The right start – children and the right to a legal identity

The recent Universal Children’s Day on 20 November raised the issue of legal identity and access to basic rights for children. Children’s Day celebrates the date UN General Assembly adopted the Convention on the Rights of the Child (CRC). In this blog I want to use the Convention’s provisions on legal identity and identity documents as a starting point to consider the wider issues of how legal identity, or the lack of it, can impact children.

Legal identity provisions in the Convention on the Right of the Child

‘Legal identity’ tends to refer to official, generally state-issued, documents which include basic information about the owner’s identity, their status and, sometimes, the child’s legal relationships.  More often than not, there is no one single document that serves as the legal document of a person.  Legal identity documents are accrued throughout life, usually starting with birth registration and the issue of a birth certificate. As a person’s life evolves and become more complex, other documents are issued, such as a passport, a drivers’ license, a marriage certificate, and, finally, a death certificate. The birth certificate is key, however, since it usually documents age, familial relationships and the place of birth of a person ¹.

Given the importance of legal identity, it is not surprising that the Convention on the Rights of the Child ² has two Articles which specifically deal with legal identity and on the right to be registered after birth as the firsts step towards building that legal identity.  The first, Article 7, requires that children be registered immediately after birth.  They have the right from birth to a name and to acquire a nationality.  Article 7(2) stresses the duty of parties to the Convention to ensure the implementation of those rights and their obligations, especially if the child would otherwise be stateless.

Article 8 sets out the right of the child to an identity, including nationality, name and family relations and the duty of the state to respect that right and to refrain from unlawful interference.  Any denial of that right requires the state to provide assistance and protection and to re-establish a child’s identity.

Legal identity in international law and the SDGs

The rights set out in the Convention are supported by a number of international instruments and agreements and by the Sustainable Development Goals.

For example, the human right to birth registration and the right of everyone to recognition everywhere as a person before the law is acknowledged in Article 6 of the Universal Declaration of Human Rights. The right in relation to children, specifically, is recognised in Article 24(2), of the International Covenant on Civil and Political Rights, which states that every child shall be registered immediately after birth.  More recent human rights treaties, such as the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families ³ and the Convention on the Rights of Persons with Disabilities ⁴ also contain provisions relating to birth registration.  Regional treaties include the African Charter on the Rights and Welfare of the Child (1990) confirming allegiance to Article 7 of the CRC.

Sustainable Development Goal 16.9 is the goal to provide legal identity for all, including free birth registrations. The proposed indicator for that goal is squarely aimed at giving children the correct start in life by measuring (and increasing)

“the percentage of children under 5 years of age whose births have been registered with a civil authority, by age” ⁵

I have written in more detail on the detail of SDG 16.9 here.

In light of the Convention on the Rights of the Child, the other international and regional treaties mentioned above and the SDGs, it is clear that the right to legal identity, starting with birth registration for children, is considered a human right. It has intrinsic value, too, since recognition of existence can be seen as integral to human dignity.  And, as discussed in the next section, it is a right which is considered a gateway to accessing other human rights ⁶.

The importance of birth registration for children and having a legal identity from birth

There is still some work to be done when it comes to ensuring that all children are registered at birth and can start to shape their legal identity as they grow. According to the UN, as at 2018, globally, 73% of children under 5 have had their births registered, but the proportion is less than half (46%) in sub-Saharan Africa. That percentage, globally, is up from 71% in 2017. But birth registration in Sub-Saharan Africa has not budged from 46% in 2016 ⁷.

As the UN explains in relation to birth registration:

“Registering children at birth is a first step in securing recognition before the law and safeguarding individual rights and access to justice” ⁸

In practical terms the lack of birth registration and a legal identity for a child has huge impact on the quality of their lives. For example, it can impact on the ability to enrol at school at the right age, or it can prevent a child from being employed, in breach of labour laws. It is one way to help the battle against child marriages and forced marriages of girls, human trafficking and the sale of children ⁹.  It can help a child, especially an orphan, from being disinherited by its relatives.  A legal identity can ensure that where a child has contact with the law, they are given the correct level of protection and are not treated legally, as well as practically, as an adult ¹⁰.

From the point of view of the state, having a grasp of its child population can improve effective planning and the adequate provision of services for children.  NGOs, along with state agencies, often rely on birth certificates and other legal identity records in population registries to help trace families and identify a child’s origin in the event of disasters or national emergencies ¹¹.  In those instances, a birth certificate can also help prevent abductions and illicit adoptions. In terms of access to education, without birth registration and proper birth records, it is impossible for states to have a complete list of potential school-age children. This, it has been argued, can make the concept of compulsory education meaningless ¹².

The link between children’s legal identity, birth registration and the risk of statelessness

The link between the first step of legal identity – birth registration – and the risk of statelessness is clear. As the joint document on the urgent need to address stateless children’s rights drafted by UNHCR and Plan International explains:

“Not all children born without birth registration are stateless; but for those born in certain situations (for example, to parents from different countries, in a migratory setting, to refugee or asylum seeker parents or in border areas), lack of birth registration can cause statelessness.” ¹³

Without a legal identity, it can be very difficult, if not impossible, for a person to establish or evidence citizenship. This is especially in states with the jus soli principle of nationality (where a child born in the state is entitled to citizenship by virtue of being born there and regardless of the nationality of its parents).  But even in jus sanguinis states (where a child’s citizenship status depends on the nationality of its parents) birth certificates are important, especially the birth certificates of the parents. The child’s own birth certificate will be needed in the future too – if it wishes, as an adult, to pass nationality on to his or her children.

The way forward

To make a real impact, especially in least developed countries, in rural areas, and where the cost of administrative compliance is too high for many people, we need new ways of doing things.

Ways forward include integrating birth registration and the provision of health services to make birth registration more accessible for children and their parents and to simplify what is often a complex and multi-step process. This can mean having registrars in health institutions. Or it can mean using community health workers to not only provide health care but also register births and young children ¹⁴.

Another option is to focus on digital biometrics rather than paper legal identity. Benefits of digital identity include lessening the risk of losing important paper documents and using technologies to overcome geographical distances between more centralised document issuing authorities and communities and individuals in need of identity documents.  See my previous blog on the virtues (and shortcomings) of using blockchain technology for legal identity.

Difficult, but not insurmountable

Ultimately, concerted action is needed from states to facilitate the acquisition of legal identity by individuals within their borders, especially when it comes to children. And despite the numbers, and the recent regressive moves by some states ¹⁵, the picture is not so bleak.

For example, as of 2015, it was estimated that more than a half of Sierra Leone’s children were undocumented. But following the Ebola outbreak, a registration drive was started, including late birth registrations, with 41,166 birth registrations carried out and National Civil Registration Authority (NCRA) set up to tackle the task ¹⁶.

In terms of simplifying birth registration requirements and removing administrative barriers, such as requiring a range of documents from a child’s parents, Lebanon has taken a positive step forward and now accepts the Syrian family booklet as proof of parental identity and marital status when registering births. And in Bosnia and Herzegovina, civil registrars have started accepting refugee cards as IDs in completing the birth registration process ¹⁷

Small administrative changes, like simplifying processes and recognising the difficulties and obstacles parents might face in registering a birth, can start a child off in the right direction when it comes to building their legal identity as they go through life. It is true that some initiatives can be costly, ¹⁸ but many improvements can be achieved through better planning and changing ways of working, rather than expensive ID systems. Carrying out improvements will, no doubt, pose challenges for many countries. But with sufficient political will, those challenges may not be insurmountable.