23 Marysia’s adoptive father, a Polish national, expresses his exasperation with the process of securing a nationality for her – in spite of the fact that she was born in Poland, has never left the country and has been living with her Polish foster family since she was a toddler. For all intents and purposes, Marysia was a foundling: abandoned at the hospital shortly after her birth, neither of her biological parents’ identities has ever been traced. Yet, because hospital staff who assisted with the birth reported that Marysia’s mother was Romanian – this unverified fact subsequently being recorded on her birth certificate – the Polish authorities assumed that she had Romanian nationality. Romania, however, also refused to recognise her as a national because there was no proof of her purported familial ties to a Romanian citizen. It was not until Marysia was 17 that her statelessness was resolved and then only thanks to a discretionary procedure at the behest of the Polish President.174 This case illuminates the challenges that can arise in securing a nationality for a child who is born or grows up in what could be described as less traditional circumstances. Children who have been abandoned and whose parentage is unknown, children who have been adopted across an international border, children who are born from international surrogacy arrangements – they may all find themselves exposed to the threat of statelessness, with legal safeguards either absent or falling short. FOUNDLINGS That foundlings may be left without a nationality, because of the lack of familial ties or even of evidence of birthplace, is one of the oldest statelessness problems which states have sought to address by concluding international agreements. The 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws already set out a safeguard for children of unknown parents and foundlings.175 Later, a similar rule was incorporated in article 2 of the 1961 Convention. It states: “ A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that state”. In Europe, 44 out of the 45 states whose legislation was analysed for the purpose of this report make some provision to grant a nationality to foundlings or children of unknown parents. Only Cyprus fails to do so. Moreover, some of Europe’s foundling provisions are generously formulated, applicable to any child whose parents are unknown, without an age limit. This is the case in Latvia, for instance, where orphans left under extra-familial care in Latvia can also benefit from access to nationality.176 Yet, problems may persist in practice, also in those countries which do have a safeguard in place – as the case of Marysia demonstrates.177 As noted in previous ENS research, the Hungarian experience offers one good practice example that could be replicated to deal with such scenarios: “a new provision was adopted in the law, providing that an abandoned child whose mother did not prove her identity upon giving birth, nor within 30 days following the birth, shall be considered a foundling”.178 In Italy too, the Ministry of Interior confirms that “foundlings” includes all cases where the parents are unknown from a legal point of view because the parent(s) abandoned the child without recognising him or her – even if the parent(s) are not, strictly speaking, unknown from a biological point of view (i.e. the birth has been witnessed). Italian nationality is acquired at the moment of registration at the Population register Office concerned.179 A second difficulty relating to the enjoyment of nationality by foundlings is the question of what happens if the identity of the child’s parents is later discovered: must nationality be forfeited, even if it results in statelessness? Under some laws in Europe, the answer seems to be yes. In Romania, if either or both parents are identified before the child reaches the age of 18 and found to be non-nationals, citizenship is lost as of the date that filiation is established. The law apparently – and falsely, in some contexts – assumes that the child will necessarily have acquired a foreign nationality by virtue of the establishment of filiation and no safeguard against statelessness is offered.180 The same is true in Croatia, although the cut-off date is the child’s fourteenth birthday;181 and in Poland, if the parents are found, within a year.182 The Committee on the Rights of the Child has expressed its concern at these policies, which undermine the child’s enjoyment of the right to a nationality as protected in the CRC and are arguably against the best interests of the child concerned.183 A safeguard against statelessness must therefore be built into such legislative provisions. This is easily achieved, as the example of Albania demonstrates. Article 8(1) of the Law on Albanian Nationality provides that “if the child’s parents become known before the child reaches the age of 14, and they are of foreign nationality, Albanian nationality can be relinquished at the request of the legal parents, provided that the child does not become stateless as a consequence of this action”.184 ADOPTION Cases of inter-country adoption can also raise problems when it comes to children’s enjoyment of the right to nationality. When a child is adopted across an international border – i.e. by adoptive parents who hold another nationality – the nationality of the child will usually follow that of the adoptive parents. If the country of the child’s original nationality provides for automatic loss of nationality upon foreign adoption, however, while the country of nationality of the adoptive parents does not automatically or immediately allow for acquisition of nationality, statelessness can result. Again, international safeguards have been developed to ensure that this scenario is avoided.185 Yet, a number of European countries maintain provisions in their law which could lead to loss of nationality by a child who is adopted abroad, even if this leaves him/her stateless.186 Romania is one such state. If the adoption of a child is cancelled or annulled and the child is still under age and is residing abroad, he or she will be considered to have never been a Romanian citizen – even if statelessness results.187 This represents a clear gap in the law which stands at odds with