09 Oct
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Birth registration and rights of the child

 

1 Introduction

Birth registration is defined as the ‘official recording of a child’s birth by the State’. It is also a lasting and official record of a child’s existence, which usually include the ‘name of the child, date and place of birth, as well as, where possible, the name, age or date of birth, place of usual residence and nationality of both parents.’

Birth registration is an internationally recognised fundamental right, it is recognised under Article 24 of the International Covenant on Civil and Political Rights (ICCPR), which states that ‘every child shall be registered immediately after birth.’ The Convention on the Rights of the Child (CRC) also stipulates that  

[t]he child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

In Africa, Article 6(2) of the African Charter on the Rights and Welfare of the Child recognises the right by stipulating that ‘every child shall be registered immediately after birth’.

Birth registration is not only a right by itself, it is also door to other rights. It provides measures of protection for children from age-related exploitation and abuse. By giving legal recognition to the existence of the child, it puts the foundation for the protection of legal rights.

Even though birth registration is an essential means of protecting the rights of the child ensuring the registration of all children at birth has been a challenge for many states.

This essay examines the link between the lack of birth registration and access to child rights. It also highlights the factors that impede children's access to birth registration, and how the absence of birth certificates impacts on the rights of children.

2 Birth registration and access to rights by children

For some birth registration may not seem as important as other rights and government obligations, and some might consider it no more than a legal formality. However, the implementation of the right to be registered at birth is vital and closely connected to the realization of other rights. The Human Rights Committee has also stated that Article 24(2) of the ICCPR which states that ‘every child shall be registered immediately after birth’ should be interpreted as

being closely linked to the right to special measures of protection, and that the main purpose of the obligation to register children after birth is to reduce the danger of abduction, sale of or traffic in children, or of other types of treatment that are incompatible with the enjoyment of the rights provided for in the Covenant

An effective birth registration is a basic instrument by which an effective government knows the number of citizens and plan social services like schools and health centres, in an effective way. Here under the relationship of the right of the child with birth registration and its contents are discussed.

2.1 Right to name, nationality and establishing family ties

The fact that the child’s name, sex, date and place of birth, and the name, address and nationality of both parents are incorporated in a birth registration establishes the existence of a person under law and ensures the right to a name, nationality and the right to know one’s parents. Moreover, it can also help to protect children against unlawful changes to their identity, such as changes of name or fabrication of family ties.

Without proof of identity, government officials may not have information about the existence of the person. Therefore, children who has no certified identity can remain hidden and unprotected, which exposes them for child trafficking and other criminal acts.

The fact that the place of birth of the child and identity of child’s parents is recorded, provides significant evidence to determine whether the child can obtain citizenship on the basis of place of birth or on the bases of descent. Here it should be noted that in some circumstances absence of birth registration can cause statelessness. For example, children born from migrant, asylum seeker or refugee parents might became stateless as a result of non-registration.

In addition, the information on birth registration helps to ensure the right of the child ‘to know and be cared for by his or her parents.’ Besides, it can be used to secure the child’s right to his or her origins by serving as a prove of relationship to parents, for example, children might be denied their right to inherit parental property just because they do not have sufficient evidence to prove their relationship with the deceased parents.

2.2 Rights and the role of birth registrations as a Proof of age

Birth registration plays a great role as a proof of age. It is a necessary first step towards protecting children from violation of rights. The fact that different international human rights instruments, humanitarian laws, criminal laws and family laws provide age specific special protections, makes proof of age a very important document for a child to benefit from the special protection.

It is difficult to challenge age related abuses and to claim age related rights without an effective registration system, be it in the context of illegal child labour, child trafficking, early marriage or military recruitment. In addition, the lack of reliable document which proofs age, makes it nearly impossible to prosecute offenders and to realise legal protections provided for children through different laws.

For example, International labour organisation (ILO) tries to ensure that children do not start working too young and be exposed to hazardous work environment by setting age at which children can legally be employed. Accordingly, the ILO Convention on the Minimum Age for Admission to Employment, forbids employing children who are below the age of 15. The other ILO convention on the Worst Forms of Child Labour, prohibits ‘engaging children aged below 18 years old in hazardous work or in the worst forms of child labour’.

The 1977 Additional Protocols to the Geneva Conventions, also protects children by prohibiting the recruitment and participation of children below the age of 15 in armed conflicts. Furthermore, with regard to international armed conflicts, the first Additional Protocol stipulates that in military recruitment of children from the age of 15 to 18, the oldest should be prioritized. Article 38 of the CRC has also incorporated the 15-age limit. In addition, different legal systems provide special protection for children in conflict with in the law.

Article 37(c) of the CRC, also stipulates that children should not be detained with adults or be treated like one legally and practically . There are also international and national laws in majority of countries which have stipulated the marriageable age as a right is 18.

Nonetheless, since it might be impossible to verify the existence of illegal child labour, early marriage, under age military recruitment or the fact that a child has been detained with adults without proving the age of the child nether of the above-mentioned age-related rights can be efficiently protected without proof of age. Which means, children without birth registration might remain unprotected and may not be able to claim the services and protections due to them.

Moreover, the fact that children without birth registration have little recourse before the law, exposes them for exploitation, abuse, and other violations of rights. For example, employers might hire children without birth certificate as cheap labourers. In such cases the violation might pass unnoticed and the perpetrator will escape prosecution.

The importance of birth certificate as a proof of age and identity does not end when the child reaches the age of maturity, the record is very much in need for education, employment,  obtaining passport, obtaining driving licence, democratic participation in a civil society, to be able to contest for Public office or marriage etc…

2.3 Access to basic social services

Birth registration is also a door for the realisation of socioeconomic rights. Without a document which proves identity, children might be incapable to access education, health care, and other social services provided by the government.

2.3.1 The right to health

The right to enjoy ‘the highest attainable standard of health’ is recognized under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), in addition Article 24 of the CRC, provides that states parties have an obligation to ‘recognize the right of the child to the enjoyment of the highest attainable standard of health’. Accordingly, states are also expected to pursue full implementation of this right. However, every year, millions of children are dying from preventable diseases before they reach the age of five.

Ineffective birth registration systems play a great role in this crisis. In many cases unregistered children are incapable to gate access to health care services including vaccination or have to pay more for those services than a registered child. In the other hand, an effective birth registration system can alert healthcare providers about the presence of children in need of vaccination and health care.

2.3.1 Right to education

The right to education is a right recognized under Article 28 of the CRC and Article 13 of the ICESCR. An effective birth registration system plays a great role in the realization of the right. Yet, in many countries, birth registration and birth certificate are required to benefit from the right.

In many countries birth registration is required in one way or another for the full enjoyment of the right. In some countries it is required for enrolling in school, which means unregistered child can be kept from exercising his or her right to education. In other countries, birth registration is required for educational scholarships; in others it is required to make advancement to secondary school. In such countries, ineffective birth registration system will affect the right to education of children.

3. Implementation barriers

Currently the births of a significant number of children go unregistered, and many of them are found in developing countries. Internationally, the births of approximately 230 million children who are under the age of five, have never been recorded  In Sub-Saharan Africa more than 70 per cent of children born every year are unregistered. Here the question would be given the obvious importance of birth registration, what is hindering the progress of registration. Below some of the implementation barriers are discussed.

3.1 Lack of Awareness

The first obstacle which contributes for the poor demand of this service is the lack of awareness about the value of birth registration. In most cases parents are not aware of their right to register their child and its importance till they are required proof of identity of the child by schools, health service providers or other authorities. Even in situations where the parents are aware of the right to birth registration they see it as legal formality, and neglecte it for other problems that are more instant and tangible as a result of lack of sufficient awareness about its benefit.

3.2 Political will and insufficient resource

One of the major barriers hindering the progress of birth registration is of political will. Basically, it emanates from lack of awareness of governments, politicians, and civil servants, about the critical role birth registration plays for the realisation of rights and for an effective government planning. As a result, governments do not play enough role in the promotion of birth registration in their respective countries.

Usually lack of political will is followed by inadequate financial allocations, which makes it difficult for the Government to treat birth registration with the priority that it deserves and this leads to institutional barriers. Without financial resource the responsible institutions will not be able to function effectively and efficiently in a way which promotes birth registration. Lack of political will can also result legislative barriers.

3.3 Legislative barriers

Though states have an obligation to take legislative measures in favour of birth registration, some states do not have a legislation which requires mandatory birth registration. Others do not have a comprehensive and detailed law regulating civil registration. Mostly they incorporate and issues of registration in the civil code or other related laws of the country, in a very general manner, which fails to cover the issue sufficiently.

In some of the countries where birth registration laws exist, the laws have not been reviewed for many years, therefor they are inadequate in terms of international law and do not match with the current social and cultural realities of the country. This poses practical barriers to civil registrations in general and birth registration in particular. In addition enforcement of such laws will be hindered by the failure of the law to recognize the culture and everyday realities of the people.

In some cases, the law ‘does not allow enough time for registration, given the geographical terrain and the availability of registration services’ moreover, some legislations impose fines if registration is delayed or late, which is clearly a disincentive and a challenge for families who can’t afford to do so.

3.4 Accessibility and cost 

In many countries, especially in developing countries, geographical and financial difficulties are the most tenacious challenges to the realisation of an effective birth registration.

Costs of birth registration can be incurred in two ways. First is the direct payment for registration which is payed directly to the service provider authority, as a fee for the registration service or as fine if registration is delayed or late. Such kinds of payments might not be affordable for poor families and payment of fine for delayed registration might discourage registration for a child once the initial period for registration has passed.

The other is the indirect cost, which results from inaccessibility of service providing offices. In many developing countries service providing authorities are not accessible in the rural areas, which means a person who lives in the rural parts of the country is expected to travel long distance to the town for the purpose of child registration. This causes the family to incur transportation fee and opportunity costs, such as the time spent away from work to travel. The above factors make cost of birth registration very expensive for many families, as a result ‘Children from the poorest families are two times as likely to be unregistered compared to children from the richest.’

3.5 Discrimination

In some countries access to registration is undermined by discrimination based on the child’s or the his/her parent’s sex, nationality, disability and other statuses. For example, in circumstances where the parents of the child are not nationals of the country and they are illegal migrants, refugees or asylum seekers, the child may be prevented from having access to birth registration rights. Moreover, such parents may fear to approach authorities to register their children because it might lead to their own detection by the authorities.

Gender based discrimination is also a barrier for birth registration especially in Countries with patriarchal nationality laws. Some countries allow only head of the house who is supposed to be male to register a child’s birth and others require the presence of the father or of both parents for the purpose of registration.  Such laws discriminate against mothers, and children might end up unregistered because the father did not acknowledge paternity or did not give his consent for the registration.  In such circumstances in countries with patriarchal nationality laws there is a possibility that the child will end up stateless if the father is a stateless person, or he didn’t acknowledge the child, since the mother will not be able to transfer hers.

Children with disabilities are often over-represented among those who are not registered at birth.  In most cases this happens due to the family’s reluctance to register them. As a result, many children with disability are rendered invisible to health, education and other social facilities.

3.6 Other obstacles

In addition to the above-mentioned reasons lack of economic development, lack of infrastructures, births taking place outside health facilities, traditional beliefs and taboos which are not supportive of birth registration, natural disasters, internal conflicts, war and other emergency situations can be mentioned as a challenge for the realisation of universal birth registration.

4. Conclusion and a way forward

Basically, it can be said that, birth registration has two main purposes. First it is part of a civil registration which gives legal recognition for the existence of a person and establishes family ties and traces major life events of the child and open the door for other rights.

Second, the data collected by the government will allow the state to have an up to date and adequate national statics, which can lead the government to more accurate planning and implementation of policies and programs. However, as a result of lack of political will, legislative gaps, cost, lack of accessibility, discrimination and other social factors, substantial share of children go unregistered. In order to change this reality and to ensure that all children are registered all levels of society, national and international organisations, governmental and non-governmental institutions must participate in the process of promoting, facilitating and supporting the birth registration system.

States and other stake holders should play a central role in educating the public about the value and benefit of birth registration. In doing so they must be able to deliver the message in a way that could be easily understood at every level.  i.e. using local language of the communities they approach.

In order to achieve universal birth registration, effective legal framework that harmonizes registration with legislation to safeguard children’s rights is also a pre-requisite. In addition Civil registration legislation should take the cultural and community realities in to factor and use incentives to encourage the parents to register birth of their children rather than relying on imposing fines for late registration and penalties for non-registration.

Birth registration systems must be flexible enough to recognise the difficulties and differences in in the lives of the people. States must also repeal discriminatory laws of any kind to enable all children including children born from non-nationals, asylum seekers, refugees and stateless persons to register in the country where they are born. In addition both parents either the father or the mother must be able to register the birth of their child independently in the absence of the other.

States should allocate Sufficient resource to enforce the system by creating the necessary infrastructure to reach communities in remote rural areas and to decentralise birth registration systems. For example, mobile registration can help improve accessibility of the service even in cases of emergency since it is proved to be successful in reaching displaced children in places affected by conflict. Incorporating birth registration into existing legal and administrative structures or integrating it with regular programmes might help to reduce costs and ensure registration. For example, by incorporating birth registration into the educational system, it is possible to enable children who are not registered earlier be registered when they join primary school.

 

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Last modified on Wednesday, 09 October 2019 11:59
Hawi Asfaw

The blogger is currently a lecturer at School of Wolaita Sodo University. She graduated from Center for Human Rights, University of Pretoria, South Africa with Master of Laws (LLM). She can be reached at hawiasfaw@yahoo.com