ECtHR: “Illegitimate” Children of Polygamous Marriages?

This post was written by Laima Vaigė, Associate Professor and Senior Lecturer in Private International Law at Uppsala University.

On 8 September 2026, the European Court of Human Rights (ECtHR) delivered its judgment in A.A. v the Netherlands (Application no. 7481/23), concerning a refusal of family reunification between a refugee father living in the Netherlands and five of his children born of his second and third marriages. The Court unanimously found no violation of Article 8 of the European Convention on Human Rights (ECHR).

At first sight, the judgment is primarily a human-rights case. From a private international law perspective, however, it raises a familiar but difficult question: what exactly should follow from the (non)recognition of a marriage lawfully concluded abroad? More particularly, should the consequences of (non)recognition extend to children whose relationship with their parent is not itself regarded as contrary to public policy?

The case

The applicant, a Yemeni national, had married three women in Yemen and had thirteen children: eight with his first wife, three with his second wife and two with his third wife. He arrived in the Netherlands in 2018 and was granted refugee status.

In 2019, he applied for family reunification with his first wife and all thirteen children, who were then living in Turkey. The Dutch authorities asked him to indicate which of the three marriages he wished to have recognised. He maintained that all three marriages were legitimate. The authorities subsequently treated the first marriage as the marriage to be recognised and granted family reunification to his first wife and their eight children. They refused the applications concerning the five children born of his second and third marriages.

The refusal rested on the Netherlands’ approach to polygamous marriage and on Article 4(4) of the EU Family Reunification Directive (Directive 2003/86). That provision draws an important distinction. Where the sponsor already has a spouse living with him or her in a Member State, the Member State “shall not” authorise family reunification with a further spouse. In relation to the minor children of the sponsor and a further spouse, Member States “may limit” family reunification.

The Directive does not treat the additional spouse and the children of that marriage identically. The Dutch administrative rules, however, appear to restrict unification to only one legal spouse and “children born of that marriage” (§ 27). In practice, the father’s choice of wife also determines which of his children could join him. The Government submitted that had the applicant divorced his second and third wives, he could have benefited from “more favourable conditions” (§ 49) in respect of reunification with the five children from these marriages.

Return to the language of “illegitimate” children

The applicant challenged the refusal under Article 8 ECHR. Referring to its earlier case law, the Court reiterated that Article 8 applies to the family life of an “illegitimate” family in the same way as it applies to that of a “legitimate” family (§ 54). A child born outside a relationship recognised as a marriage is, by the fact of birth, part of the family. Accordingly, the Court accepted that family life existed between the applicant and the five children irrespective of the non-recognition of his polygamous marriages in the Netherlands.

The Court never addresses the elephant in the room: it remains unclear whether filiation (family civil status, rather than “life”) has been recognised or has to be recognised in respect of the children in second and third marriage.

It may appear that the second and the third marriages were simply seen as having no legal effect. Yet this non-recognition also “contaminated” the filiation, in a sense that the children were treated as “illegitimate” (§ 54) for the purposes of immigration and the situation required “legitimising” via a divorce (§ 62).

Furthermore, after having separated the existence of family life from the non-recognition of marriage, the Court immediately returns to polygamy, when determining the scope of the Netherlands’ obligations. The Court attaches weight to the applicant’s refusal to divorce his second and third wives, despite having been informed by the Dutch authorities that maintaining the second and third marriages would prevent the five children born of those marriages from qualifying for family reunification. “Had the applicant complied” (§ 63), he would have been in a different situation.

There is, however, an illogical shift here. The (debatable) European consensus concerns the non-recognition of polygamous marriages. Meanwhile, the case before the Court concerned the rights of children and their relationship with their father—a relationship that had been said to arise from the fact of birth, irrespective of whether the marriage between their parents was recognised. The distinction is also visible in the Family Reunification Directive itself, as mentioned above. The EU legislature chose not to make the exclusion of children born in polygamous families automatic but left scope for individual assessment.

The ECtHR apparently creates a category of “children born of polygamous marriages” (§ 65). In respect of this category, where the fathers fail to “legitimise the situation” (§ 62), Member states have a wide margin of appreciation. But why should the European consensus against recognising polygamous marriage translate into an equally wide margin of appreciation concerning a father’s relationship with children whose family life the Court itself recognises?

No general right to immigration

The case is, ultimately, about immigration, in the current atmosphere of anti-immigration. The Court highlights that Article 8 does not impose a general obligation to respect an immigrant family’s choice of country of residence (§ 51).

At the time of the application, the children were living in Turkey, and appeared to have some kind of family stability, albeit temporary and legally vulnerable. Was it really in their best interests to come live in their father’s place of residence? It depends very much on individual circumstances. But neither the children’s right to be heard, nor the right to be cared for by their parents was addressed by the Court. The Court nevertheless concluded that “the best interests of a child, of whatever age, cannot constitute an unassailable consideration that requires the admission of all children who would be better off living in a Contracting State” (§ 71).

The judgment reflects a broader shift in global immigration law. Rights that would ordinarily be discussed in terms of family unity and children’s right to parental care are increasingly reframed through the language of admission. The risk is that migrants and their children come to be treated not quite as rights-holders on equal terms (human beings with human dignity), but first and foremost as persons seeking permission to (legally) exist.

Who bears the cost of non-recognition?

The Family Reunification Directive itself connects restrictive measures concerning polygamous households with respect for the rights of women and children (recital 11). The ECtHR correctly lists the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) as relevant.

But it is striking to see that the judgment fails to even mention the UN Convention on the Rights of the Child (CRC) among the relevant UN instruments. Meanwhile, the CRC is also a binding UN Convention on all Council of Europe member states. It creates a normative framework for interpretation of the ECHR rights.

Women in polygamous families do not necessarily have identical interests. Protecting gender equality cannot mean treating women as having no agency in relation to their family arrangements. In this case, the second wife was reported to be a women’s rights activist, and in respect of all marriages, consent was mentioned by the applicant, but not analysed by the Court.

One needs to confirm that polygamous marriages are seen as problematic by the CEDAW Committee. There is an important nuance, however, absent from the ECtHR’s reasoning. While the CEDAW Committee has consistently regarded that entering into polygamous marriages is contrary to women’s equality and called for its abolition, it has also stressed that women in existing polygamous marriages must not be deprived of legal protection (Gen. Recommendation No. 29, §28), at least for economic rights and inheritance. This becomes even more important where non-recognition affects the rights of their children.

Paradoxically, the values invoked to justify restrictive measures may have an effect of restricting the rights of the very persons whom those values should ultimately protect: women and children. This raises a broader question about what exactly is being protected when the interests of “public order” are invoked (§ 66). Is the concern primarily the preservation of a national conception of family and marriage?

If foreign family relationships are increasingly approached primarily through the lens of domestic public order, the openness to difference associated with private international law risks being narrowed. In a period of resurgent nationalism, that is a development worth watching very carefully.

Little family life

The Court’s reasoning can be criticised from both the perspective of private international law and human rights. The key private international problem is the status of the child-parent relationship. If the filiation legally exists, the circumstances of the parents’ marriage should not in themselves create a “lesser” parent-child status that does not qualify for reunification. And if the legal filiation does not exist, the CRC and the ECHR rights nevertheless remain normative, considering that “family life” exists.

The case also reminded me of Hämäläinen v Finland. There, too, the existence and continuation of “family life” did not prevent the Court from accepting that legal recognition of gender could be made conditional on the applicant’s existing marriage being converted into a registered partnership; failing the spouse’s consent to such conversion, the only alternative left was to divorce. In contrast, States have also enjoyed considerable discretion in restricting access to divorce, notwithstanding the consequences for the family relationships and personal status of those concerned (Babiarz v Poland). Thus, nudging people to divorce or refusing divorce can both be justified under Article 8.

A.A. v the Netherlands adds another piece to this line of case-law. Family life between a father and his children exists, irrespective of whether the parents’ marriage is recognised. Yet the Court leaves unclear what, if anything, that family life requires in terms of recognition of the corresponding legal status of filiation. It does not give the children a right to join their parent and it does not prevent the State from making the parents’ divorce relevant to whether the children may live with him.

What, then, remains of “family life” when it can be detached from legal status and even from the possibility of living together as a family? Perhaps a lot de facto, but remarkably little in terms of legal effects.