Childhood Statelessness i European Courts: An Avoidable Crisis
3.
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Methodology
Data explored in childhood statelessness cases include venue, litigant choice, a child’s age, factual/procedural history, application of law, and third-party involvement. These aspects of litigation combine to
affect both the legal and the practical outcome for children. To address the Research Questions, this paper
employed a qualitative legal research methodology encompassing both analytical and empirical components. Data was gathered from primary resources such as courts’ decisions and rules, as well as relevant
legislation. The data was given additional color through selective, unstructured interviews with legal practitioners experienced with the protection of child rights. The goal was to analyze this data and determine
what lessons could be learned in the context of childhood statelessness litigation.
3.1
Court Data Collection Method
3.1.1
Step One: Initial Analysis of Cases
Court decisions and rules from 17 European and international jurisdictions were collected online from databases and court websites. Most of the court decisions analyzed may be found in the Statelessness Case
Law Database (SCLD), managed by the European Network on Statelessness (ENS). The “Childhood statelessness” filter under “Key aspects” of the SCLD produced a return of approximately 50 cases from both
international and national venues. Other relevant cases were discovered through literature review and interviews. The cases range in date from 1999 to 2023. Of all the cases collected, data from 44 were analyzed
for the purposes of this research.
Data gathered from these 44 cases included: jurisdiction, date of decision, litigants, age(s) of the child(ren)
involved, relevant laws, legal topics, notable mentions regarding child participation (or lack thereof ), outcome, and any third-party involvement. These cases were then categorized as positive or negative. For the
purposes of this research, a positive outcome meant the decisionmakers found in favor of the child applicant(s) and/or the state was forced to rectify its error(s) and child statelessness was avoided. A negative
outcome meant statelessness resulted or remained, and/or produced a state of limbo in which the child
faced ongoing uncertainty or additional, protracted litigation.
Data from the 14 cases with a negative outcome (Annex A) were then organized by the following characteristics: multiple litigants, presumed or original nationality associated with litigants (if applicable), stateless
outcome, court acknowledgment the CRC, court acknowledgment the ECHR, court acknowledgment of
a child’s right to be heard, court acknowledgment of the child’s best interests, if litigants were infants or
toddlers, third party involvement, and if the child was a victim of an arbitrary administrative or governmental error. Data captured from 30 cases with a positive outcome (Annex B) included the following: multiple
litigants, presumed or original nationality associated with litigants (if applicable), court acknowledgment
the CRC, court acknowledgment the ECHR, court acknowledgment of a child’s right to be heard, court acknowledgment of the child’s best interests, if litigants were infants or toddlers, LGTBQ+ rights issues, issues
of surrogacy, and third-party involvement.
3.1.2
Step Two: Targeted Analysis of Jurisdictions
Of the 44 cases, the focus was narrowed to eight cases that stood out as arguably unjust or as model decisions of fairness to children that led to protected or secured nationality (Annex C). The cases chosen were
a mix of both domestic and international venues, and sometimes included both a positive and negative
result from the same venue. These jurisdictions included: the CRC Committee, Ireland, the Netherlands,
Serbia and the UK. The details of these jurisdictions were then compared, taking into account: legal specifics unique to each state and/or court, relevant court rules, and relevant domestic law. To capture this data,
additional research was conducted using official court and government websites, Lexis and Westlaw databases, and Google searches. Data from this analysis was brought into consideration in the findings when