Omarkhanov Asset, Al-Farabi Kazakh National University,
Student, the Faculty of Law, Republic of Kazakhstan, Almaty,
E-mail: omarhan.1997@mail.ru
Smagulova Dana Sabyrhanovna, Al-Farabi Kazakh National University,
LL.M., Senior lecturer Department of Customs, financial and
environmental law, the Faculty of Law,
Republic of Kazakhstan, Almaty,
E-mail: smgdana@mail.ru
Legal Issues of the
employers in the Republic of Kazakhstan
Today in our country is rather important issue ripe
abandoned children and orphans. At the present stage of development of Kazakh
society must solve acute social problems. We have a large number of children's
homes. In these institutions, people, or the child is in an environment such as
poor and neglected children. The problem of unwanted children to anyone, it is
a problem for society, not just the state. Of course, there are certain changes
in the legal regulation of such complex phenomena of our state. However, some
planned solutions urgent social problems. For instance, Kazakhstan has actually
functions so-called children's villages. There is also a family type homes.
With some difficulty, but it gets its legal development is such an important aspect
of the regulation of social and family relations as patronage.
Research question, the subject of which are
constitutional and legal aspects of the improvement of the legislation in the
field of foster care in all respects is relevant and has important theoretical
and practical significance for the modern legal science.
Against the background of structural changes of Kazakh
society is the creation of new social institutions, the functioning of which is
accompanied by a number of problems related to their introduction into society.
Examples of these social institutions are at the stage of its formation,
include the Institute of foster families, which aims to provide education to
family circumstances broad category of inmates of children's orphanages, helping
to address the problem of integrating into society, with the potential to
return to the natural family. A number of problems and contradictions in the
making foster family as a social institution, insufficient knowledge of the
functioning of a foster family, and its specificity among other forms of living
arrangement of children without parental care, determines the need to examine
the issues relating to the topic.
This legal institution has deep roots and traditions in the U.S.,
Canada, UK, Western Europe.
However, in this case, we believe it is necessary in
the implementation of practical mechanisms to ensure legal employers to
consider the accumulated valuable international experience. The theoretical and
practical analysis of the national legislation in the sphere of legal support
employers, we come to the conclusion that it is not structured and prevent
fragmentation in the implementation process of the implementation of a foster
family in everyday life. Here we assume that, given the foreign experience is
necessary to systematize the law, beginning with the Code on Marriage
(Matrimony) and Family of the Republic of Kazakhstan, the provisions of
patronage and other important regulations.
Patronage - the form of raising a child in the family on the basis of
the agreement concluded between the person who had expressed a wish to take the
child to education (foster parents) and the body of guardianship. In accordance
with Art. 133 of the Code of the Republic of Kazakhstan on the marriage
(marriage) and the family of "custody or guardianship is established in
the form of patronage of minor orphans, children without parental care,
including those in the organization of education, medical or other
organization. The basis of patronage is the agreement on the transfer of the
child to foster care, concluded between the person who had expressed a wish to
take the child to education, and the body carrying out the functions of custody
or guardianship ". [2]
Patronage implies temporary residence in a family
foster parents for a period stipulated in the contract (paragraph 1 of Art. 134
of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and the
family." Foster care can be seen as a temporary, short-term,
rehabilitation, but also sometimes long-term measure, which will ensure the
creation of favorable conditions for life and development of children, to
ensure its safe and comfortable home. With Foster Care is realistic to plan the
future of the vast majority of children deprived of parental care. Due to this
legal form of family education, some children will be able to stay in family
foster parents.
In Kazakhstan, the program for the development of
foster care has received the recognition of the Government of Kazakhstan in
1999, and was developed on March 30, 2012. But until now, continues to
experience difficulties on a number of reasons. One of them - lack of
preparedness experts guardianship bodies, as well as not informing citizens. In
addition, there are problems associated with the psychology and mentality of
the population, as well as the fact that more than 70% of citizens of the
Republic of Kazakhstan is a Sunni Muslim.
Provision governing the legal aspects of the employers in this country
at the beginning was taken Sept. 9, 1999, after the adoption of the Code of the
Republic of Kazakhstan "On Marriage (Matrimony) and the family, and the
new provisions of Government Ordinance of 30 March 2012, it defines patronage
as a form of raising a child in a family caregiver, but her legal development actually
began only in 2004, when the state have been identified, payments of funds for
the child transferred to a new family.
Foster parents paid wages, provided certain benefits
to pupils monthly allowance is paid to food, clothes, and shoes and other
household items.
Patronage is much similar to guardianship, as responsibilities of foster
parents coincide with the duties of guardians. But the main difference between
the legal employers is that the child at the expense of public funds.
Additionally provides pay foster parents. Patronage is different from other
forms of care for children without parental care in the following ways:
1. Patronage is based on the contract, which shall be in writing at the
request of persons wishing to raise a child in the family;
2. work of foster parents paid;
3. pupils of the host families are paid a monthly cash for food,
clothing, shoes and other household items.
After the adoption of the Marriage (Matrimony) and
Family in the Republic of Kazakhstan and the introduction of the institution of
patronage by the Government of the Republic of Kazakhstan 30 March 2012
approved the "Regulation of patronage." The Regulation stipulates
that the child, foster parents passed, through monthly payments in the manner
and amount established by the Government. It should be noted that the payments
are made at the expense of the local budget.
Foster parents take on as trustees, all care for the
child, to protect its rights and advocacy. They should provide him the right
conditions for the maintenance, upbringing and education, provide him with
all-round development, to respect his dignity, to take care of his health.
Foster parents determines how to raise a child, taking into account the opinion
of the child as well as the recommendations of the guardianship. Feature of
this form of family education is the fact that the child has the right to
maintain contact with their parents, grandparents and other relatives, if it is
not contrary to the interests of the child. This is the main difference from the
adoption, which is usually lost blood kinship. In addition, in the future pupil
and foster parents are not linked to any maintenance obligations, or
inheritance relations.
Recruitment of foster parents is the guardianship
authorities with regard to their moral and personal qualities. Just take into
account the ability of foster parents to carry out its responsibilities for the
upbringing of the child are taken into account the relationship between the
foster parents and the child, and if the foster parents have their own family,
also takes into account the attitude of the members of his family to the child.
When sending a child to grow up in a family should be taken into account and
his wish. In the event that a child under the age of 10 years, the account of
his opinion is required.
Passage of any training programs foster parents,
special education, teaching experience in Kazakhstan are not required when
sending a child to grow up in a family.
Patronage has a number of advantages over the
education of children in state institutions. First, there remains a family
environment, the child gets the array of services, care and attention of the
foster parents, as all that is foster parents for 24 hours a day. Second, it is
financial support of the child from the state. This support allows for the
basic needs of the child. In addition, citizens will have the opportunity to
get paid for work on education and child care.
To child welfare authorities the duty to exercise control over the
expenditure of cash and properly the duties of foster parents under the
contract.
Restriction upon education established in respect of:
Ø incapable or capable citizens,
Ø persons who are deprived of parental rights or restricted them
Ø former adoptive parents
Ø relieved of duties of a guardian (trustee) for the improper performance
of their duties,
Ø persons who, for health reasons can not perform the duties of
child-rearing.
In contrast, after the adoption of a treaty on the transfer of the child
to raise the legal bond of the minor with his biological parents saved.
Therefore, remain intact his hereditary rights, parents must continue to pay
child support for the maintenance of their children. The child remains eligible
for pensions, allowances and other benefits, as well as the ownership of the
housing or the right to use the living room. Honors patronage of adoption is
also the fact that the change does not provide name, patronymic, surname of the
child. This will be possible if the foster parents to adopt a child.
Foster parents are the legal representatives of
children, carry out their treaty obligations in the raising and education of
the child. Forms of education are determined by foster parents themselves, and
child welfare authorities have control over the performance of the responsibilities
of foster parents. However, child welfare authorities should give foster
parents assistance to help create normal living conditions and upbringing of
the child.
In order to ensure the supremacy of the Constitution
and the laws protecting the rights and freedoms of man and citizen, exercising
supreme supervision over the strict and uniform application of the
Constitution, the laws and decrees of the President of the Republic of
Kazakhstan and other regulatory legal acts, the prosecution on behalf of the
state:
1) identify and take measures to eliminate violations of the
Constitution, laws and acts of the President of the Republic;
2) supervise the legality of the search activity, inquiry and
investigation, administrative and executive;
3) represents the interests of the state in the court;
4) challenges the laws and other legal acts that contradict the
Constitution and laws of the Republic;
5) in the manner and within the limits of the law, conduct criminal
prosecution;
6) forms the state legal statistics in order to ensure the integrity,
fairness and adequacy of the statistical indicators is special records,
oversees the application of laws in the field of legal statistics and special
accounts. [1]
Prosecuting authorities as a special authorized state
body must oversee compliance of national legislation on the rights of children,
particularly young children in foster care.
Agreement on the transfer of the child to education is
terminated on reaching the pupil 18. The contract can be terminated prematurely
at the request of foster parents, if:
Ø them for legitimate reasons can not fulfill its obligations;
Ø child welfare authorities, without good reason not to perform their
duties.
In addition, the agreement may be terminated ahead of schedule and on the
initiative of the guardianship, if violated the interests of the child in
family foster parents, and in the case of returning the pupil or parents to the
adoption.
Thus, foster parents - it's not just the social parents working under
contract with the state and receives remuneration for the work they perform.
The state is divided with the foster parents of their responsibility for the
upbringing of children without parental care.
What are the advantages of this form of child-rearing?
As evidenced by international studies, the family is easier to solve both
social issues and rehabilitation of orphans. Informal relationships, parental
control, in contrast to the control in state institutions, allows to provide
the child with all the qualities and skills for the development of integrated
personality. Family education based on personal contact foster parents with a
child, is almost impossible to implement in a children's home or orphanage.
Employers family as a new form provides participants
with additional features:
broadens the choice of conditions for participation
allows a smooth transition from one form to another (family
patronage as a stage in the adoption) allow exclusion of a child without the
time-consuming procedures
It should be noted that the solutions to the problems without concerted
efforts and concrete actions of the state and society as a whole is not
possible. Without effective mechanisms for implementation of the state policy
in the interests of the family, motherhood and childhood, the focus of which is
the improvement of legislation, as it is impossible to ensure proper upbringing
of children in the family in safety, protection and care within the education,
health and culture. Since the development of this form of devices, such as
foster care leads to a reduction in the number of children in orphanages and
provide socialization and training of orphans for independent life through the
acquisition of experience of living in a family, the assimilation of family
roles.
Analysis of the situation with the patronage of our
country, we have come to certain conclusions. First, in our view, it is
necessary to create an effective and workable state legal regulation mechanism
of patronage. Second, in our opinion, to date, disparate laws governing
patronage not cover the full range of public relations in the field. Even the
new Code of RK "of marriage (marriage) and family" does not fully
regulate all the problems associated with patronage. Third, in this context, we
come to the conclusion that it is necessary to develop and adopt a separate
piece of legislation that could provide the legal regulation of any and all
public patronage relations. We believe that this legislation should be called
the "Law of the Republic of Kazakhstan on the patronage patronage and
family." Fourth, in addition, it becomes clear that the state, represented
by special authorized bodies should work more closely with international
organizations, the various NGOs, public foundations. Fifth, we have come to the
conclusion that there should be major changes to the financing of the sector,
increase the size of allocated allowances, wages. That is to give patronage
greater social orientation and social significance.
References:
1. Law of the Republic of Kazakhstan dated 21.12.1995 N 2709
"Prosecutor's Office" / / Legal reference system
"paragraph."
2. Government of the Republic of Kazakhstan dated March 30, 2012 ¹ 384
3. On approval of the foster care
4. Government of the Republic of Kazakhstan from September 9, 1999 N
1346 "On Approval of the guardianship of the Republic of Kazakhstan, of
patronage and rules for centralized registration of children without parental
care" / / Legal reference system "paragraph."
5. Law of the Republic of Kazakhstan as of August 8, 2002 ¹ 345-II on
the Rights of the Child in the Republic of Kazakhstan
6. Convention on the Rights of the Child. UN documents on children,
women and education. Sat documents. M. Education. 1995.
7. LEAD on September 9, 1999 ¹ 1346 "On approval of the
guardianship and custody of the Republic of Kazakhstan, of patronage and Rules
of the central register of children without parental care"
8. Governmental Decree of March 11, 2004 ¹ 306 "On approval of the
payment of money for the child (ren) transferred foster parents"
9. Governmental Decree of June 24, 1999 ¹ 842 "On approval of the
list of diseases, under which a person can not adopt (adopt) a child, take him
into care (guardianship), patronage
10. Government of the Republic of Kazakhstan dated December 21, 2007 ¹
1245 On approval of the program "Children of Kazakhstan" for 2007 -
2011 "
11. "On some issues of courts of law on marriage and the family in
cases of adoption," and others.