Legal Vacuum or Legal Uncertainty in Strasbourg

On 2 July 2026, the European Court of Human Rights (ECtHR) delivered one decision and one judgment in two cases which, whilst resting on different facts, raised the same legal issue. The common thread between the two cases is that the children of two same-sex couples residing in the United Kingdom under a registered civil partnership were unable to obtain Polish identity documents, such as Polish passports, because their UK birth certificates were not transcribed by the Polish authorities. In both cases, A.D.-K. and Others v. Poland and A.P. and R.P. v. Poland, the applicants – in each instance two women in a British civil partnership – tried to have their child’s British birth certificate, which listed the birth mother as “mother” and her partner as “parent,” registered in the Polish civil status registry. However, the Polish authorities refused, citing public policy reasons. The Supreme Administrative Court eventually ruled that including two women as parents on a birth certificate would violate the core principles of Polish law.

A.D.-K and Others v. Poland and  A.P. and R.P. v. Poland both arose from a legal gap built into Polish law. Section 104(5) of the 2014 Law on Civil Status Records requires Polish citizens to transcribe a foreign birth certificate into the Polish register before applying for an ID, passport, or personal identification number (PESEL). Section 107(3) states the registrar must refuse transcription if it conflicts with Polish law. For the children in the two cases, this policy was triggered because their birth certificates named two women as parents. Children of same-sex couples thus find themselves caught between a mandatory gateway and a mandatory barrier: obliged to transcribe a certificate that Polish law refuses to transcribe.

One feature of these cases gives them significance beyond the procedures at the ECtHR. When the Polish refusals reached Strasbourg, transnational conservative organizations intervened in their support, arguing that biological filiation is the sole measure of a child’s best interests. The Court never ruled on those arguments. What follows, therefore, outlines not only how the legal vacuum – a situation in which a child’s parentage and legal existence are unrecorded in any State register – was shifted rather than eliminated, but also how a dispute over a child’s status could be resolved without debate. I will revisit this point at the end.

The Proxy War over The Child’s Best Interests

In A.D.-K and Others, the birth mother (S.D.-K) is a British national; her partner (A.D.-K), who has no biological tie to the child, is Polish. The daughter, L.D.-K., born in 2011, holds British citizenship. It remains uncertain whether she also has Polish citizenship because, under Polish law, citizenship is automatically granted at birth if at least one parent is a Polish citizen. However, obtaining official confirmation requires an administrative process that the family never started, despite the Polish authorities referencing this twice (§§ 15 and 19). The omission is less puzzling because L.D.-K’s only Polish parent is precisely the parent Polish law refuses to recognise, so that any confirmation application would have turned on the parent-child relationship whose registration had just been denied.  The family used the transcription route, and this untested citizenship was crucial for the Strasbourg Court (§ 73).

In A.P. and R.P., the mother (A.P.) and her partner (E.K.) are Polish; R.P., born in 2014, acquired Polish citizenship at birth. The mother applied twice for his passport but was unsuccessful. They speak Polish at home, spend time in Poland, and later R.P. was confirmed as a British citizen to avoid statelessness. They applied to the Myszków registry in July 2015 and their cassation appeal was dismissed in June 2018. Both cases were decided in Strasbourg on 2 July 2026: A.D.-K. and Others was inadmissible, but in A.P. and R.P., the Court held that Poland violated Article 8 and 14.

In A.P. and R.P., the Polish Government argued that the applicants’ claims were based on ‘hypothetical harm’ since their birth certificates didn’t affect daily life in Poland, and they already resided in the UK. R.P., the second applicant, automatically gained Polish citizenship through his mother. The case involved diverse interveners as well. In A.D.-K. and Others, groups like Fédération Internationale des Ligues des Droits de l’Homme (FIDH) and the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) argued that the best interests of children raised by same-sex couples lie in enjoying the same opportunities as children of married opposite-sex couples. In contrast, the European Centre for Law and Justice of conservative lineage, argued that the dual female parentage constitutes a “serious anomaly that causes injustice and suffering for the child”. Further, the Centre stated that the applicants were manipulating children’s rights for ideological and militant purposes, and that the “false reality” they had created – namely, that two women could be the mother of the same child – could not be established by law. Ordo Iuris added that marriage’s constitutional value links citizenship to the birth certificate transcription, which they see as unsupported by law.

One Threshold, Two Results

Before the ECtHR, the two families’ paths diverged sharply. In A.P. and R.P., the Court found a violation of the child’s right to respect for his private life under Article 8 of the Convention (and of Article 14, prohibiting discrimination, explained below). In A.D.-K and Others, the Court never reached that question. Thus, these two cases, which set the Article 8 threshold for children in same-sex partnerships, show how similar facts can lead to different legal results. In A.D.-K., the Court ruled that the Polish authorities’ decisions did not leave the child in a “legal vacuum” because the threshold was not met. In A.P. and R.P., the Court described the situation as one of “legal uncertainty” affecting the child’s identity, with judges divided on how serious this was. Judge Krenc argued it was more than mere discomfort, while dissenters saw it as hypothetical future harm. The Court found the refusal of the transcription in A.P. and R.P. caused legal uncertainty impacting essential identity aspects, crossing the admissibility threshold and deeming the interference disproportionate. The opinions showed how narrow that line is, with some judges advocating broader concerns beyond discomfort.

In the A.D.-K. case, the Court used a consequence-based approach, asking if refusing to transcribe the birth certificate would have serious consequences for the applicants. It noted the child had never had Polish citizenship, so there was no real harm, and the refusal was mostly theoretical and indirect. The Court stated authorities didn’t leave the child in a legal vacuum, so Article 8 didn’t apply. Since the application was inadmissible, the Court didn’t assess the merits, public policy, or the child’s best interests.

In A.P. and R.P., the facts led to different results. Article 8 was engaged through a combination of two approaches (§ 84): the reason-based, as the refusal was grounded in public policy and the traditional family model – specifically, the parents’ sexual orientation (§ 83) – and the consequence-based, since R.P., a Polish citizen from birth, could not obtain a passport, identity card, or PESEL number, as Polish law forbade transcription (§ 142). Judges Wennerström and Derenčinović called this a “hybrid” and argued that the reason-based approach cannot reach the child, as the choice is his parents’ and “strictly personal” (§§ 13–14). The Court found that authorities failed to analyse his best interests, merely stating that a woman’s first name could not be entered as “father” and that Polish law gave no alternative recognition (§§ 142, 147). The refusal affected his identity and civil status, creating legal uncertainty (§ 144): a violation of Article 8, mainly due to “his birth into a same-sex family”, and of Article 14 (§ 160).

In this case, no violation was found related to four of the six alleged violations: the practical difficulties were prospective, as the family lived in the UK with no plans to move to Poland; there was no breach of the biological mother’s privacy, since her parenthood was recognized where she lived; and there was no discrimination concerning family life or the mother. The only violation was under Article 8, related to the child’s right to private life, due to the Polish authorities’ failure to perform a necessary best-interests-of-the-child analysis, leaving the child’s legal identity uncertain. This violation was also linked to Article 14 because the child was born to a same-sex couple.

Approaching the “vacuum” as a threshold applicable to each child is a strategy aimed at focusing on the child’s victim status rather than on a “defect” in Polish law. Therefore, in the remainder of this post, I will argue that rather than eliminating the vacuum, the Court relocated it – closing the vacuum for one child while reconstituting the vacuum for other children in similar situations.

Closing One Vacuum, Opening Two

With these two rulings, the Court did not eliminate the legal vacuum but rather shifted it. The first new vacuum is jurisdictional, and the second is remedial.

The jurisdictional vacuum is that Poland argued that the applicants should first have brought a constitutional complaint. The Court disagreed: although it has long treated the Polish constitutional complaint as an effective remedy under the Article 35 § 1, that is so only where the alleged violation flows from the direct application of a single provision that can be challenged as unconstitutional. Here the breach arose from a “convergence of ground” which means several provisions of the 2014 Law, the Family and Custody Code and the Private International Law Act read together through the public policy principle, so no single norm could be attacked (§ 70). The admission is striking: Strasbourg accepted that the wrong was systemic rather than statutory, and the domestic constitutional review would have been ineffective.

The remedial vacuum is the gap between the violation and remedy. Although R.P. won, the transcription issue remains barred, with no recognition mechanism. Instead of ordering a remedy under Article 46 ECHR, the Court limited itself to framing the child’s circumstances, doing so by operationalising a systemic dichotomy that appears related to the admissibility stage but actually concerns a broader issue unclear in the judgment. Viewing this case as a negative obligation – refusing recognition of a foreign parent-child relationship – obscures Poland’s lack of a recognition mechanism. The Court’s distinction between ‘family’ and ‘private life’ under Article 8 reflects this split. The broad margin of appreciation for moral issues and narrow margin for identity issues offer only a partial solution, focusing on the individual child rather than systemic legal issues. When public policy and family protections justified the wide margin, acceptance under “the rights and freedoms of others” made the margin tied to an abstract goal, as Judge Krenc noted.

Concluding Remarks: A Vacuum Relocated

Returning to the main argument, although the Court assessed the child’s best interests through the lens of a legal vacuum, it is still not possible to say that the legal vacuum has been closed.  Did the ECtHR resolve this gap by ruling that R.P.’s “invisible citizenship,” reflecting Judge Krenc’s comment that, although a Polish national, the child was “made invisible to the Polish legal order” (partly concurring opinion, § 8), which Poland never contested, constituted a violation? If compensation is a remedy, how can the vacuum be closed by itself? Although the Court stated during the admissibility phase that the legal problem lies not in the application of a single provision but in the convergence of different rules, the questions regarding the threshold and the legal vacuum remain unanswered.

This, however, is a precursor to a debate the Court does not wish to enter into. Analysing the arguments from transnational right-wing networks in the case files reveals that biological parentage is depicted as the only criterion for determining the child’s best interests. This appears to be a reflection of the debate Paul Blokker has described as “sacred versus profane.” While some rights are “sacred,” others are “profane” – that is, non-natural, deviant, militant, and merely individual desires. From a human rights perspective, the Convention has, in fact, long debated the child’s legal status and situation in such “culture wars”. In Marckx v. Belgium (1979) the ECtHR held that a child’s legal status cannot be diminished due to the circumstances of birth – a principle the Court extended to children born out of wedlock regarding inheritance rights (Mazurek v. France). In A.P. and R.P. this principle is now applied to children born into same-sex relationships, whose interests, as the Court put it, “cannot depend solely on the sexual orientation” of their parents (§ 145).

The central debate here shifts from the recognition of same-sex unions to the child’s civil status. However, the Court applies its “severity threshold” doctrine, and it triggers the “sacred versus profane” distinction to the child’s legal status as well. In doing so, the Court does not rely on legal arguments regarding nature or the family but instead categorises the child’s suffering as either “vacuum” or “discomfort” before the argument is even heard. Although the Court strategically avoided entering into this debate, the repercussions of the discussions surrounding “victim status” lead us to the “sacred versus profane” division. This debate begins at the court’s threshold, even before the merits are considered. For this reason, the debate over the “profane” category of “mere discomfort” and the “legal vacuum” is likely to continue.