happen in Switzerland. Art. 264 of the Civil Code stipulates that a child may only be adopted if the future parents have granted it care and education for at least one year and if circumstances show that adoption would help the child. This can result in children becoming stateless in international adoption cases if they have already lost their citizenship from their country of origin before the adoption is accepted in Switzerland after a year.

Surrogacy can also lead to children losing their nationality if the future parents and the surrogate mother do not live in the same country. A refusal to legally recognise the surrogacy or differing regulations on nationality can result in statelessness in this situation.

Political persecution of ethnic minorities who are frequently are also stateless, such as the Rohingya in Myanmar or the Roma in South-Eastern Europe often affects children in particular.

Europe is affected, too

In its No Child Should Be Stateless Report, the European Network on Statelessness addressed the rationale and challenges of statelessness in eight European countries (Albania, Estonia, Italy, Latvia, Macedonia, Poland, Romania and Slovenia). The situation is problematic for children of homosexual couples whose partnership is not legally registered and therefore neither is their status as parents.

Children born through surrogacy is another highly problematic child rights issue. In countries that forbid surrogacy, couples who want to have children tend to go abroad to get their child. As a result of the ban on surrogacy, affected children may end up facing legal and administrative hurdles that deny them the same citizenship as the surrogate mother (who often remains anonymous) while also denying them the same citizenship of their adoptive parents, even if one parent has this nationality.

In June of 2014, the European Court of Human Rights (ECtHR) ruled two cases of surrogacy and forced France to grant citizenship to children of surrogate mothers with one French parent. The ECtHR condemned France because it had negated the lineage of the child of a foreign surrogate mother and a biological father with a French passport. The ECtHR stated that refusing to recognize the child’s origin violated that child’s identity and created a situation of legal uncertainty for the child.

Statelessness: a surmountable phenomenon

According to a report by the Office of the High Commissioner for Refugees in cooperation with the NGO Plan International, the situation is not hopeless for stateless children. Numerous countries have adopted measures to provide stateless children with citizenship, resulting in the rise of many movements to prevent statelessness.

In recent years, the UN Committee on the Rights of the Child has presented its member states with numerous recommendations to reduce the risk of statelessness that will hopefully lead to number dropping in the future. But the European Network on Statelessness is still disappointed with the Committee’s lack of follow through regarding certain laws and policies of various countries.

Finally, the key role national human rights institutions and ombudsman’s offices play in the fight against statelessness must not be overlooked.

Documentation

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