Resolving Administrative Cases Concerning Child Under the Foreign Custody of Same-Sex Persons Without Violating National Principles on Filiation as the Ratio Decidendi of the Supreme Administrative Court (NSA) Resolution of 2 December 2019
Authors: Mostowik Piotr 
Published: February 2023

The paper discusses the ratio decidendi of the resolution of 2 December 2019 of 7 judges of the Supreme Administrative Court (Polish title: Naczelny Sąd Administracyjny) and in particular the arguments presented by the Court in addition to the operative part of the resolution concerning the inadmissibility of issuing a Polish birth certificate with a content that is contrary to the fundamental principles of the national legal order. The author demonstrates the actual law-making impact of this resolution on the Polish normative state and the possibility of dealing with the child’s case in other administrative proceedings. The Court has comprehensively addressed the situation of a child under the custody of same-sex couple who has foreign documents (issued under a foreign law). In the statement of reasons the Court explained, among other things, what should be the practical consequences of the resolution, also for facilitating the process of obtaining the child’s identity card in separate administrative proceedings in this case (and similar processes, such as assigning the Polish Resident Personal Identification Number [PESEL]). The merits of the resolution become fully apparent after reading its statement of reasons which, together with the operative part, depict the totality of issues which were the subject of administrative and judicial proceedings and which constitute the “life issues” of the child and its custodians. Referring to Anglo-Saxon terminology, the key passages thereof may be regarded not so much as obiter dicta, but as an element of the ratio decidendi for the adopted resolution and the answer given as regards the related issues under examination. In the statement of reasons, the Court first mentioned that transcription brings about the issue of a Polish vital (birth) record which, in terms of its probative value (Article 3 of the Vital Records Law), does not differ from a vital record created as a result of registration of a legal event. It is not possible to enter two women as parents of a child in the Polish register of vital records by transfer of foreign vital records by transcription as it would violate the fundamental principles of Poland’s national legal order. The Court noted that it is only the mother and the father that may be the parents of a child under the Polish law and that the Polish law is applicable in this case pursuant to Article 55(1) of the Private International Law due to the citizenship of the child. At the same time, the Court expressed a reservation that Article 104(5) of the Vital Records Act may not be interpreted to mean that the issue of an identity document or assigning the Polish Resident Personal Identification Number (PESEL) to a Polish citizen is dependent upon transcription of a foreign vital record by authorities which is impossible purely on account of the fact that the said of foreign birth certificate cannot be transcribed in Poland. The further reasoning of the Court is of essence for the dealing with such an administrative case (and similar cases) of the child (item 8): “In the provisions on transcription, the lawmaker has introduced a probative requirement that applies in other proceedings, i.e. in the proceedings for the issue of a passport and Polish Resident Personal Identification Number (PESEL). When interpreting Article 104(5) of the Vital Records Act, reference should be made to the negative effect of the proceedings on transcription for the proceedings mentioned in this legal provision”. Thus, the Court took notice of the broader context of the case and pointed out that in the legal regulations on transcription, the lawmaker has introduced probative requirements applicable in other administrative proceedings. What’s important for proceedings other than national registration of civil status, the Court added that the accepted interpretation of Article 104(5) of the Vital Records Act may not lead to a situation where a Polish citizen is denied the Polish Resident Personal Identification Number (PESEL) or an identity card due to the entry of two women as parents in a birth certificate issued abroad. In such case, according to the explicit words of the Court, the proceedings in these specific administrative cases may be finalized by a positive decision. For this purpose, instead of a national birth certificate which cannot be issued, the authorities may recognize the probative value of foreign civil status documents (according to established for over a decade interpretation of Article 1138 of the [Polish] Code of Civil Procedure). The Court has rightly noted that that there is no need for a far-reaching probative requirement (i.e. the way of proving maternity or paternity), which admittedly has been described in the Vital Records Act, but in fact refers to other administrative proceedings regulated under other legislative acts (such as proceedings for issue of an identity card or assigning a Polish Resident Personal Identification Number [PESEL]). A positive administrative decision on an identity card may therefore be issued following the general rules of proof, i.e. without the need for transfer by transcription, but on the basis of a foreign document confirming that the child was born to a Polish citizen. Thus, there is no need for additional proceedings for the issue of a national birth certificate (by transcription), since it is not necessary to prove the substantive legal premises for a positive effect of dealing with administrative matters of the child. Despite the negative message that might prima facie follow from the operative part of the resolution (such as the inadmissibility of birth registration in the country and issuing a national birth certificate with same-sex persons in place of mother and father), the arguments presented in the statement of reasons for this resolution also – and perhaps above all – have numerous positive consequences. The statement of reasons for the resolution contains explicit guidelines that the child’s fundamental “life issues”, such as the issue of an identity card, may be dealt with a positive effect, all while the orde public in terms of the forum’s filiation law is not violated. In the form of postscripta were mentioned: opinion the Advocate General of the CJEU issued on 15 April 2021 (case C-490/20, VMA v. Stolichna Obsthina, Rayon Pancharevo) and the ruling of European Court of Human Rights given on 18 May 2021 (case of Valdís Fjölnisdóttir v. Iceland, application No. 71552/17). Both of them were somewhat anticipated in the discussed Resolution of Polish Supreme Administrative Court (NSA).