Ignatenko G.S.,
The assistant of rector
Kursk State Technical University
Adoption of
children in the Russian Federation
According
to p.1 item 17 of the Constitution of the Russian Federation the right and
freedom of the person and the citizen are a state supreme value, and, hence,
are under special state protection and have priority state value.
The
priority of the given direction of a state policy has been noted and in the
Annual Message of the President of the Russian Federation Dmitry Medvedev to
the Federal Assembly of the Russian Federation which has specified that «the
Russian state if wishes to be fair, is obliged to help disabled and needy
citizens - to invalids, pensioners, orphans. So that the life of such people
was worthy, and the basic blessings would be for them accessible»1.[1]
The
judicial order of adoption of children instead of administrative one in the
Russian legislation has been established by item 125 of the Family code of the
Russian Federation (further - FC of the Russian Federation) and installed since
September, 27th 1996 by the federal law from August, 21st 1996, which in the
Civil remedial code of RSFSR 1964 Chapter 29-1 «Establishment of adoption
(adoption) of children» has been included. Since February, 1st 2003 the
judicial order of adoption of children is regulated by chapter 29 of the Civil
remedial code of the Russian Federation (further – CRC of the Russian
Federation). The judicial order of adoption of children that corresponds to the
Constitution of the Russian Federation now operates, to the conventional
principles and norms of international law, the international contracts of the
Russian Federation, world practice of adoption of children and to the greatest
degree is equitable to interests of the child, is a guarantee of observance of
its rights and legitimate interests.
During
the period since 1997 to 2005 it was considered over 200 thousand affairs about
adoption by courts, to adoption on a decision of the courts it is transferred
250 thousand children.[2]
It testifies that the legislation regulating an order of adoption in the
Russian Federation, has the special social importance.
According to the
Convention on the rights of the child our state is obliged to provide the right
of children to live and be brought up in a family and, first of all, in the
homeland.
According
to the State Office of Public Prosecutor of the Russian Federation, at adoption
of children numerous infringements of the law are supposed, the priority in the
device of children in the Russian families is not provided. Bodies of
guardianship and guardianship which under the law are obliged to be engaged in
the device of children in the Russian families, work badly, in their activity
it is a lot of formalism, unreasonable refusals to the Russian citizens, wishing
to adopt the child, their informing on children which can be transferred to
education in the family[3]
is not adjusted.
The
court role considerably increases in these conditions at decision-making on
adoption. The court is capable to put a barrier on a way of illegal adoption,
to estimate conformity of adoption not only to the legislation, but also
interests of the concrete child. The court is capable to find out, why to the
child, especially small and almost healthy, there was no family in Russia what particularly
measures were accepted on search of such family at local, regional and federal
levels. Quality standard by court of all circumstances, including medical
suitability of adoptive fathers, in many respects defines the further destiny
of the child.
Moreover,
affairs about adoption owing to the specificity represent special complexity,
demand thorough training and strict Law observance at any stage of
legal proceedings on
this category of affairs so that adoption questions have been solved with the maximum
account of interests of children.
Judicial,
instead of the administrative order should be used in the Russian Federation in
the near future for all cases of adoption (including stepsons and
stepdaughters). Offers on change of
judicial jurisdiction do not consider the statistics data, a condition of the
Russian society, qualitative level of work of bodies of guardianship and
guardianship. Besides, realisation of such offer will lead to infringement of
the rights and interests of parents.
The
legislator has truly carried affairs about adoption to special manufacture as
this kind of civil legal proceedings is to the greatest degree adapted to
resolve business about adoption as much as possible in interests of the minor
child.
However
in some affairs about adoption by their consideration there can be a dispute on
the right. These are affairs about
adoption, in which:
- evading from education of the child parents
do not agree on adoption;
- relatives of the adopted child, applying on adoption,
challenge its adoption by strangers Russian citizens; o
- some relatives of the child, applying for
adoption, challenge its adoption by other relatives;
- some foreign citizens, applying for adoption,
challenge adoption of the child by other foreign citizens.
For
such affairs more comprehensible procedure of claim manufacture in which
frameworks principles of competitiveness and disposition to the full operate
that allows to provide more reliably observance of interests of the minor
child, parents and adoptive fathers is represented.
In
connection with available in the literature and different interpretations
traced in practice, it is offered to distinguish accurately pre-judicial
preparation, that is regulated by norms of a family law and administrative law
of action of bodies of guardianship and guardianship and candidates in adoptive
fathers till the reference to the court moment, and preparation of business for
proceeding, as the stage of civil process beginning after excitation court of
business on adoption and removal of corresponding definition by rules of the
item of item 147 and 272 CRC of the Russian Federation.
Fixed
in legal certificates of action of bodies of guardianship and guardianship and
candidates in adoptive fathers till the reference to the court moment actually
enter into the maintenance of pre-judicial preparation on the case of adoption,
but to recognise behind them value of “a pre-judicial order of settlement of
dispute” it is impossible.
Within
the limits of adoption institute finds reflexion a principle of a priority of
interests of minor children which forms a hypothesis of the general material
norm about adoption which, in turn, reveals through set of other norms of the
family law regulating the relations on adoption, applying which, the court defines
a circle of the legal facts entering into a subject proving on each concrete
business about adoption.
The
above-stated predetermines classification of all legal facts within the limits
of a subject proving on affairs about adoption on necessary and facultative,
and also the facts which are necessary for establishing in connection with
application of "situational" norms.
The
leading role in the course of an establishment of the facts entering into a
subject proving on affairs about adoption, is played by court. The
material-legal specificity of affairs about adoption predetermines
“investigatory” character of activity of the court directed on an establishment
of the concrete facts, however, of border “investigation” are accurately
established in the legislation, and do not break private legal relations.
It is
necessary to distinguish the conclusion of bodies of guardianship and
guardianship which prepares them by results of pre-judicial preparation of
business about adoption and it is represented in court at a stage of
preparation of business about adoption to proceeding (p.1 item 272 CRC of the
Russian Federation), and the conclusion given by the representative of body of
guardianship and guardianship at a stage of proceeding, by results of research
of all materials of business about adoption with which the legal investigation
about adoption on a being (item 189 CRC of the Russian Federation comes to an
end). The first of the named conclusions
is the written proof as possesses all signs inherent in written proofs. However remedial
uncertainty of its place of system of evidentiary facts predetermines entering
of corresponding additions into p.1 item 71 CRC of the Russian Federation. The
second kind of the conclusion is realisation of one of forms of participation
of public authorities and local government on affairs about adoption (p.1 item
47 CRC of the Russian Federation).
Application
of rules about secret of the adoption, limiting a principle of publicity of
civil legal proceedings for all cases of adoption is, on the one hand,
inexpedient, and, with another, contradicting the international legislation
concerning a legal regime of secret of adoption. In this connection it is
necessary to correct the civil remedial legislation in the next possible ways:
first, in p. 2 items 10 CRC of the Russian Federation to fix a rule about legal
investigation possibility about adoption in the closed judicial session only in
a case when adoptive fathers petition for it; secondly, if and to keep
imperative norm about disposal of legal proceeding about adoption in the closed
judicial session only at adoption of children by citizens of Russia and to
bring respective alterations in item 1 of item 125 FC the Russian Federation;
Thirdly, to fix at legislative level a duty of the applicant at a filing of
application about adoption in court, to reflect in it the position about
necessity (or, accordingly, absence that) preservations of secret of adoption.
The
requirement established by the legislator about preservation of secret of adoption
in interests of minor children should be observed not only at a stage of
proceeding of business about adoption, but also at a stage of excitation of
business about adoption for what respective alterations in an order of the
organisation of office-work on the given category of affairs, proceeding from
already existing positive experience of some the Russian courts are necessary.
Affairs
in the long term about adoption should be carried to jurisdiction of
specialised courts – juvenile which creation within the limits of proceeding
legal reform is a crying need. Now for
this purpose there are all preconditions. Modern level of consideration of the
given category of affairs in the general courts is not equitable to the full to
interests of adopted children. The given problem not to solve only by introduction of
specialisation within the limits of courts of law, creation independent, but
the courts of law included in system juvenile courts that demands creation of
corresponding legal base therefore is necessary.
[1] The annual message of the
President of the Russian Federation to Federal Assembly of the Russian Federation // www.regnum.ru/news/444274.html
forprint.
[2] The Bulletin of the Supreme Court of the Russian
Federation ¹ 6 from 30.06.2006
[3] Representation of the State Office of Public
Prosecutor of the Russian Federation from 30.07.1999 ¹ 21-17-99 «About Infringement
of the legislation on adoption of children-orphans and children who have
remained without Cares of parents » // lawmix.ru.