October 09, 2026
By Alina Tryfonidou
The issue of the cross-border recognition of parenthood established between a child and two persons of the same sex in States which allow joint legal parenthood by same-sex couples has come to the fore in Europe in the last decade or so. The question has concerned both of Europe’s supranational courts – the CJEU and the ECtHR – which have, however, approached it from different angles. In its judgment in A.P. and R.P. v. Poland, delivered on 2 July 2026, the ECtHR found that Poland’s refusal to register the foreign birth certificate of a Polish child born to a same-sex couple violated the child’s right to respect for private life under Article 8 ECHR and amounted to discrimination on the basis of the parents’ sexual orientation, contrary to Article 14 ECHR read in conjunction with Article 8. The judgment is an important development in the protection afforded to the children of same-sex couples. At the same time, the Court’s highly fact-specific approach leaves important questions unanswered. In particular, this piece argues that the Court’s reliance on the family’s residence abroad when rejecting the claim of an interference with the applicants’ family life risks ignoring the possibility that non-recognition may itself affect where a rainbow family is able, in practice, to establish and enjoy its family life.
The case concerned the refusal of the Polish authorities to register the UK birth certificate of R.P., who was born in London in 2014 to a same-sex couple, A.P. and E.K., two Polish women living in the UK. A.P. gave birth to R.P., whose UK birth certificate identified A.P. as his mother and E.K. as his parent. Both A.P. and R.P. are Polish nationals.
Soon after R.P.’s birth, A.P. applied to the Polish Consulate in London for a Polish passport for her son. The application was ultimately left unprocessed because she had not produced a Polish birth certificate for the child. A.P. subsequently applied to the Civil Status Registry in Poland to have R.P.’s UK birth certificate registered. The application was rejected on public policy grounds, as Polish law did not allow two persons of the same sex to be established as a child’s joint legal parents. That refusal was upheld on appeal. A.P. maintained that a Polish birth certificate was necessary in order for her child to obtain a Polish passport, but her cassation appeal before the Supreme Administrative Court was likewise dismissed on the ground that registration of the birth certificate would contravene the fundamental principles of the Polish legal order. Having exhausted the available domestic remedies, A.P. (the first applicant), acting also on behalf of R.P. (the second applicant), lodged an application before the ECtHR.
The Court began by examining the applicability of Article 8 ECHR. It held that the relationship between two women and the child they were raising together constituted ‘family life’ (para. 77) and reiterated that ‘private life’ encompasses important aspects of personal and social identity, including the legal parent-child relationship (para. 78).
The Court distinguished the case from S.-H. v. Poland, which concerned citizenship and surrogacy and in which the applicants had failed to demonstrate serious practical consequences arising from the Polish authorities’ decision to refuse recognition (para. 81). In the present case, R.P.’s Polish citizenship was undisputed. The question was instead whether Poland could refuse to register his foreign birth certificate and thus give effect domestically to the parent-child relationship established in the UK (para. 82). The Court also considered important that the refusal was expressly connected to the parents’ sexual orientation and the protection of the traditional family model (para. 83). Although R.P. had acquired Polish citizenship at birth, he had been unable to obtain Polish identity documents or a passport and had avoided being effectively rendered stateless only because his British citizenship was subsequently confirmed (para. 84).
On the merits, the Court – in line with its earlier approach in the surrogacy case law – drew a distinction between the applicants’ family life and the child’s private life. It found no violation of the right to respect for family life (para. 122). The applicants had not demonstrated actual obstacles to living together as a family resulting from the Polish authorities’ decisions (para. 120). They lived in the UK and had no concrete plans to move to Poland and, accordingly, the potential difficulties resulting from the refusal did not exceed the limits permitted under Article 8 ECHR (para. 121).
The Court reached a different conclusion in relation to the child’s private life. While the refusal had no material impact on the birth mother’s (i.e. A.P.’s) private life since her relationship with the child remained legally recognised in their State of residence (para. 130), it created sufficient legal uncertainty concerning the child’s identity and civil status to constitute an interference with his right to respect for private life (para. 131). In assessing whether that interference was ‘necessary in a democratic society’, the Court emphasised the child’s best interests, including the importance of legally identifying those responsible for his upbringing and ensuring a stable legal environment (para. 140). Since legal parentage concerns a fundamental aspect of personal identity, Poland enjoyed a reduced margin of appreciation (para. 140).
The domestic authorities had, in the Court’s view, given insufficient consideration to the consequences of their decisions for the child, focusing instead on public policy and the formal impossibility of entering a woman as the child’s ‘father’. The resulting inability to obtain Polish documents placed the child in substantial legal uncertainty (para. 142). Although protecting the ‘traditional family’ may constitute a legitimate aim, the Court stressed that the concept of family is evolving and that protection of the ‘traditional family’ cannot justify failing to protect children raised by same-sex couples. A child’s legal status must be safeguarded irrespective of the parents’ sexual orientation or family structure (para. 145). The Court also attached importance to the absence of an alternative mechanism under Polish law for recognising (or (re-)establishing) the parent-child relationship (para. 147). It accordingly found a violation of Article 8 ECHR in respect of the child’s private life.
Finally, the Court also found a violation of Article 14 ECHR read in conjunction with Article 8 as regards the child. The difference in treatment was based solely or decisively on the circumstances of R.P.’s birth into a same-sex family and on his parents’ sexual orientation, a distinction which the Court considered unacceptable under the Convention (para. 160).
The non-recognition of parent-child relationships between children and their same-sex parents is by now a well-documented problem in Europe, which has occupied alike the Council of Europe and the EU institutions (see, for instance, here, here and here). It already attracted judicial attention in the EU context in 2021, when the CJEU held in V.M.A. (and confirmed by Order in K.S.) that, although EU law does not require Member States to amend their family laws to allow same-sex parenthood to be established in their territory, Member States must recognise familial ties lawfully established in another Member State to the extent necessary to enable Union citizens to exercise their free movement rights under EU law (for analysis of the ruling see here and here).
The question arising under the ECHR is nonetheless potentially broader. Rather than requiring recognition of a parent-child relationship only to the extent necessary for a particular purpose, the Convention may require recognition that secures the continuity of that relationship as a matter of legal status. The question, then, is to what extent a State must recognise the continuity of a parent-child relationship lawfully established abroad where its own family law does not permit two persons of the same sex to be established as a child’s joint legal parents? As will be argued in this piece, A.P. and R.P. v. Poland provides an important, but still cautious, answer to this question.
To understand the limits of that answer, A.P. and R.P. v. Poland should be contrasted with A.D.-K. and others v. Poland, an application raising the same question but declared inadmissible. A.D.-K. and others v. Poland also concerned a same-sex couple living in the UK whose child’s British birth certificate identified both women as her legal parents. However, in this case the child was a British national and did not have the nationality of the State where recognition was sought. The Polish authorities refused to register the British birth certificate on essentially the same public policy grounds as those invoked in A.P. and R.P. v. Poland. The Court nonetheless concluded in A.D.-K. and others v. Poland that the consequences of that refusal were insufficiently serious to engage Article 8: the family lived in the UK where the parent-child relationships were legally established, had never resided permanently in Poland, and had no imminent plans to relocate there. As a result, the legal and administrative consequences of non-recognition in Poland remained largely theoretical or indirect.
The Court’s different conclusions in the above two cases suggest that it attaches considerable importance to the existence of a sufficiently concrete link between the child and the State from which recognition is sought, and to the practical consequences which non-recognition has for the child. Unlike the child in A.D.-K. and others v. Poland, R.P. was a national of the State refusing recognition, and that refusal directly affected his ability to obtain identity documents demonstrating his Polish nationality and placed his legal status in Poland in a precarious position. A.P. and R.P. v. Poland can therefore be read as pointing towards an emerging obligation under Article 8 ECHR to protect the continuity of a child’s legal identity and status where a parent-child relationship has been lawfully established abroad and non-recognition by the child’s State of nationality has concrete consequences for that child (for a discussion of this point see here).
This is, without a doubt, an important development. Yet, it also demonstrates the cautious, case-by-case nature of the Court’s approach. Rather than establishing a general obligation to recognise parent-child relationships lawfully created abroad, the Court focuses on the specific circumstances of the case and on the consequences of non-recognition for the particular applicants, whilst requiring a sufficiently concrete link between the child and the State from which recognition is sought. In its surrogacy case-law, such a link appears to exist where recognition is sought in the State of residence of the family, whereas A.P. and R.P. v. Poland and A.D.-K. and others v. Poland indicate that the child’s nationality alone may suffice, even in the absence of residence in that State.
Such an approach has the advantage of allowing account to be taken of the circumstances of each case. However, as Judge Chablais stressed in his partly concurring and partly dissenting Opinion (para. 13 of the Opinion), the applicability of Article 8 cannot be denied ‘in a general manner’ merely because the applicants live and develop their private and family life in a foreign jurisdiction.
This latter point is particularly significant in relation to the Court’s treatment of the argument that there was an interference with (both of) the applicants’ family life. The Court considered that there had been no violation of this aspect of Article 8, because the family lived together in the UK, where their relationships were legally established, and had demonstrated no concrete intention to move to Poland. Yet, this reasoning risks being somewhat myopic and circular: if residence is relevant in determining the practical consequences of non-recognition, the Court should also be sensitive to the possibility that the legal impossibility of having a family relationship recognised in a particular State may itself influence a family’s decision whether to live there. This is pointed out clearly by Judge Krenc in his partly concurring and partly dissenting opinion, where he noted that using the family’s principal residence in the UK as a justification for finding no interference risks resorting to ‘circular reasoning’, since it may penalise the applicants for a situation which arises directly from the domestic authorities’ impugned refusal of recognition (para. 23 of the Opinion). In particular, a same-sex couple whose family relationships will not be fully recognised in a State may have compelling reasons not to relocate there. The fact that they consequently remain in a State in which their family is legally recognised should not, as such, be treated as demonstrating that non-recognition in another State has no meaningful effect on their family life.
This is especially so where, as in Poland, the problem goes beyond the mere refusal to transcribe a foreign birth certificate. As Judge Chablais emphasised, drawing on the principles established by the Court in its 2019 Advisory Opinion regarding surrogacy, what is problematic from the perspective of Article 8 ECHR is ‘not the refusal of automatic transcription of the parent-child relationship’, but rather ‘the practical consequences of this refusal, in view of the absence of any possibility to create such a relationship under Polish law, through adoption or other judicial procedures’ (para. 18 of the Opinion, emphasis added). What matters, therefore, from a Convention perspective, is whether the legal system provides any effective means of protecting an existing family relationship and the identity and legal status of the child.
The Court’s decision also suffers from another, related, limitation. In line with its surrogacy case-law concerning the cross-border recognition of parent-child relationships, the Court’s finding of a violation in this case is centred on the child. Although such an approach is understandable, as the emphasis placed on children’s rights (rather than on the rights of their parents) may be more ‘palatable’ for States, it provides an incomplete examination of the interferences at issue. As Judge Krenc pointed out, the Polish refusal also interfered with both applicants’ right to family life (Opinion, paras. 20-24). In particular, the Court’s conclusion that there had been no such interference because the family lived together in the UK, where their familial ties had been legally established, and had no concrete plans to relocate to Poland (para. 121), fails adequately to account for the consequences of the refusal itself. As argued above, the knowledge that their legally established family ties would not be recognised in Poland may itself have discouraged or effectively prevented the applicants from establishing and enjoying their family life there. The fact that they had built and continued to lead their family life in the UK should therefore not have been used as a basis for concluding that the Polish refusal did not interfere with their right to respect for family life.
A similar limitation exists also in relation to the Court’s treatment of discrimination. Although the Court acknowledged that there had been a difference in treatment on the ground of the first applicant’s sexual orientation (para. 158), it found no violation of Article 14 taken in conjunction with Article 8 in respect of the first applicant, or in respect of the child’s right to family life. In reaching that conclusion, the Court essentially relied on its earlier finding that the refusal had created no practical difficulties in the enjoyment of the applicants’ family life and had had no impact on the first applicant’s private life, while also observing that the applicants had largely reiterated their submissions under Article 8 (para. 159). The Court thus gave only limited consideration to the discriminatory dimension of the refusal, notwithstanding that the domestic decisions were expressly based on the fact that the child had two female parents and on the authorities’ understanding of the ‘traditional family’. Moreover, insofar as its rejection of the discrimination complaints concerning family life rested on its earlier conclusion that there had been no interference with that aspect of Article 8, it reproduced the shortcomings of that analysis rather than independently engaging with the discriminatory implications of the refusal.
One final point to note is that A.P. and R.P. v. Poland also bears interesting similarities to the CJEU’s judgment in V.M.A. Nonetheless, the two courts approach the issue through different angles: Luxembourg through free movement, with human rights considerations operating as limitations on Member States’ freedom to refuse recognition; Strasbourg through an exclusively human rights perspective. Moreover, the obligation established in V.M.A. is functionally limited: recognition is merely required for the purpose of enabling the child and the parent who is a Union citizen to exercise rights deriving from EU law. Conversely, the ECtHR appears to have approached the question from a more general perspective, as a matter of status continuity rather than simply one of functional recognition for specific purposes. Yet, the combined reading of A.P. and R.P. v. Poland and A.D.-K. and others v. Poland suggests that, for the moment, Strasbourg will continue to examine the connection between the child and the State concerned and the concrete consequences of non-recognition in the specific circumstances of the case closely. This case-by-case approach, however, leaves considerable uncertainty for rainbow families as to when they may successfully rely on the ECHR to secure cross-border recognition of their child’s parentage.
A.P. and R.P. v. Poland establishes an important principle: a State’s refusal to give effect to a parent-child relationship lawfully established abroad between a child and their same-sex parents may violate the child’s right to respect for private life where it creates legal uncertainty concerning the child’s identity and civil status. Yet, read together with A.D.-K. and others v. Poland, the judgment points towards a cautious, case-specific approach, dependent on the child’s connection with the State concerned and the concrete consequences of non-recognition.
The judgment leaves important questions unresolved. In particular, the Court’s conclusion that there was no interference with the applicants’ family life fails to take into account the possibility that non-recognition may itself discourage or prevent a family from residing in the State concerned, while its limited examination of the related discrimination claims leaves the discriminatory implications of such non-recognition insufficiently explored. A.P. and R.P. v. Poland thus takes a significant step towards recognising a broader obligation under the ECHR to secure the continuity of parent-child relationships lawfully established abroad, although the precise scope of that obligation remains to be determined.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The blog is run as an inter-university collaboration amongst the Dutch-language universities of Belgium. Associated research groups are the Human Rights Centre at Ghent University, the Centre for Government and Law at Hasselt University, the Leuven Centre for Public Law at KU Leuven, the Law and Development Research Group at the University of Antwerp and the Vakgroep Publiekrecht at the Vrije Universiteit Brussel.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
