The politics of registering children: a second look at legal identity for children

In this blog I take a second look at legal identity for children in light of South Africa’s recent proposals to refuse to issue birth certificates to children born in South Africa to foreign parents. I look at the new proposals which have attracted much criticism and consider attempts elsewhere to do the same. The impact of restricting birth registration on the basis of the nationality of the child’s parents is likely to have a negative impact for generations to come.  

I wrote in my previous blog generally about birth registration and the international law on legal identity for children. Legal identity is both an intrinsic right and a gateway to accessing other rights. It is also the building block to a fuller and more complex legal identity as children grow. In my previous blog, I considered the impact of not having a legal identity on the access to human rights guarantees, full citizen participation and on the risk of statelessness for children who were not registered at birth and who are missing the first essential building block of a legal identity.

 

Legal identity from birth

For legal identity to have maximum positive impact for an individual, it needs to be provided from birth. Legal identity should not be made conditional on citizenship of the state or the status of the parents ¹, but should be available to all children, as required by Article7 of the Convention on the Rights of the Child.

In other words, legal identity milestones, such as birth registration, should be made available to all children, regardless of whether or not they (or their parents)are citizens of the state in which the child is born. A birth certificate should also be made available to children born within a state, even if their parents are not lawfully resident in that state.  

 

Birth registration: new proposals in South Africa

It is a shame then thatSouth Africa, in the week that the world was celebrating Universal Children’sDay ² announced that it is planning to do just the opposite.  The South African government has published a white paper proposing changes to its nationality laws. The white paper proposes new regulations under the Births and Death Registration Act to allow South Africa’s Home Affairs Department to discontinue birth certificates for foreign children born in South Africa ³. Instead, children of non-South African citizens will be provided with a confirmation of birth certificate ⁴. This confirmation can then be used by the non-South African citizen to return to his or her country of citizenship or nationality in order to register the child’s birth there.  The consultation period on the proposal ended on 16 November 2018.

It is not yet known whether the government will listen to arguments made by a number of human rights lawyers and organisations ⁵ that denying children of foreign nationals the right to register their child’s birth or to be issued with a birth certificate goes against the South African Constitution and international law on children’s rights ⁶.  The proposed changes will have particularly onerous consequences for children of asylum seekers and refugees, abandoned children, orphaned children and the children of stateless individuals ⁷.

 

South Africa’s obligations under international law

International law is clear.  Birth registration is important and is a universal human right acknowledged in Article 6 of the Universal Declaration of Human Rights. Article 24(2), of the International Covenant on Civil and Political Rights 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 ⁸ and the Convention on the Rights of Persons with Disabilities ⁹ also contain provisions relating to birth registration.  When it comes to regional treaties, this include the African Charter on the Rights and Welfare of the Child (1990)confirming allegiance to Article 7 of the CRC, and to which South Africa is a party. 

South Africa’s commitment to registering children at birth should not be ignored, especially when the perceived ‘threat’ of providing a birth certificate to a foreign child may not be a threat at all:

“The misconception that registering a child’s birth confirms nationality can put vulnerable children at additional risk. Birth registration is the permanent recording of a child’s existence and does not confer nationality. Nationality is acquired through the operation of a State’s nationality law. The two processes are distinct. Nonetheless, birth registration helps to prevent statelessness because it establishes a legal record as to where a child was born and who his/her parents are, elements of information key to proving entitlement to nationality.” ¹⁰

 

Other attempts to restrict birth registration for children of foreign parents

South Africa is not the only instance where attempts have been made to restrict the issue of birth certificates to children of foreign parents. In 2013, Israel also announced a similar change in its laws to stop issuing birth certificates to children of foreign parents ¹¹. Although it does not look like this change has been adopted and implemented ¹², following criticism of the plans ¹³.

In Texas, although not official policy, it seems that local authorities had been creating barriers for parents to collect their child’s birth certificate ¹⁴. In the case of Texas, the target of the measures were children, whose parents were not legally in the US. This is despite the fact that, having been born in the US, those children are automatically US citizens. As the mother of two children who has struggled to obtain legal identity for her children explains:

“Yes, I’m here illegally. But I’m the one who committed the crime, not them.”

It was only after a legal challenge from parents who had faced obstruction, that their claim was settled by the state of Texas. The state agreed that it would expand the types of documents that parents can present as evidence ¹⁵.

 

Impact for generations

The heightened risk of statelessness in cases where birth registration is not available or is denied, are clear. As discussed in my last blog, without a legal identity, it can be very difficult, if not impossible, for a person to establish or evidence citizenship. The South African proposal ignores the impact the new law will have on risk of an unregistered child becoming stateless.  As UNHCR points out:

“Without a birth certificate, children face immense barriers to basic services and human rights, such as education, health and social services. We urge the Department of Home Affairs not to pursue this amendment” ¹⁶

It also ignores the difficulties already faced by the stateless parents of children who, under the new law will not be able to obtain a birth certificate from another country. How can parents who are stateless take back their child to the country of their citizenship or nationality to have the birth registered there?