REVIEW Supreme court adoption practice
Of approved Mr.
Presidium of the Supreme Court
Russian Federation
May 23, 2012
REVIEW
Supreme Court
practice of considering the 2011 regional and an equal
court cases of adoption of children by foreign nationals or
stateless persons, as well as the citizens of the Russian
Federation permanently residing outside the territory
Russian Federation
One of the most pressing public issues of modern Russia
remains ? tsya problem of protecting the rights and interests of children and
especially children-orphans and children without parental care
parents.
Often, children without parental care due to
deprivation of both or a single parent of parental rights, the refusal
born of a single mother of the child, the death of parents, and
for other reasons.
In these situations, I get up ? t the fate of these children.
Since it is the family education provides health,
physical, mental, spiritual and moral development of children,
Adoption is the preferred form of child
without parental care.
The main social purpose of adoption is to create
children who have lost parental care, the most favorable
environment to live and raise a family environment.
In accordance with Article 21 ? th Convention on the Rights of the child
inter-country adoption may be considered as
alternative care for the child, if the edges can not knock ?
be transferred to a foster or Indoor ? n the family, which could
provide its foster placement or adoption, if software
an appropriate care in the country of origin of the child
is not impossible.
Thus, Reb ? NOC has the right as possible
brought up in the country of origin.
________________________________________
Page 2
2
Article 124 of the Family Code of the Russian Federation (hereinafter - SC
RF) also enshrines the principle of priority of Russian citizens to
foreign nationals in the adoption of minors.
In accordance with paragraph 4 of this rule adoptions
foreign citizens or persons without citizenship allowed
when:
First, it is impossible to pass on adoptions
children in families of citizens of the Russian Federation permanently
residing in the territory of the Russian Federation, or to
adoption families of these children, regardless of nationality or
place of residence of the family;
second, six months have elapsed from the date of receipt of information
such children to the federal data bank of children without
parental care.
There is a view that is widespread in Russia
international adoption, and Russian citizens adopt
Children rarely. Yet such a view does not find its
confirmation.
Thus, according to statistics, in 2009 the district
ships with the decision, was considered 16,863 cases on
Statement by Russian citizens on adoption of children without
parental care, with 16 747 cases were reviewed with
satisfaction statements.
In 2010, with the decision, considered 15,513 of these cases,
of which granted 15,415 applications. During 12 months of 2011 with
judgment examined 15,218 cases of allegations
Russian citizens about the adoption of children, of whom 15,076
applications were granted.
As for cases of international adoption, in 2009,
year with the decision, and an equal regional courts was
3427 examined such cases (granted 3420 statements) that 4.9
times less than the cases of adoption of children by Russian citizens
examined by the courts in the same period.
In 2010, with the decision examined 2990 cases
international adoption, which is 5.2 times less than in the same
period considered cases of adoption of children by Russian
citizens.
During the 12 months of 2011, with the decision reviewed by 3076
cases of international adoption (including satisfaction
Requirements - 3069 cases), which is 4.9 times less than in the same period
ordered the adoption of children by Russian citizens (15
218).
________________________________________
Page 3
3
Percentage satisfaction of applications, both Russian and foreign
citizens about the adoption of children is high.
Thus, in 2009, the courts granted 99.3% of reported
Adoption of Children by Russian citizens in 2010 - 99.4%
statements, in 2011 - 99.1% of the applications.
In cases of international adoption in 2009
satisfied 99.8% of applications in 2010 and 2011 the percentage of
clearing applications was 99.7%, and 99.8%, respectively.
On adoption of children, including foreign
citizens, are constantly in view of the Supreme Court
The Russian Federation.
Clarification on
Application
courts
legislation
regulating relations on adoption of children, are contained in
Plenum of the Supreme Court of the Russian Federation of 20
April 2006 ? 8 "On application by courts of law in
cases of adoption (adoption order) children "(hereinafter -
Resolution of the Plenum of the Supreme Court of the Russian Federation of 20
April 2006 number 8).
Upon review of the cases of international adoption
Russian children (as of December 23, 2011), can be
note the following.
In 2011, in cases of inter-country adoption of children
considered with appreciation the statements, adoptive parents often
all were U.S. citizens (28%), and Italian citizens (21%)
and Spain (20%).
In addition, adoptive parents were citizens of France (8%),
Germany (7%), Ireland (4%), Israel (3%), Canada (2%),
The UK (1.5%), Finland (1%), Malta (1%), Sweden (1%),
Argentina (0.4%), Belgium (0.3%).
The small number of adopters (1 to 6 cases) were,
In particular, citizens of Switzerland, Austria, Cyprus, Ukraine,
Kazakhstan, Greece, Mexico.
The greatest number of cases of international adoption
2011 discussed with the decision, the St. Petersburg
Municipal Court (314 cases), the Moscow City Court (187 cases)
Perm regional court (case 181), the Krasnoyarsk Regional Court
(137 cases), the Kemerovo regional court (124 cases), Khabarovsk
Regional Court (110 cases), the Kirov district court (103 cases),
Saratov regional court (100 cases), the Sverdlovsk Oblast
Court (97 cases), the Moscow Regional Court (94 cases),
Novosibirsk Regional Court (92 cases) and Primorye territories
Court (91 case).
________________________________________
Page 4
4
Spend ? nnoe generalization showed that almost all
regional courts and equal to them today introduced
specialization of judges to hear cases of international
Adoption of Children, which is a positive thing.
This category of cases in the courts generally considered to be one
judge either two or three judges.
For example, the Supreme Court of the Republic of Bashkortostan,
Tver, Kirov, Kostroma, Lipetsk, Novgorod and
Pskov oblast courts in 2011, such cases are considered one
a judge in the Supreme Court of the Republic of Tatarstan, in the Krasnoyarsk
boundary
court
Volgograd,
Vladimir,
Irkutsk,
Leningrad, Saratov and Smolensk oblast courts
considered two judges, in the Tula regional court - three judges.
Given that the adoption - a complicated legal institution of
correct choice of adoptive families, which passed
Reb ? films, depends on his fate and mistakes in adoption are not allowed,
it appears that such cases should be considered the most
experienced and trained judges who have knowledge and skills in
its investigation.
Current legislation in detail the process
adoption of children, including the procedure for the consideration of such cases in
court.
Thus, the composition of those involved in the adoption of the child,
defined by paragraph 1 of Article 125 of the Family Code and Article 273 of the Code of Civil Procedure of the Russian Federation,
according to which the application for adoption is considered to
mandatory participation of adoptive parents (parent), a representative
guardianship authority, the prosecutor, the child over the
age of fourteen, and where necessary, their parents,
other stakeholders, and most of the child at the age of ten to
fourteen years.
It should be noted that if the Supreme Court during the
The Russian Federation in 2010 generalization of judicial practice
cases of international adoptions were cases when
adoptee Reb ? films, has reached the age of 14, was not involved in
trial, in 2011, according to information
provided by provincial and equal to them by the courts, such violations
was not allowed.
On the issue of participation in the hearing of the child at the age of
ten to fourteen vessels should continue
guided by the explanation given in paragraph 4 of resolution
Plenum of the Supreme Court of the Russian Federation on April 20, 2006
, the number 8. In Mr. ? m with the account of how the provisions of Article 12 of the Convention on the Rights of
of the child and of Article 57 of the RF IC pointed out that in this matter
________________________________________
Page 5
5
the judge should proceed from the right of the child to be heard in
any judicial proceedings affecting their interests. And
Only then, and only if there is reason to believe that the presence of
of the child in court could have an adverse effect on him,
Judge finds out about this view of the Guardianship and
guardianship.
As noted, the adoption of children - the citizens of the Russian
Federation by foreign citizens, persons without citizenship
Russian nationals permanently residing
outside the territory of the Russian Federation, is permitted only in
cases where it was not possible to transfer these children to
children in families of citizens of the Russian Federation permanently
residing in the territory of the Russian Federation, or
adoption of children, regardless of family residence and
citizenship of those relatives.
In order to establish these circumstances, the courts should
demand from the guardianship and custody papers
confirming the failure to communicate of the child in the care of
seven citizens of the Russian Federation or to adopt
relatives of the child, proof of the presence of information
adopter of Reb ? nke in the federal data bank on children
without parental care, as well as documents containing
information on the child-care authorities,
federal and regional operator actions on the device
(Assistance in the unit) of the child left without
parental care for children in families of citizens of the Russian
Federation permanently residing in the territory of the Russian
Federation.
A positive solution to the question of adoption of the child,
a citizen of the Russian Federation, foreign
citizens in the absence of compliance with the law on the admission
measures to the device of the child in a family of Russian citizens is unacceptable.
For example, against decisions of the civil
Cases of the Supreme Court of the Russian Federation of July 12, 2011
reversed the decision of the Kamchatka Regional Court of 11 April 2011,
which was granted on the application of Spanish
adoption order minor.
As established by the court of appeal, in the official
signing the guardianship no information
as adoptive relatives of the child, and the measures taken
authorized officials for the purpose of establishing
transfer of the child to the family relatives. During the hearing
representatives of the department of custody and guardianship administration
________________________________________
Page 6
6
Petropavlovsk-Kamchatsky
Urban
District Ministry
Education and Science of Kamchatka were not informed of any court
measures taken to establish the family of the child with a view to
transfer to their family, citing a lack of information about
relatives, except for the grandmother of the child.
Investigating the case, the trial court prosecutor
making the application for the recovery of additional information about
relatives
in view of the child
omission authorized
officials, but it was upheld by the court
satisfaction. Meanwhile, as a result of the prosecutor's check was
received information that there are underage girls
relatives on the father's side - m ? cha and grandmother, who
live in Kamchatka, and they object to the
Adoption girls foreigners. Moreover, according to
Conclusion The main doctor Mkuze "Town House of the child - medical
establishment of maternal and child health, "the city of Petropavlovsk-
Kamchatka t cha ? agreed to take the girl in the care of their
family.
In addition, the court ignored, and the fact that two
brother are in the care of a minor Russian citizens
Federation.
The following example. One of the grounds on which
Kostroma Regional Court rejected the application
U.S. citizen adoption of the child, was that the authorities
guardianship were not adopted the necessary measures to
device of the child to the family of citizens of the Russian Federation, namely
after six months from the date of posting of the child on academic ? tons
federal database girl as the Court's findings the guardianship
Russian citizens and care was offered, the work on
device of the child to the family of Russian citizens was actually
stopped, and after the issuance of foreign adoptive parents
aimed at providing the per child ? Nkomo after the deadline
under paragraphs 24 and 29 of the Rules of the State
data bank on children without parental care, and
supervising the formation and use,
nnyh of approved by the Government of the Russian Federation
April 4, 2002, ? 217, in which the foreign
citizen is obliged to inform in writing appropriate
operator to file their application to the court for adoption of the child,
Reb ? films for a long time to other candidates
adoptive parents, including Russian ones, are not offered. Meanwhile
applicant and e ? representative (usynovitelnym agency) process
document collection and submission to the court took more than 10 months,
________________________________________
Page 7
7
this time, the health of girls has improved, and the court
set of adoptive parents of Russian citizens
wishing to adopt a child 'of that age and sex.
In another case, the Kaliningrad Regional Court was
terminated the proceedings in connection with the refusal of U.S. citizens
application for adoption of two children, because, as
found the children had relatives and children were placed under the
guardianship of relatives.
Court's conclusion that it is impossible to transfer of the child to grow up in
family of citizens of the Russian Federation with the account of how the requirements of Article 198
CPC RF must be motivated in the judgment.
However, despite the evidence in the records of
on the adoption of the guardianship authorities measures to
the transfer of the child to grow up in a family of Russian citizens, about
in each quarter of the mouth ? the court order in 2011, with
meet stated foreign adoptive parents are not reflected
data about who specifically of Russian citizens offered
Reb ? films on education and why they have refused to take the child 'to
education.
For the above problem commendable
practice of the courts, which under the circumstances test
carefully and reflect them in their decisions.
The persons who have expressed a desire to be foster parents, law
(Article 127 of the Family Code) imposes Define ? nnye requirements. Their
compliance is the guarantee of the rights of minors
children placed for adoption.
These requirements include, in particular, the presence of
applicants the necessary material and living conditions for
provide children with the full physical, mental,
spiritual and moral development, lack of disease
under which the person can not adopt the child.
In cases of inter-country adoption of children courts
have to figure out the financial position of the adopters, their housing
conditions, employment, education and similar circumstances and
to give them a proper assessment.
However, esch ? are cases where the courts not
fully investigate these circumstances and do not represent them in their
solutions.
For example, against decisions of the civil
Cases of the Supreme Court of the Russian Federation on June 7, 2011
reversed the decision of the Kamchatka Regional Court on 29 March 2011
which was granted on the application of Spanish
adoption order of the minor child '.
________________________________________
Page 8
8
As indicated by the Judicial Collegium for Civil Cases of the Supreme
Court of the Russian Federation, the trial court, in violation of
Article 67, paragraph 1 of Article 195, paragraph 4 of Article 198 of Code of Civil Procedure of the Russian Federation in
Investigating the case, did not examine the documents containing
information about the financial and housing adopters, and
reflected in the own decision concluded that indicate whether the data
information about the adequacy of the conditions for the full content
the adopted child '.
Furthermore, contrary to the provisions of paragraph 2 of Article 124 and paragraph
third paragraph 1 of Article 123 of the RF IC court did not examine the issue of
religion of adoptive parents and the admissibility of the religion to
ensure full spiritual and moral development
adoptee, adoptive parents to provide opportunities Reb ? NKU
physical, mental, spiritual and moral development.
The own decision the trial court referred to the fact that
the health of the child confirmed the medical report
the expert committee of the Ministry of Health of the Kamchatka
edge. Meanwhile, in the court's decision is not assessed this health
Finally, the Court does not have the presence or absence
minor
no
diseases, not
found
whether the applicants are aware about the health of the adoptee
of the child, whether they have in the event of any of the child
with health care and carry out necessary
provide appropriate treatment, and found that there is not
near the residence of the adoptive parents of medical institutions.
Given this, the Trial Chamber for Civil Cases
Supreme Court reversed the decision of the court.
The Supreme Court has repeatedly drawn
attention of the judges on the need for a thorough investigation
these circumstances. In the review of jurisprudence on
cases of international adoption, prepared by the Supreme
Court of the Russian Federation in 2010 and sent to all
regional courts and their peers, it was pointed
inadmissibility of making such decisions, in which the assessment of personality
adoptive parents, their financial situation, housing yes ? tsya
general
phrases, without specifying what
no
allows
individualize the applicants and to understand why the court cq ? l possible
meet their application for adoption of the child.
In addressing the issue of lack of applicants diseases
Let them be adoptive parents, courts use
List of diseases, under which a person can not adopt
of the child, take him under guardianship (custody), for accepting to take mnuyu
________________________________________
Page 9
9
family of approved nnym Government Decree
Federation from May 1, 1996 ? 542.
A number of courts take into account the medical
conclusions about the state of health issued to the applicant by
test results, experts in different areas
medicine in a foreign country of which they
are. This situation in 2011 took place in almost every
Thurs ? mouth business adoption (29% of cases).
However, it should be noted that in 2011, when considering
cases of international adoption courts enforced candidates
adoptive parents, along with the existing opinion of foreign doctors
States as well as in cases where the court was presented
certificate issued by a family doctor (GP)
submit additional medical evidence obtained in
procedure established for the citizens of the Russian Federation.
For example, a judge of the regional court of Tver
at
consideration in the 2011 cases of international adoption is not
admitted sufficient proof of medical records
foreign adoptive parents, issued as a family
doctor (GP), and on the results of complex
medical examination in the country of residence. All adoptive parents
further medical examination for medical
institutions of the Russian Federation, based on which they
medical evidence presented to the court in design.
Such findings in 2011 were presented adopters
almost every second case considered by the courts in the disposition
solutions to satisfy the claims (53% of cases).
However esch ? there are cases in which assessment
his health courts take into account the medical
certificate issued by a family doctor or general practitioner,
recognizing them as valid evidence of health
adoptive parents and not requiring them to represent any other
medical reports.
In 2011, such cases have occurred for 204 cases, or 6.8%
cases dealt with the decision to grant
statements, half of which (102 cases) is for cases in
adopters who are the citizens of the United States (according to the data
presented by the courts on December 23, 2011).
Meanwhile, in the review of judicial practice in cases of this
category, prepared in 2010, the Supreme Court of the Russian
Federal courts paid attention to the fact that a licensed physician
general practice in the United States the right to put a pre-
________________________________________
Page 10
10
diagnoses, and the final - only a specialist in the definition ? nnoy
the medical field.
As children, including in adoption, have the right to
normal family, it should be noted that although the Russian
law does not prohibit the adoption of children
single persons, however, in each case, the courts
necessary to carefully examine the question of whether this is
circumstance under the laws of the State
obstacle to the adoption of the child, and whether such
citizens, especially when they adopt sick children,
to provide them with proper care, they have this
appropriate financial resources if they are ready
morally educate these children, overcoming all the difficulties have
Do they have experience raising children, whether their decision to
Adoption hasty, if they have relatives who can
assist them in raising their children, and whether they wish to provide such
help.
As of December 23, 2011, in 2011, from 393 cases
adopters were single citizens. Of these, 390 - women
the majority of whom are citizens of the United States (155)
Spain (70), Israel (50) and France (49).
In addition, in 2011 (as of December 23, 2011)
adopters were three men, unmarried (all three
are citizens of Spain). Decision to recognize these individuals
adoptive parents were taken Smolensk Regional Court (2 cases)
and the Nizhny Novgorod regional court (1 case).
In some cases, the courts, fully investigate the circumstances of the case,
reasonably refuse the application of single
adoptive parents of adopted children.
For example, the decision of the Supreme Court of the Republic of Karelia
on February 17, 2011 rejected an application
U.S. citizen adoption of two children (1998 and 1999
birth).
As established by the court, the applicant turned 39 years old, he never
not married, has no children, he does not have a parent
experience. In addition, he works full-time, data on the intention
change the work schedule in the direction of increasing the amount of free
time for the education of two children, as well as on how to
may affect its financial security, the court
was provided.
Given the aforementioned circumstances, the court COME ? we have concluded
that the applicant can not provide children with the necessary care and
________________________________________
Page 11
11
sufficient attention, the boys would not receive a full
development in the single-parent family.
In addition, the court also uch ? l that children have negative experiences
stay in the family for accepting me, it was applied to psychological
trauma: in May 2009, children were placed in a children's home in connection with the
abolition of guardianship. However, during the period when the children's home
children calm down, have the opportunity in education in
public institutions in developing a comprehensive and harmonious, in
for their exercise due care. Assessing the combined
presented evidence in the case, the court COME ? we have concluded
that the transfer of children for adoption by a U.S. citizen of
circumstances will not match their interests and lead ? t
violation of their rights.
Against decisions in civil cases
Supreme Court of the Russian Federation on May 10, 2011 this
the court's decision upheld.
In judicial practice, there are cases of adoption
foreign nationals of the child having a brother or take ? p
also deprived of parental care, for which
question of adoption applicants is not assigned. This is acceptable only
when children do not know each other, never socialize,
in different institutions. The court must determine and
discuss, as required by paragraph 3 of Article 124 of the RF IC, the question of
whether the interests of the adopted child 'intercountry adoption
no brother or sister.
Thus, one of the circumstances in which the Supreme Court
Republic of Bashkortostan dismissed the application for
adoption of the child, was the presence of the adopted child '
older sister who knows and remembers her younger sister, shows
affection for her, wants to live with her. In addition, as
the Court's findings, the applicant is single, lives alone, works
a nurse in the intensive care unit, teachers ? tons
College, Leading ? t active, in which, as we have COME ?
the court concluded, it will be unable to Reb ? NKU appropriate care and
attention it needs for health.
Based on the provisions of paragraph 1 of Article 165 of the RF IC judges
deal with cases of international adoption of children, should
investigate foreign law. This, in particular,
necessary in order to establish the absence of any obstacles
for that person to be an adoptive parent (for example, whether
constraints due to the difference in age of the adopter and
adoptee, if the application is filed for adoption alone
person, that is not this case for legislation
________________________________________
Page 12
12
the State obstacle to adoption of the child and
etc.).
The need to clarify these circumstances brought
attention of the judges and in paragraph 14 of Resolution of the Plenum of the Supreme
Court of the Russian Federation on April 20, 2006 ? 8.
It should be noted that not all court decisions reflected
what specific
legislation
foreign
State
investigated by the court and the conclusion to which l COME ? court following his
research. So 831 on a decision made with satisfaction
statements (as of December 23, 2011), no analysis
foreign law.
This lack of judges to be removed.
Given that the documents provided by the applicant,
should be properly documented (article 271 CCP RF)
The Supreme Court has repeatedly explained to the courts,
including The Resolution of April 20, 2006, ? 8
(Paragraph "d" of paragraph 14) on the need for a thorough check
documents of foreign adoptive parents for their legalization
established procedure, and in cases where no legalization
required - on the need to pay attention to compliance
order of the certificate provided for in Article 4
Convention
Abolishing
requirement
Legalization
Foreign
official documents, done at The Hague on October 5, 1961
And
is to issue the certificate on the document itself or on
separate sheet attached to the document, in compliance with the Apostille
the model annexed to the Convention.
Generalization of judicial practice has shown that the courts verify
documents submitted by applicants for the proper
clearance.
Paragraph 18 of the Resolution of the Plenum of the Supreme Court
Federation on April 20, 2006 ? 8 to the attention of ships out
that in exceptional circumstances, due to which
slowdown in the performance of an adoption may
impossibility of the execution, the court, on the basis of Article 212 of the Code of Civil Procedure of the Russian Federation,
may, at the request of the adoptive parents (parent) to appeal the decision to the
effect immediately when you need urgent hospitalization
adopted for a course of treatment and (or) operational
interference and delay jeopardizes the lives and health
the child.
As of December 23, 2011, immediately
execution were given 43 judgments, representing 1.4
% Of decisions to grant applications, and only 16
cases this was due to the need for urgent hospitalization
________________________________________
Page 13
13
of the child, and (or) the need for surgical intervention
health adopted the child.
Commendable practice of the courts, which
n
When identified in the consideration of cases of international adoption
Children violations by authorized bodies react to these
violations by issuing individual rulings.
In 2011, the provincial and its equal courts issued
21 private definition.
Management legislation systematization
and analysis of judicial practice of the Supreme Cour