Too old to be a ‘foundling’? – International standards and comparative analysis – F. Nationality Laws of 142 States Often Use Child of Unknown Parents Many of the existing nationality laws drafted in the above-mentioned four UN official languages, in particular French, Spanish and Russian, use the terms equivalent to ‘(newborn, infant, child or minor) whose parents are both unknown’, rather than the term used in Article 2 of the 1961 Convention in their respective versions, to express the concept equivalent to the term ‘foundling’. The same applies to nationality laws drafted in languages other than the UN official languages, including in Article 1(2) of the Italian nationality law of 1992 that states ‘figlio di ignoti’ (a son or daughter of unknown [parents]) and fubo ga tomo ni shirenai ko (a son or daughter both of whose parents are unknown) in Article 2(iii) of Japan’s Nationality Act. G. Categories of Cases Recognised as Foundlings The next step is to provide a brief overview of legal precedents around the world where children were granted nationality based on foundling provisions,85 in order to examine what it means to be ‘foundlings’ or of ‘unknown parents’, and whether every person of unknown parents always manages to be found in the territory when being a baby or a young child as commonly expected. Abandoned babies: The most typical category of cases granted nationality based on foundling provisions worldwide, based on actual precedents, consists of babies of unknown parents and birthplaces who have been abandoned on streets, in front of religious institutions or hospitals, and in ‘baby boxes/hatches’ and so on. Indeed, as stated above, the term ‘abandoned child’ is often used interchangeably with the term ‘foundling’. There are also common scenarios where the babies are considered to be of ‘unknown parents’ while their births in the territory are firmly established, as in categories (ii) and (iii) below. Babies born of anonymous birth scheme: In a relatively small number of countries, ‘anonymous birth’ or ‘confidential birth’ systems allow the birth mother to choose to give birth without revealing her identity on the child’s birth record or certificate or visà-vis the civil registration authorities. In France, women have long had the established choice to give birth anonymously, at least since around 1780, especially when it involved extramarital children, stigmatised at the time86. In France and also in Italy and Germany, where an ‘anonymous/confidential birth’ regime is institutionalised, some hundreds of cases occur every year in which the biological mother of a child born in a medical or other facility is factually and to some extent ‘known’ to the medical personnel but legally ‘unknown’ to the competent authority for administering nationality laws. Some states explicitly provide for the application of the foundling provision to anonymous or confidential birth in their nationality laws.87 Babies left behind in hospitals: In states where anonymous birth is not institutionalised, nationality has been granted based on foundling provisions where birth mothers do not necessarily ‘abandon’ their children on the street or baby hatches, but abscond after delivering their children at medical institutions, making it impossible to ascertain the mothers’ identity or the fathers’ identity. Such cases are observed, for example, in Hungary, Romania, and Japan (notably in a Supreme Court judgement containing an in-depth analysis of the meaning of ‘unknown-ness’ of parents).88 Despite the above, there are many other categories of children who are often found at much older ages than babies or infants, and whose parents are still unknown. 85 For more details and other (rarer) categories of cases, see sec.4.3., Kaneko-Iwase, Nationality of Foundlings (n 2) 118-158. 86 Nadine Lefaucheur, ‘The French “tradition” of anonymous birth: the lines of argument’ 18 International Journal of Law, Policy and the Family (2004) 319-320. 87 See Kaneko-Iwase, sec 4.3.10, Nationality of Foundlings (n 2) 147-152. 88 Baby Andrew case, Minshu Vol 49, No 1, Supreme Court judgment of 27 January 1995 (Heisei 7 nen) 56. See sec 5.6.3 of Kaneko-Iwase (n 2) 205-218 for detailed analysis of this case and subsequent caselaw. European University Institute 22