The construction of a right to birth registration in European human rights law: the case of G.T.B. v Spain

By Dr Sarah Trotter

On 16 November 2023, the European Court of Human Rights (‘the ECtHR’) handed down its judgment in G.T.B. v Spain. It is a judgment that constitutes a significant moment in the development of the right to respect for private life under Article 8 of the European Convention on Human Rights (‘the ECHR’), as it does for the protection of rights – and specifically, children’s rights – under the ECHR more broadly. For firstly, it interprets the right to respect for private life as including a right to birth registration, and secondly, it locates this interpretation in an account of identity. In the comments that follow, I will speak to these aspects and reflect on the ideas of identity, obligation, compensation, and responsibility that are, on my reading, expressed in the judgment.

The facts of the case  

At the heart of this case was Mr G.T.B.’s complaint about the way in which a delay in the processing of a request for his birth to be registered had affected his life and his sense of identity. The request itself had come late – in 1997, for a 1985 birth – but it had then taken almost nine years for the authorities to approve it; and Mr G.T.B. argued that the effects of not having an identification card in the interim had been far-reaching and far-ranging, impacting his private life and mental health as well as his capacity to engage in education, obtain a job, and pursue his goals.

How this had come about was as follows.

Mr G.T.B. was born in Mexico in August 1985. A month later, a devastating earthquake struck Mexico, and Mr G.T.B.’s mother, Ms X, applied to be repatriated to Spain with her two children (Mr G.T.B., then aged two months, and his three-year-old brother). Mr G.T.B.’s birth was not registered either prior to their departure for Spain or upon their arrival there.

In September 1997, Ms X went to the La Laguna Civil Registry and requested a late birth registration for both of her children. It was decided, the following year, that the births could be registered. However, Ms X was unable to provide the documents that were required to prove that the children had been born in Mexico, and a subsequent attempt to summon Ms X and her children for an alternative form of recognition of the relationship between her and the children failed, because it was not possible to find Ms X at the address that she had given in the original application. The registration process was accordingly suspended.

In May 2002, Ms X returned to the La Laguna Civil Registry, where she repeated her request for a late birth registration for both of her children. A new procedure for registration was initiated, but this too came up against the reality of the lack of documentation, and this was not resolved until the Central Civil Registry agreed in 2005 that Ms X could give recognition of the children before a judge. This was done in May of that year, and in March 2006, the judge at the Central Civil Registry decided that the relationship between Mr G.T.B. and his mother, Ms X, had been proved. The late birth registration of Mr G.T.B. and his brother was accordingly approved, and this registration occurred a month later. In May 2006, Mr G.T.B. was issued with an identification card.

In domestic proceedings initiated in 2014 – and involving a State liability claim for damages caused by the delay in the issuing of the identification card, followed by judicial administrative proceedings appealing against the rejection of that claim and then appeals against that judgment too – Mr G.T.B. argued that the lack of an identification card in the years up to 2006 had ‘prevented him from accessing the job market, obtaining a driving licence, or completing his education’ (para. 57). Before the ECtHR he subsequently complained of the suffering that he had endured as a result of being undocumented for so many years, alleging breaches of Article 3, Article 8, and Article 2 of Protocol No. 1.

The ECtHR classified Mr G.T.B.’s complaint as an Article 8 one, although it also acknowledged that birth registration was related to ‘the potential realization of other rights’ more broadly (para 85). Mr G.T.B. made two arguments in this context. The first was that the authorities had failed to initiate or pursue the birth registration procedure for him, and that they should have done so given that he had been a minor and under the guardianship of the public authorities at various times. The second was that the delay in the registration process had been caused by ‘the constant and unnecessary obstacles created by the public authorities in requesting documents and information known to be unavailable’ (para 94).

Judgment

In applying the general principles of Article 8 to this case, the ECtHR began by emphasising what was at stake here: Mr G.T.B.’s sense of identity and his ability to go about his everyday life. ‘[O]bstacles in obtaining birth registration and lack of access to identity documents resulting from those obstacles can have a serious impact on a person’s sense of identity as an individual human being’, the Court stated, adding that ‘the lack of birth registration and valid documents can cause significant problems in a person’s daily life, in particular at the administrative level…and educational level’ (para 118). This problem was constructed as being one of ‘[n]ot being able to establish details of a person’s identity’; and this, the Court considered, interfered with personal autonomy and was ‘directly related to the right to respect for private life’ (para 118).

There was not only, however, a connection between birth registration and Article 8; rather, and taking into account the emphasis that international bodies including the UN Committee on the Rights of the Child had placed on the importance of birth registration, the Court considered that ‘the right to respect for private life… should be seen as including, in principle, an individual’s right to have one’s birth registered and as a consequence, where relevant, to have access to other identity documents’ (para 118, emphasis added). The Court went on to refer to the way in which actual access to a birth certificate and related documents would be subject to the individual fulfilling the requirements stipulated by domestic law, and States, it said, had a wide margin of appreciation ‘concerning the appropriate means of securing the right to birth registration and access to identity documents’ (para 119). However, providing that the relevant requirements were met, the State was obliged to issue birth certificates and to enable access to the associated identity documents.

Mr G.T.B.’s complaint here, the Court continued, was about the way in which the State’s requirements in relation to birth registration had been applied to his case. The Court considered in this respect that ‘some adaptability in the standard procedures for the delivery of identity documents may be required when the circumstances make that imperative in order to safeguard important interests protected under Article 8 of the Convention, such as an individual’s right to have his birth registered and obtain, on that basis, access to identity documents’ (para 122). Here, the question was not one of whether the registration process itself was adequate, but rather one of whether the public authorities were under a positive obligation to ensure that a fair balance was being struck between the competing interests and that Mr G.T.B.’s ‘right to have a recognised identity’ was not being violated (para 122).

The Court returned, at this juncture, to consider the way in which lack of birth registration and access to related identity documents could have ‘important repercussions…for any person’ (para 123). This case, it continued, ‘[concerned] a minor who started manifesting psychological disorders in 1996, at the age of eleven…, and was diagnosed with various psychiatric conditions in 2002…, and whose only available parent failed to act diligently in securing the registration of his birth’ (para 123). Not having identity documents ‘had, to at least some extent, an impact on [Mr G.T.B.’s] ability to pursue academic studies and training; it also made him unable to secure stable job contracts, which affected his ability to organise his private and family life; and it contributed to increasing his feelings of anxiety and distress’ (para 123). Given this, ‘it was incumbent on the authorities to act in the best interests of the child whose birth registration was being sought in order to compensate for the mother’s failings and to prevent the child from being left unregistered and hence, without identity documents’ (para 124). There was accordingly a positive obligation on the authorities ‘to act with due diligence in order to assist the applicant to obtain his birth certificate and his identity documents, to ensure effective respect for his private life’ (para 124). This obligation had arisen from May 2002, at which point ‘it became clear that the applicant’s mother would not be able to produce documents other than those she had submitted’ and ‘it must have been plainly obvious for the relevant authorities that positive action was needed to ensure that the applicant did not remain without a registered identity’ (para 127).

The authorities, the Court considered, had not taken sufficient and adequate action to discharge their positive obligation in this respect. Two points were of particular note: firstly, that ‘four years elapsed between the moment when it became apparent to the public authorities that the applicant’s mother could not facilitate any further documents to register her son’s birth, and its actual registration’, and secondly, that ‘there was no justification to delay until May 2005 the “recognition”, which seemed to be the only way to prove the mother-son relationship and, hence, to proceed with the issuing of a birth certificate for the applicant, in the absence of any relevant Mexican documents’ (para 129). There had, accordingly, been a violation of Article 8.

Comments

The significance of the Court’s judgment in G.T.B. v Spain lies especially in the way in which it involves the construction of a right to birth registration. The Court goes beyond recognising birth registration as something that is connected to the realisation of a range of rights; and it also goes beyond seeing birth registration as something that is merely connected to the right to respect for private life. It says, rather, that ‘the right to respect for private life… should be seen as including, in principle, an individual’s right to have one’s birth registered and as a consequence, where relevant, to have access to other identity documents’ (para 118, emphasis added). And it grounds this way of seeing the right to respect for private life in an account of identity.

A sense of this account emerges firstly in the interpretation of the right to respect for private life itself. In conceiving of this right as including a right to birth registration, the Court emphasised the effect that a lack of birth registration – and access to related documents – could have on a person’s sense of identity. The sense was that such was this effect – and the possibility of this effect – that registration, and access to related documents, needed to be conceived of as a matter of right. But this construction of birth registration was underpinned by a further claim too: a claim about the importance of a sense of identity, and about the need to be able to develop a sense of identity. The Court emphasised the effects that lack of registration and access to identity documents could have on this sense, and in this emphasis there was an echo of the way in which lack of access to information about biological origins and childhood has been conceived of elsewhere in the case law. The cases of Gaskin v UK, Odièvre v France, and Godelli v Italy are emblematic of this, the former involving a conceptualisation of information about childhood as a matter of self-understanding, and the latter two involving a conceptualisation of information about origins as a matter of personal development. I have elsewhere written about the way in which these conceptualisations reflect and relate to a deeper underlying vision of childhood and selfhood in European human rights law; but the point that I would like to emphasise here is the way in which the three cases entail a conceptualisation of the information at issue as information that is fundamental to personal identity. A lack of access to this information is, by extension, cast in each case as a lack that is liable to be an obstruction, a hindrance – as a lack that stands in the way of a need to know. (And the question, in each case – and recently examined again in Cherrier v France – becomes one of how to balance the need to know, the right to know, against the other interests and rights at stake.)

A trace of this same narrative is present in G.T.B. v Spain, albeit that this time the lack is in relation to registration and access to identity documents. Here, the Court similarly conceived of the need articulated – a need to be registered – as being a matter of Mr G.T.B.’s sense of identity. Registration was, moreover, closely connected to recognition, meaning that what was at issue was Mr G.T.B.’s ‘right to have a recognised identity’ (para 122). The Court’s view of this relationship between legal recognition and a sense of identity shaped its account of the positive obligation that the authorities had to assist Mr G.T.B. in obtaining a birth certificate and identity documents. Running throughout was an emphasis on the effect of the lack of these both on Mr G.T.B.’s sense of identity; and it was the account of this effect – which was also, as noted above, an account of the importance of the sense of identity – that seemed to justify the existence of the positive obligation here.

But underpinning the articulation of the positive obligation on the authorities was something else too: the Court’s view of the responsibility of Ms X, Mr G.T.B.’s mother, in this context. Early on in the judgment, it alluded to the way in which ‘in normal circumstances’ (para 120), parents were primarily responsible for organising the birth registration of their child under Spanish law. Later, it noted that Mr G.T.B. was someone ‘whose only available parent failed to act diligently in securing the registration of his birth’ (para 123). And then, more sharply, it stated that ‘in the present case it was incumbent on the authorities to act in the best interests of the child whose birth registration was being sought in order to compensate for the mother’s failings and to prevent the child from being left unregistered and hence, without identity documents’ (para 124, emphasis added). This was followed up by a reference to ‘the applicant’s mother’s inactivity’ (para 126).

The question that I have about this is a question about the function of this construction of Ms X as having failed in this context. The effectsof this framing are clear: it brings ideas of compensation and responsibility to bear on the construction of the right to birth registration and the account of identity in which it is rooted; and it generates a normative account of the responsible parent (who would, the Court suggests, have organised registration). But what of the form of the framing itself? What is the function of the construction of the authorities as capable of acting in a way that would indeed ‘compensate for the mother’s failings’ (para 124)? Does it somehow further justify their intervention here? What, moreover, is the relationship between the conceptualisation of action ‘to compensate for the mother’s failings’ and action ‘to prevent the child from being left unregistered and hence, without identity documents’ (para 124)? Could the latter not have been enough? Would it not have been enough? The notion of compensation seems to serve as an undertone to the articulation of the obligation on the authorities, which is cast as being not only about the responsibility of the authorities to act because not doing so would leave the child unregistered, but as also bound up in the ‘failings’ of the mother to act (para 124). Alternative framings – involving, for instance, thinking about assisting not only the applicant but also the mother in the attempt to register the birth – were missed by the Court. And the possibility of thinking about the reasons and causes underpinning ‘the mother’s failings’ in the first place, the meaning of the ‘failings’, and the very construction of this all as involving her ‘failings’ (para 124), was also overlooked.

Conclusion

Writing in her book, Children and the European Court of Human Rights (2021), Claire Fenton-Glynn has described the child’s right to respect for private life as one that is ‘still…under construction before the Court’. The Court’s judgment in G.T.B. v Spain further illustrates this point in my view. On the one hand, it very clearly represents an important step in the development of the right to respect for private life and, particularly, in the development of the child’s right to respect for private life. It interprets the right to respect for private life as including a right to birth registration, and it locates this in an account of the importance of a sense of identity – an account that, in turn, speaks to the broader question of the construction of the category of personal identity in European human rights law. At the same time, the judgment raises a number of questions, particularly about the conceptualisation of compensation and the way in which a normative vision of the responsible parent is articulated in this context. There is scope for debate about these questions – need for debate about these questions – so that the full implications of the judgment can be grasped.

Acknowledgements: I would like to thank Kai Möller and the editor, Merel Vrancken, for their comments on an earlier draft.