2019 Statelessness & Citizenship Review 1(2) REASONING The Court’s analysis in the 2014 judgment is more thorough than usual, taking each point (legal basis, legitimate aim, proportionality) and subjecting it to exceptionally extensive scrutiny. 54 The couple had argued that the entire family’s rights had been violated. 55 The Court made a special point of examining the parent’s and children’s rights separately under the rubric of proportionality, 56 and only finding a violation of the children’s rights. 57 The implication is clear: the parents were responsible for the situation, while the children, whose best interests were at stake, were blameless. Although statelessness was not at issue, the Court indirectly considered the matter, explicitly recognising that nationality is an element of a person’s identity and that the uncertainty facing the children about their French citizenship contributed to the finding of an art 8 violation. 58 It seems clear that if the children had been at risk of statelessness, their case would have been even stronger. As extensive as the 2014 judgment is, the 2019 advisory opinion leaves open some questions related to the risk of statelessness among children born through surrogacy arrangements. Notably, the Court’s finding — that it is enough to allow the intended mother to adopt her child — might not guarantee that a stateless child can acquire a nationality, especially if adoptive mothers cannot pass on their nationality to their adopted children. 59 Furthermore, the Court did not clarify what happens when the child has no biological link with either intended parent. The Mennesson twins’ biological father was also their ‘intended father’. What if that had not been the case? CONCLUSION This was not a case about statelessness. It was fundamentally about the right of children to a legal identity. It was also, more broadly, about the idea that children should not be held responsible for their parents’ actions. The Court made this clear by concluding that only the children’s rights had been violated. It is an approach that can apply to many other situations, in particular migration. Given the urgency of birth registration and the clarity of the 2014 judgment, the fact that the 2019 advisory opinion was necessary at all is worrying: the children’s birth registration should have been resolved soon after the 2014 ruling, while they were still children. In effect, they had to wait until they were almost fourteen years old for the European Court of Human Rights to find that they had a right to have their births registered in France — an essential aspect of establishing their French nationality. And yet, a full five years later, the case was still ongoing. At eighteen years-old, the children are still engaged in a legal battle to determine their legal relationship with their mother. All of this is hardly compatible with their human right to have their births registered ‘immediately’. 60 54 55 56 57 58 59 60 See generally Mennesson (n 1). ibid 5–6 [25]. ibid 9 [50], citing ECHR. ibid 26 [101]. ibid 22 [89]. ibid. International Covenant on Civil and Political Right, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 24(2); CRC (n 8) art 7(1). 348