Cross-Border Portability of Personal Status: Human Rights to the Rescue?
By Dr Sarah Den Haese*
When people cross State borders, they expect their personal status (age, sex, gender, nationality, filiation and marital status) to travel with them. A person lawfully married in e.g. Germany has the expectation of being considered married by e.g. the Belgian authorities. The question whether a personal status (validly) obtained abroad can be recognised, is governed by a (complex) maze of private international law (PIL) rules. Since there is currently no general international or European legal framework with regard to the recognition of personal status, each State has their own rules in place. However, throughout the years, more and more countries have engaged in international co-operation in the field of PIL to enable the cross-border movement of persons, services, goods, capital and information. In the field of family law, both the Hague Conference on Private International Law (HCCH) and the EU have developed legislation. This blogpost will briefly outline the current legal framework in Belgium and the Netherlands governing the recognition of marriages celebrated abroad, parenthood established abroad and kafala. It will subsequently highlight to what extent human rights law can be invoked to obtain or prevent the recognition of a (change in) personal status obtained abroad. Lastly, attention will go to the practice of Belgian and Dutch administrative and judicial authorities.
Recognition of a personal status obtained abroad is a question of private international law
In both Belgium and the Netherlands, the recognition of a decision on the provision of care by kafala – an Islamic child protection measure – is governed by the 1996 Hague Child Protection Convention or domestic PIL rules depending on the country of origin. In the field of legal parenthood, both the HCCH and the EU are currently studying the PIL issues. Until today, however, the recognition of parenthood established abroad is still fully covered by domestic rules (Belgium: Articles 22-25 or Article 27 and Article 30 Belgian Code of PIL; the Netherlands: Articles 100-101 Book 10 of the Dutch Civil Code). With regard to the recognition of foreign marriage certificates, the HCCH developed an international Convention in 1978: the 1978 Convention on Celebration and Recognition of the Validity of Marriages. As this convention is only ratified by Australia, Luxembourg and the Netherlands, it does not play a role in Belgium. The Dutch legislator has translated the convention provisions and supplemented the convention where allowed in Articles 27-34 Book 10 of the Dutch Civil Code. In Belgium, the recognition of foreign marriage certificates is governed by domestic PIL rules (see Belgian Code of PIL). At the level of the EU, the recognition of foreign documents recording the personal status of people (e.g. birth and marriage certificates) was envisaged in Regulation (EU) 2016/1191 (Public Documents Regulation). This regulation did not fulfil its full potential as it only exempts documents originating from EU Member States from the requirement of legalisation (Preamble 19 and Articles 1 and 4 Public Documents Regulation).
European Convention on Human Rights as a corrective mechanism
When applying international, European or domestic PIL provisions, States must always bear in mind the fundamental rights and guarantees enshrined in international and European human rights law instruments. The result obtained after having applied PIL rules must meet the rights and guarantees enshrined in e.g. the ECHR. A thorough analysis of the ECtHR’s case law (#28 cases) revealed that Article 6 ECHR (right to a fair trial) and Article 8 ECHR (right to respect for private and family life) can be invoked to oblige national authorities to recognise a personal status obtained abroad or prevent the recognition of a personal status established abroad.
Obligation to recognise a personal status lawfully obtained abroad
On several occasions, the ECtHR has stressed the importance of a uniform personal status across State borders (e.g. Kismoun, § 36 and Loudoudi and Others, § 101). Consequently, human rights law primarily takes on the role of facilitating recognition. When confronted with a request to recognise a foreign document establishing a (change in) personal status, Member States have to act swiftly. The case law of the ECtHR shows that both Article 6, §1 ECHR and Article 8 ECHR entails the right to have your case dealt with within a reasonable time (Hussin, Sylvester No. 2 and Dadouch). What is considered ‘reasonable’ depends on the complexity of the case, the conduct of the applicant(s) and the relevant authorities and what was at stake for the applicant(s) in the dispute. When recognition of a change in sex is sought, Article 8 ECHR obliges Contracting States to legally recognise the sex change of post-operative transgenders (Christine Goodwin, § 93 and I., § 73).
In de landmark case Wagner and J.M.W.L., the ECtHR decided that the decision of Luxembourg not to recognise the Peruvian adoption order was not necessary in a democratic society. First, Luxembourg had recognised full adoptions pronounced abroad in favour of unmarried persons for many years. Second, it was clear that the child’s adoptive mother, Ms. Wagner, had acted in good faith. Third, a comparative analysis had indicated that in most Contracting States, adoption by unmarried persons is permitted without restrictions. Referring to the best interests of the child and the social reality of the situation, the ECtHR considered that Luxembourg had violated Article 8 ECHR by not recognising the Peruvian adoption order. With regard to marriages celebrated abroad, the starting point is that marriages celebrated in accordance with the lex loci celebrationis must be recognised (Dadouch).
In 2013, the ECtHR stressed the importance of a single surname across State borders (Kismoun, § 36). The State’s interest of providing legal certainty of social relations can only outweigh an individual’s interest in having a single surname in exceptional circumstances. A name validly obtained abroad and carried in good faith for nearly 20 years must, in principle, be recognised in the addressed Contracting State. The Harroudj and Loudoudi and Others cases illustrate that Contracting States must make sure that a child placed in kafala care and his/her/their kafil(s) can establish and continue their family life. Furthermore, those children have the right to have their relationship with their kafil(s) legally protected. Although Article 8 ECHR cannot be interpreted as guaranteeing the right to a particular residence permit, Contracting States must provide children placed in kafala care with an adequate residence status. However, under Article 8 there is no obligation to convert kafala into adoption. Lastly, the facilitating role of the ECHR is demonstrated in the ECtHR’s case law on surrogacy. A child’s right to respect for private life entails the right to have the details of their identity established.
For children born through surrogacy, Contracting States’ obligations vary depending on the specific circumstances of the case. First, when a biological tie is present between the child and one of the intended parents and the latter has the intention to raise the child, Member States of the Council of Europe are under the obligation to legally recognise the relationship validly established abroad between the child and the intended parent with a biological link (Mennesson, Labassee and D.). Legal recognition is afforded by recognising the foreign birth certificate, allowing the intended parent to acknowledge the child or through adoption. Consequently, there is no general obligation to recognise a foreign birth certificate validly established abroad.
Second, when no biological tie is present, a distinction must be made between situations where a de facto family life exists (advisory opinion, C. and E. and Valdís Fjölnisdóttir and Others) and situations where the State prevented the creation of close personal ties (Paradiso and Campanelli). In the former scenario, Article 8 ECHR obliges States to legally protect the relationship between the child and intended parent(s) with no biological tie. The means by which to permit recognition of the legal parent-child relationship (e.g. recognition of the foreign birth certificate or adoption) is a matter for the States to decide. Again, there is no right to have a foreign judgment establishing legal parenthood or foreign birth certificate recognised as such. When the receiving State prevented the establishment of close personal ties between the child and the intended parents due to the intended parents’ illegal conduct, the removal and placement of the child in a children’s home does not constitute a violation of the intended parents’ right to respect for private life.
Obligation to refuse recognition a personal status lawfully obtained abroad
The idea of a uniform personal status across State borders is not absolute. Under certain circumstances, recognition results or would result in a violation of the rights and guarantees enshrined in the ECHR. Here, human rights law takes on the role of obstructing recognition.
A foreign judgment (e.g. a divorce decree or marriage annulment) pronounced without safeguarding the right to a fair trial (e.g. violation of the rights of defence or no equality of arms) cannot be recognised even if non-recognition would result in a limping legal relationship (Pellegrini). Before awarding any effect to a foreign judgment, the recognising Contracting State must verify whether the foreign proceedings meet the standard of Article 6 ECHR. Deciding otherwise would lead to a violation of the ECHR by the recognising State.
In addition, a foreign judgment irreconcilable with an earlier judgment eligible for recognition cannot be recognised (McDonald). The ECHR cannot be invoked to obtain the recognition of a decision obtained abroad with the intention of circumvention an earlier decision.
With regard to marriages celebrated abroad, the ECtHR’s case law makes clear that Contracting States are (currently) under no obligation to recognise polygamous marriages (Green and Farhat), child marriages (Z.H. and R.H.) and same-sex marriages (Orlandi and Others). The principle of monogamy and the rights of the child allow Contracting States to refuse the recognition of a marriage validly established abroad. The lack of a European consensus on same-sex marriage and the present-day interpretation of Article 12 ECHR permit Contracting States to restrict access to marriage to different-sex couples and refuse the recognition of a same-sex marriage celebrated abroad. However, in order to fulfil the positive obligations under Article 8 ECHR, Contracting States must have a specific framework in place providing for the recognition and protection of same-sex unions. Consequently, same-sex couples lawfully married abroad have the right to have their marriage converted into a registered partnership or civil union with the aim of having their relationship legally protected.
Prevalence of human rights law in the practice of Belgian and Dutch administrative and judicial authorities
Through my doctoral research, I explored to what extent human rights law can be invoked to obtain or prevent the recognition of a (change in) personal status obtained abroad and to explore how Belgian and Dutch public servants and judges implement these principles. The results are alarming.
In an online survey distributed among 219 Belgian and Dutch public servants, no less than 124 participants (or 80% of the respondents who answered this question) disclosed that they are not aware of the case law of the ECtHR regarding the recognition of a personal status obtained abroad. Only 31 participants stated that they are familiar with the ECtHR’s case law of which only 20 indicated that they also apply this case law in practice (for more information: Den Haese, Sarah, and Verhellen, Jinske, “Foreign Birth and Marriage Documents: The Voice of Belgian and Dutch Public Servants”, Nederlands Internationaal Privaatrecht (NIPR), No. 2, 2020, pp. 195-215).
At the level of the courts, the situation is not that different. Both in Belgium and the Netherlands, case law was scrutinised dealing with requests to have foreign marriages certificates and foreign documents establishing parenthood recognised. In Belgium, Article 12 ECHR alone or in conjunction with Article 8 ECHR was (were) invoked in 19% of the analysed cases where recognition was sought of a marriage celebrated abroad. In nearly all cases, the right to marry was invoked to justify the non-recognition of the foreign marriage certificate if it had been established that (one of) the spouses do(es) not have the intention to create a sustainable community of life. Both family and appeal judges emphasised that the right to marry is not absolute and that the ECHR only protects ‘real’ relationships. In cases where recognition was sought of parenthood established through surrogacy, the ECtHR’s case law was omnipresent. This is no surprise as Belgium has no legal framework in place dealing with surrogacy. In the Netherlands, reference to the ECHR and the ECtHR’s case law was limited to cases where the applicant(s) tried to obtain the Dutch nationality for a person born during a polygamous marriage. In none of these cases did the applicants succeed in convincing the court to grant them or their child(ren) Dutch nationality.
Further research is needed to determine why domestic judges refrain from explicitly invoking human rights principles. Are national judges not familiar with these principles? Do they not see the potential of these principles when the portability of a personal status is at stake? Or are their judgments shaped by the case law of the ECtHR without explicit reference?
* Dr Sarah Den Haese is a researcher at the Institute for Private International Law at Ghent University. Her research interests concern private international law, (international) family law, human rights law and migration law. She obtained her PhD in October 2021.
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