This judgment, *A.P. and R.P. v. Poland* (application no. 1298/19), concerns the refusal of Polish authorities to transcribe a foreign birth certificate of a child born to a same-sex couple. The applicants, a Polish mother and her son, challenged the refusal to register the child’s birth certificate, which listed two women as parents, arguing it violated their rights under Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. The Polish authorities had relied on the “public policy” clause, asserting that the registration of a same-sex parentage would contradict the fundamental principles of the Polish legal order, which defines a family as a union between a man and a woman. The Court found that while the refusal did not violate the applicants’ right to family life, it did constitute a disproportionate interference with the second applicant’s (the child’s) right to respect for his private life. The Court concluded that the authorities failed to conduct a sufficient analysis of the child’s best interests and that the refusal, based on the parents’ sexual orientation, created a situation of legal uncertainty for the child. Consequently, the Court found a violation of Article 8 and Article 14 in conjunction with Article 8 regarding the second applicant’s private life.
### Structure and Provisions
The decision is structured into the following key sections:
1. **Preliminary Remarks:** The Court addresses the Government’s objections regarding victim status, exhaustion of domestic remedies, and the “significant disadvantage” threshold, ultimately joining these to the merits and dismissing them in relation to the child’s private life.
2. **Article 8 (Private and Family Life):** The Court distinguishes between the applicants’ family life (finding no violation) and the child’s private life (finding a violation). It emphasizes that the child’s identity and legal status were negatively impacted by the legal uncertainty created by the refusal.
3. **Article 14 (Discrimination) in conjunction with Article 8:** The Court examines whether the refusal was based on the parents’ sexual orientation. It finds that the distinction made by the authorities was based “solely or decisively” on the circumstances of the child’s birth into a same-sex family, which is unacceptable under the Convention.
4. **Just Satisfaction:** The Court awards the second applicant 5,000 EUR for non-pecuniary damage.
**Changes compared to previous versions:** This judgment reflects an evolution in the Court’s approach by explicitly distinguishing this case from previous surrogacy-related cases (like *S.-H. v. Poland*). It moves away from a strict “consequence-based” test by acknowledging that the reasons for the refusal—specifically the parents’ sexual orientation—are intrinsically linked to the applicants’ private lives, thereby engaging the Convention more robustly.
### Main Provisions for Use
The most important provisions for legal practitioners and observers are:
* **Best Interests of the Child:** The Court reaffirms that in all decisions concerning children, their best interests must be a primary consideration. The interests of a child cannot depend solely on the sexual orientation of their parents.
* **Legal Uncertainty:** The Court establishes that a state’s refusal to recognize a parent-child relationship legally established abroad, which leaves a child in a state of “legal uncertainty” regarding their identity and access to citizenship-related documents, constitutes a disproportionate interference with the right to private life.
* **Non-Discrimination:** The judgment clarifies that distinctions based “solely or decisively” on the sexual orientation of parents are not acceptable under the Convention.
* **:** This decision is highly relevant for Ukraine and Ukrainians, as it reinforces the protection of children’s rights and identity within the European legal space, particularly for families residing abroad or in cross-border situations where legal recognition of parentage is contested. It underscores that states must provide an effective mechanism to recognize parent-child relationships established in other jurisdictions to protect the child’s best interests.
