Invalidation of the recognition of paternity is no longer taken into account when determining the citizenship of a minor – is this a significant change?
On November 30, 2021, an amendment to the Act of April 2, 2009 on Polish citizenship, introduced by the Act of October 1, 2021 amending certain acts in order to improve the terminological consistency of the legal system, entered into force. This amendment covered Article 6 of the Citizenship Act, which indicated what changes regarding the determination of the child's father are subject to consideration when determining the child's citizenship. Before November 30, 2021, one of such changes in the determination of the father was the invalidation of the recognition of paternity. After that date, in accordance with the provisions, it is no longer a premise taken into account when determining the child's citizenship. Instead, from November 30, 2021, one of the types of changes in the determination of the father taken into account when determining the child's citizenship is the determination of the ineffectiveness of the recognition of paternity. The aforementioned amendment to the Citizenship Act does not affect in practice the outcome or manner of conducting proceedings in cases in which the citizenship of a child is determined after changes in the determination of the father. The purpose of the amendment was not to introduce substantive modifications to the provisions on citizenship, but only to improve the terminological consistency of the legal system, or more specifically: to adapt the formulations used in the Citizenship Act to the changes that occurred earlier in family law. On 13 June 2009, an amendment to the Family and Guardianship Code of 1964 came into force, as a result of which the institution of invalidation of paternity was replaced by the institution of determining the ineffectiveness of the recognition of paternity. The previous structure was based solely on defects in the declaration of will of the father recognising the child, such as being under the influence of threats or mental illness. On the other hand, the ineffectiveness of the recognition of paternity may also be determined by the court for biological reasons - when after the recognition of paternity it turns out that the child biologically comes from another man. The change in the provisions of the Family and Guardianship Code applies to events occurring after the entry into force of the amending act. This means that recognition of paternity made before 13 June 2009 may be challenged by invalidation, while later recognition may be challenged by establishing its ineffectiveness.
In connection with the fact that the Polish Citizenship Act was adapted to the changes introduced in family law only 12 years later, the question may arise as to whether we are not dealing with a certain loophole in the law. A literal interpretation of the Polish Citizenship Act may lead to the conclusion that determining the ineffectiveness of recognition of paternity should be taken into account when determining the child's citizenship only from 2021. This, in turn, would lead to the conclusion that determining the ineffectiveness of recognition of paternity made between 2009 and 2021 would not be subject to consideration in cases concerning the citizenship of children.
It should be stated, however, that the legislator’s aim was not to introduce any substantive change in this category of cases, but only to adjust the terminology to that currently used in the Family and Guardianship Code.
