X AND Z v. POLAND

Published on 4 October 2021

FIRST SECTION

Application no. 9001/21
X and Z
against Poland
lodged on 30 January 2021
communicated on 13 September 2021

STATEMENT OF FACTS

The applicants, X (“the first applicant”) and Z (“the second applicant”), are both nationals of an EU country C and a non-EU country D. They were born in 2010 and 2012 respectively and live in city E in an EU country F. They are represented before the Court by their adoptive parent, Ms A.The circumstances of the case

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

Ms A lives together with Ms B in a same-sex relationship in F. Ms A is a national of Poland and non-EU countries G and D. Ms B is a national of an EU country C.

On 27 January 2010 Ms B gave birth to the first applicant in F.

On 15 June 2011 the E Court of First Instance gave an adoption order confirming adoption of the child by Ms A. The court noted that, under the rules of private international law, G’s law was applicable. Pursuant to the relevant provisions an adoption order could be made on the application of one person who had attained the age of twenty-one years if the court was satisfied that the person was the partner of a parent of the person to be adopted.

On 14 February 2012 Ms B gave birth to the second applicant in F.

On 21 November 2013 the E Court of First Instance confirmed adoption of the child by Ms A.

The children’s original birth certificates indicate Ms B as their mother and Ms A as their adoptive parent (adoption plénière). They also include information about the adoption proceedings.Administrative proceedings in Poland

On 28 March 2018 Ms A applied on behalf of both applicants as their curator ad litem to the Mazowiecki Governor for confirmation of the applicants’ Polish citizenship.

On 5 October 2018 the Mazowiecki Governor gave two decisions refusing both applications. The Governor held that the birth certificates issued by F contravened the principles of the Polish legal order. The domestic legal provisions did not allow birth certificates to be issued indicating two persons of the same sex as parents, nor was it possible to recognise the effects of the applicants’ adoption under Polish law.

On 25 October 2018 the applicants’ representative appealed to the Minister of the Interior relying, in particular, on Articles 8 and 14 of the Convention.

On 26 November 2018 the Minister of the Interior stayed the appeal proceedings. The Minister held that the decisions in the present cases depended on previous decisions given by a civil court. More specifically, the applicants should institute civil proceedings under Article 1148 of the Code of Civil Procedure in order to determine whether the foreign judgments were applicable in Poland.

The applicants’ representative lodged an application for reconsideration of the cases on 6 December 2018.

On 18 December 2018 the Minister of the Interior quashed the previous decisions of 26 November 2018. The Minister held that the preliminary question of whether the foreign judgments were applicable in Poland would be examined in the administrative proceedings.

On 15 February 2019 the Minister of the Interior gave decisions on the merits and upheld the decisions of the Mazowiecki Governor of 5 October 2018. The Minister stated that the effects of the judgments of the E Court of First Instance were contrary to the principles of the Polish legal order. The Polish legal system did not allow full adoption in a situation where parents were a same-sex couple. Children’s birth certificates which indicated two people of the same sex as parents could not have any legal effect. The Minister relied on the public policy principle and found that every State had a right to regulate issues relating to acquisition of citizenship. Lastly, the Minister noted that the children already had one citizenship (of C) and the decision had not caused them to become stateless.

The applicants’ representative appealed. In particular, she alleged a breach of the Polish Constitution and the Convention.

On 12 June 2019 the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny) quashed the Minister’s decisions of 15 February 2019. The court found that, under the relevant provisions of the Family and Custody Coder, full adoption by a single parent was permitted. Such adoption was exceptional but could be justified by the particular circumstances of the present case. For those reasons the judgments given by the foreign court did not contravene the Polish legal order. It was true that the children’s birth certificates indicated two women as their parents. However, for confirmation of Polish nationality only the fact that one of the parents was a Polish the citizen was conclusive. The fact that the other parent was also a woman had no legal effects. The court stressed, relying on the case-law of the Supreme Administrative Court (judgment of 30 October 2018 II OSK 1868/16), that acquisition of citizenship was an issue of public law and the family law provisions relating to filiation were thus not applicable. Given those considerations, the public policy clause provided by section 7 of the Private International Law Act could not be relied upon.

On 12 August 2019 the Minister of the Interior lodged cassation appeals with the Supreme Administrative Court.

On 23 June 2020 the Supreme Administrative Court quashed the Regional Court’s judgments and dismissed the applicants’ appeals against the decisions of 15 February 2019. The judgments are final. They were served on the applicants’ representative on 31 July 2020.

The court found that it was not necessary to institute separate proceedings before civil courts pursuant to Article 1145 of the Code of Civil Procedure in order to confirm that the adoption judgments were applicable in Poland. At the same time the first-instance court had wrongly established that the adoption order confirming the adoption of the applicants by Ms A had concerned a “full adoption” (przysposobienie pełne). Since the applicants could not be considered as adopted by Ms A, they could not have acquired Polish nationality pursuant to section 16 of the Polish Citizenship Act and therefore their appeal should have been dismissed.Relevant domestic law and practiceConstitutional provisions

Article 18 of the Polish Constitution provides as follows:

“Marriage, being the union of a man and a woman, as well as family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.”Code of Civil Procedure

(a)   Foreign documents

Article 1138 of the Code of Civil Procedure (“the CCP”), in so far as relevant, reads:

“Foreign official documents shall have the same probative value as Polish official documents ...”

(b)   Recognition of foreign judgments and decisions

Article 1145 of the CCP reads as follows:

“Foreign judgments and decisions given in civil cases shall be recognised by operation of law, unless [the] obstacles referred to in Article 1146 exist.”

Article 1146 § 1 (7) of the CCP, in so far as relevant, reads as follows:

“... a judgment shall not be recognised if recognition would be contrary to the fundamental principles of the legal order of the Republic of Poland (public policy clause).”

Under Article 1148 of the CCP, anyone who has legal interest may lodge an application with a court in order to determine whether a foreign court’s decision or judgment is to be recognised.Family and Custody Code

The Family and Custody Code (“the FCC”) contains provisions relating to adoption.

Article 1141 of the FCC provides as follows:

“§ 1. A person with full legal capacity may adopt as long as their personal qualifications justify the belief that they will properly carry out the obligations of an adopter.

§ 2. There should be an appropriate age difference between the adopter and the adoptee.”

Under Article 115 § 1 of the FCC only a married couple may adopt jointly.

Article 121 of FCC concerns full adoption (adoptio plenissima) and provides:

“§ 1.  Through adoption, the relationship between the adopter and adoptee is the same as between parents and children.

§ 2.  The adoptee acquires the rights and obligations of kinship in relation to the relatives of the adopter.

§ 3.  The adoptee loses the rights and obligations arising from his/her relations with relatives, and his/her relatives lose their rights and obligations in relation to him/her.

§ 4.  The effects of the adoption extend to the descendants of the adoptee.”

Adoption of the other spouse’s child (second-parent adoption) is provided for under Article 1211 of the FCC:

“§ 1.  The provision of Article 121 § 3 will not apply towards a spouse whose child was adopted by the other spouse, or against relatives of the spouse, including the case of an adoption after the termination of marriage through the death of the spouse.

§ 2.  Where a spouse has adopted a child of his/her spouse after the death of the other parent of the adoptee, the provision of Article 121 § 3 will not apply towards the relatives of the deceased, if stated in the guardianship court’s ruling.”Polish Citizenship Act

At the material time, acquisition of Polish citizenship was regulated by the Act of 2 April 2009 on Polish citizenship (ustawa o obywatelstwie polskim – hereinafter “the 2009 Act”). The relevant provisions read as follows:

“A foreign minor, adopted by a person or persons holding Polish citizenship, acquires Polish citizenship if the full adoption has taken place before his/her sixteenth birthday. In that case it is assumed that a minor foreigner has acquired Polish citizenship on the day of his/her birth.”Private International Law Act

Section 7 of the Private International Law Act of 4 February 2011 (ustawa prawo prywatne międzynarodowe) provides as follows:

“Foreign law shall not apply where application thereof would have effects contrary to the fundamental principles of the legal order of the Republic of Poland.”

COMPLAINTS

The applicants complain under Article 8 of the Convention about a breach of their private life on account of the Polish authorities’ refusal to recognise the legal and factual link with Ms A. Despite the fact that their adoptive parent, Ms A, is a Polish citizen, they were refused Polish citizenship.

They further complain under Article 8 together with Article 14 of the Convention that the domestic authorities based their decisions not to confirm their Polish citizenship on considerations relating to their parents’ sexual orientation.

QUESTIONS TO THE PARTIES

1.  Has there been a violation of the applicants’ right to respect for their private and/or family life, contrary to Article 8 of the Convention (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, §§ 118‑136, 28 June 2007 and Mennesson v. France, no. 65192/11, §§ 96-101, ECHR 2014 (extracts) )?

2.  Have the applicants suffered discrimination on the grounds of their parents’ sexual orientation, contrary to Article 14 of the Convention in conjunction with Article 8? Reference is made to the reasons given by the domestic authorities when rejecting their applications for confirmation of their status as Polish nationals.

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