Administrative court to rule on transcription of birth certificate of child raised in LGBT family

The Provincial Administrative Court in Kraków will hear a prosecutor’s complaint against the transcription of a foreign birth certificate in which two women are listed as parents. In October 2018, the Supreme Administrative Court dismissed held that this kind of transcription was admissible. The HFHR has entered its appearance and applied for a leave to intervene in the proceedings before Kraków’s PAC.

The case concerns the entry into Polish civil registry records of a child born in the United Kingdom. The UK birth certificate lists two Polish women as parents of the child. The Head of the Registry Office in Kraków has already refused to transcribe the birth certificate, invoking its incompatibility with fundamental principles of Polish legal order. The child’s mother challenged that decision and in October 2018 the Supreme Administrative Court ruled that the transcription of a birth certificate which identifies two mothers as parents is admissible. SAC overturned the unfavourable decision and the Head of the registry office needed to revisit the case. Finally, in December 2018, the Head of the registry office transcribed the child’s birth certificate in line with the judgment of the Supreme Administrative Court. Nevertheless, a prosecutor took the view that this decision violated Poland’s ordre public and challenged the transcription before PAC in Kraków.

In its judgment of 10 October 2018, the Supreme Administrative Court emphasised that a refusal to transcribe constituted a violation of children’s rights enshrined in such laws as the Constitution of the Republic of Poland, the Convention on the Rights of the Child and the European Convention on Human Rights. Referring to EU law and judgments of the Court of Justice of the European Union, SAC stated that the obligation to transcribe a birth certificate, carried out for the sole purpose of protecting rights of the child and certifying their identity, did not contravene the fundamental principles of the Polish legal system and the principles of public order. Accordingly, SAC ruled that transcription of the birth certificate was admissible.

The HFHR argues that it is impossible to reconsider transcription of the child’s foreign birth certificate from the public order perspective. These circumstances have been definitively clarified by SAC in the above judgment. The HFHR believes that the Head of the Registry Office and the Provincial Administrative Court in Kraków are bound by the legal assessment made by the Supreme Administrative Court. Repealing the birth record of a child would undermine the final and binding judgment of SAC, which also would be incompatible with Article 6 of the European Convention on Human Rights (which guarantees the right to a fair trial) and the principles of a democratic state ruled by law.

Moreover, the HFHR argues that impeding the transcription of a foreign birth certificate must be considered as a violation of rights guaranteed by the Polish Constitution and international law, including EU law.