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.