"Identity rights for children must be better protected"

In court cases involving children, not only the best interests of the child should be considered, but also identity rights. Lawyers could use these rights more often to better realize the interests of the child in protecting his or her identity. Soraya Bou-Sfia will receive her PhD on this subject at Utrecht University on 17 September 2021. Worldwide there has never been such extensive research into the meaning of identity rights for children.

The term identity is ambiguous and legally undefined. According to international treaties, identity rights include at least the child's name, nationality and family relationships. This is clear to lawyers, but there is much more to identity. Think for example of friendships and other social ties, language, school, sexual orientation, cultural customs, and the way in which a child develops. Identity rights are therefore difficult for lawyers to investigate, and therfore it has not been often. However, it is important for children and thereby for the development of Dutch family law, according to researcher Soraya Bou-Sfia.

Children have the right to protection of their identity, I want to find out for them what this means.

The power of identity rights

The two most important identity rights for children in Dutch family law are those from Article 8 of the United Nations International Convention on the Rights of the Child (UNCRC) and Article 8 of the European Convention on Human Rights. These rights appear to be relevant to numerous topics and range from parentage information for adopted and donor children to child removal placements to name changes and gender issues. Dutch law cases also show that identity rights play a role in them. "For my dissertation, among other things I looked at rulings by judges in the Netherlands: when are Articles 8 mentioned? In which situations and what kind of cases? When do these rights play a role and when not? What obligations result from the use  them? And what is the potential of these rights? The power of identity rights can be very great, but lawyers and judges appear to be reluctant to use them."

Recommendations for practice

"One of my recommendations to the legislature and legal professionals such as judges and lawyers is to at least attach a duty of investigation to identity rights. Investigate whether the identity rights are relevant in the specific case and if so, how the identity rights should be interpreted. In doing so, examine which aspects of identity are involved and how the interests of the child should be valued in that context. If necessary, involve other experts, such as a psychologist or an educationalist. You actually need to know what role, for example, language, a place of residence or a bond with a teacher plays in the child's life in order to make substantiated statements about his or identity and the development of the identity."

By bringing identity rights into cases more often, the interests of the child can be better protected. And the interests of the child must be taken into account under Article 3 of UNCRC. "Article 3 is already used very often in court cases. By linking this child right to the identity rights you are always forced to look at who the specific child is, what he is connected to and what his or her interests are in that context. One of the difficult questions here, though, is who ultimately determines what the child's identity comes down to if, for example, there are disputes about that and the child is still too young to speak out about it. Further research is needed for this.

It is a diffuse but wonderful research topic that deserves attention and hopefully will receive it. Only then can children's identity rights be better protected.

Personal interest

Researcher Soraya Bou-Sfia completed two masters at the Vrije Universiteit (Private Law and Notarial Law) and then started her PhD research at Utrecht University, at the research group UCERF. "The themes of name change, nationality, culture, religion, and transgender issues immediately appealed to me. A colleague pointed out to me that this all had to do with identity. When I searched further, it turned out that a child's right to identity is established. This led to all sorts of questions, to which no asnwers were available quickly. The search for answers I have not been able to let go since." After several years of research, I now know more about the meaning of identity for children in family law, but many unanswered questions remain. It is a diffuse but wonderful research topic that deserves attention and hopefully will receive it. Only then can children's identity rights be better protected.

Dissertation: 'The meaning of identity rights for children in Dutch family law': a study of Articles 8 CRC and 8 ECHR.