Maarten Peter Vink and Gerard-René de Groot
Furthermore, potential citizenship consequences should not be the reason to give or to refuse the required consent. In Austria, the Constitutional Court came to the conclusion that the acquisition of Austrian citizenship ex lege by a foreign minor legitimated by an Austrian man constituted a violation of the Austrian constitution, inter alia because of the potential loss of another citizenship (in that case, the citizenship of Liechtenstein).7 This decision made a modification of Austrian citizenship law necessary. Therefore, since 1985 Austrian citizenship is exclusively acquired ex lege by legitimation if the child who has already reached the age of 14 gives his consent and the legal representative does also. 8
Although all of the arguments mentioned have some value, states must give children born out of wedlock as far as possible the same position as children born in wedlock. Not to attribute the citizenship of the father to a child born out of wedlock in case of birth abroad because such a child probably will not develop a genuine link with the country of citizenship of the father seems to us, in all cases, a differential treatment of children born out of wedlock in comparison to those born within wedlock.
The citizenship status of an adopted child nowadays approximates to that of a biological child in that citizenship is transmitted iure sanguinis after the act of adoption is formally registered. This approximation is inter alia influenced by the Hague Adoption Convention of 29 May 1993 (De Groot 2005: 200). Finland, for example, arranged this in 2003 and the Netherlands in 1998 and 2005 for cases of adoption abroad. 9
Acquisition of citizenship by adoption is not mentioned in the European Convention, Article 6 as a desirable ground for acquisition of citizenship ex lege. It is only mentioned as a ground for privileged acquisition. This is remarkable because on the other hand, the Convention does mention that national citizenship legislation may provide that a citizenship is lost by the adoption of children, if the citizenship of the adopting parents is acquired (ECN 7(1)(g)).
Nevertheless, many countries mention adoption as a ground for acquisition of citizenship ex lege (see Table 3; cf. Hecker 1985: 153-163; De Groot 1988: 196-199). Most of these countries require that the adoption involved was realized during the minority of the child. However, in some countries the age limit is lower, as in Denmark, Finland, Iceland and Sweden (12 years) and the Czech Republic (16 years).
According to the Belgian legislation, adoption is a ground for acquisition, but if the adopted child was born abroad and the Belgian adoptive parent(s) also, exceptions exist (BEL 9; cf. SLN 7).
Some countries only provide for citizenship consequences of adoption when the adoption order was made by a court, or by authorities of the country involved (e.g. IRE 11). However, an increasing number of citizenship codes provide for the possibility, that a foreign adoption order has citizenship consequences if this foreign adoption order is recognized
7 8 Decision of 12 June 1984, Bundesgesetzblatt Nr. 375/1984. See Staatsbürgerschafts-Novelle 1985, Bundesgesetzblatt 1985, 568. Compare on that modification De Groot 1989: 145-146; Pfersmann 1985; Schwimann 1986.
9 See Guide to Good Practice on the Implementation of the 1993 Hague Intercountry Adoption Convention of the Hague Conference on Private International Law, paragraphs 492–6: http://www.terredeshommes.org/pdf/news/Jennifer%20Degeling_e.pdf).
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors