Writen by Evangelos Trimmis in law-clinic.eu
A new Council of Europe draft puts the procedure for determining a child’s nationality in the spotlight. Existing guidance already shows why the answer cannot rest on a missing passport or a guess about ancestry.
A child is born, receives a birth certificate and grows up in a country that has known them for years. Yet when the family asks for a passport or recognition of nationality, the answer is uncertain. One authority points to the nationality of a parent. Another asks for proof from a foreign consulate. The consulate wants a corrected civil-status record. Meanwhile, the child has no settled answer to the basic question: which state considers them its national?
This is not always a gap in the substantive law. It can be a gap between legal entitlement and the procedure needed to establish it. A child might already possess a nationality under the law of a parent’s state, even without a passport. Equally, a possible route to applying for nationality does not necessarily mean the child presently possesses it. The applicable foreign law, the recognition of parentage and the actual operation of the law must all be examined.
On 22–23 September 2026, a Council of Europe working group completed a draft revised Recommendation on the nationality of children. According to the Council of Europe, it includes guidance on child-sensitive procedures for determining nationality and statelessness. The draft is due to be examined by the European Committee on Legal Co-operation in November, before possible adoption by the Committee of Ministers. It is therefore a developing proposal, not an adopted European rule.
There is already a published basis for discussion. The Council of Europe’s Compendium of promising practices on access to nationality for stateless children, adopted in 2025, describes the need to consider relevant evidence, expert and parental statements, foreign legislation as applied in practice, and an appropriate standard of proof. It discusses cooperation with foreign authorities, while recognising that such contact can raise protection concerns in some cases. Its examples show that different states assign different roles to public authorities and families in resolving uncertainty.
The distinction is practical. If an official asks a parent to obtain a foreign passport, the first question should be whether the child is legally eligible for that passport. If a foreign authority refuses to issue a document, the reason matters: a missing translation, an unresolved parentage record and non-recognition as a national are different conclusions. A careful decision must say which of those conclusions the evidence supports.
Children face a particular burden when the necessary records depend on adults, foreign administrations or events that occurred before they were born. They cannot correct an old birth entry, reconstruct a parent’s history or compel a consulate to answer. A procedure designed for children should account for those limits while still testing the evidence rigorously.
The solution is not to assume that every undocumented child is stateless. It is to make the inquiry visible and reviewable: identify the states with a genuine legal connection to the child; establish the relevant acquisition rules; examine parentage and civil-status records; document reasonable attempts to obtain an answer; and give reasons for the resulting decision. If an authority says another nationality exists, it should identify the law and facts on which that conclusion rests.
The forthcoming recommendation may sharpen European guidance. For now, its greatest value is to draw attention to a question national systems cannot indefinitely avoid: who takes responsibility for determining a child’s nationality when the available records do not agree?
Sources: Council of Europe, final working-group meeting (September 2026); Council of Europe, Compendium of promising practices (2025).