16 August 2022, Alberto Perez Cedillo

What happens when a child’s birth has not been registered at the Civil Registry of any country from Spanish law perspective?

After we were born, our parents went to the Civil Register and entered our name and surname, giving evidence of our existence in this world and in the country we were born. All of us consider ourselves as existing persons. In Law, it is not as simple, because of the term “legal personality.” This legal personality is the one that gives us rights and obligations before the Law and the consideration of “persons.”

So, is the registration in these Civil Registers mandatory to be considered as a person (with legal personality) by the Law? Let us take a look at a Spanish case.

A Cameroonian woman gave birth to her daughter in Algeria and they travelled to Spain, where the authorities found out that this child was not registered anywhere (nor in Cameroon or Algeria). The fact that she was not registered as Cameroonian nor Algerian, left this girl in legal limbo. What personal law was applicable to her? The law of the maternal country or the law of the child’s place of birth? Is she Cameroonian or Algerian?

We must note the existence of the Convention on the Rights of the Child, signed in New York City in 1989. This Convention gives children all over the world, among other rights, the one to be registered after they are born, in Article 7.

Article 29 of the Spanish Civil Code states that “birth determines personality”, and Article 30 of the same Law says that “Personality is acquired at the moment of live birth, after the entire detachment from the mother’s womb.” Under Spanish Private Law, the fact of entering the birth of a child into the Civil Register, to be considered a “person” is not mandatory.

Under Spanish Law, all of us, registered or not, are persons with “legal personality”, therefore, we exist. If any foreign law makes it mandatory to be registered to be considered as a person, in Spain, that law would not be applicable. Instead, Spanish law would be the one applicable under the “interest of the child.”

Although the Convention on the Rights of the Child does not establish which State has the responsibility for the registration, the fact that this child was not registered anywhere and now is in Spain, and Article 7 of the Convention on the Rights of the Child of 1989 establishes the registration of the children as mandatory, because of the superior interest of the child, Spain should provide the child with the registration with all the consequences, such as a Spanish passport, something that can bring more dignity to this child’s life.

The Civil Register Law (Law 20/2011, of 21st of July), states that it is necessary to register before this authority, all the events that are mandatory and enforceable to Spanish Law, even if the event took place outside Spanish territory (Article 9).

The child has now been registered on the Spanish Civil Register, giving her Spanish nationality, and her rights and obligations before the Spanish Law. The relevant Court order in this case is Auto del Juzgado de Primera Instancia núm. 2 de Montilla (Córdoba), de 15 de octubre de 2021.