The main forms of family placement of orphans. Chapter I. Legal basis for the placement of children left without parental care. Basic provisions for defense

02/08/2019 The Ministry of Education will submit a draft law on changing the procedure for the adoption of minors to the Government .

On February 8, the Civic Chamber of the Russian Federation held hearings on the draft law "On Amendments to Certain Legislative Acts of the Russian Federation on the Protection of Children's Rights." The event was attended by Deputy Minister of Education of the Russian Federation T. Yu. Sinyugina.

During her speech, T. Yu. Sinyugina said that the department was ready to submit a bill on changing the procedure for the adoption of minors to the Government.

Over the course of six months, we met several times. And the reason for our meetings was an interested and indifferent conversation and work on the bill, which today is already ready for us to submit it to the Government, - said T. Yu. Sinyugina.

For reference

In December 2018, members of the Interdepartmental Working Group under the Ministry of Education of Russia prepared a draft law “On Amendments to Certain Legislative Acts of the Russian Federation on the Protection of Children’s Rights”. The bill was posted on the federal portal of draft regulations for wide public discussion.

The draft law contains new approaches to the transfer of orphans for upbringing in families, which will allow developing the institution of guardianship, improving the conditions for training people who want to take an orphan child into their family.

For the first time, the draft law proposes to introduce the concept of "escort" into federal legislation. It is planned that this authority will be vested in authorized regional authorities and organizations, including NGOs.

Special attention in the document is paid specifically to the adoption procedure, there is added a provision on the procedure for the restoration of adoptive parents in the duties of parents, if they were previously deprived of such an opportunity.

For the first time, the Ministry of Education of the Moscow Region, together with the Soyuzmultfilm film studio, on the eve of International Children's Day, sums up the results of a drawing competition on the theme "Vacations in the Moscow Region". Participants - orphans and children left without parental care, brought up in orphanages near Moscow and in foster families.

The State Duma allowed the adoption of children by HIV and hepatitis C patients. We are talking only about cases where the child lives with a potential adoptive parent or guardian “due to already established family relations”

Russians infected with the human immunodeficiency virus (HIV) and hepatitis C may be allowed to adopt children already living with them. The State Duma plans to consider the corresponding bill prepared by the Government in the second reading in May.

Orphanhood in Russia

Worked on the theme of the issue

Svetlana BIRYUKOVA	Maria VARLAMOV	Oksana SINYAVSKAYA

Family forms of placement of children

Russian law provides four possibilities of children's device those left without parental care: adoption, guardianship (guardianship), foster family (foster family for a number of subjects), which is considered as a type of paid guardianship, and placement in an organization for orphans and children left without parental care (Fig. 1). Unlike the policy of the Soviet period, in modern Russia, priority is given to various forms of family arrangement, which gradually leads to a reduction in the proportion of children in institutions of various types, that is, the deinstitutionalization of orphanhood (Fig. 5). According to the new version of Article 123 of the Family Code, children are transferred to organizations for orphans and children left without parental care, only temporarily, for the period before their placement in a family.

Figure 1. Forms of placement of orphans and children left without parental care in modern Russia

The priority form of family placement for an orphan child or a child left without parental care is adoption, since it is of an unlimited nature, and the rights and obligations of adoptive parents and adopted children do not differ from the rights and obligations of parents and children in their own family. Relations between adoptive parents and adopted (adopted) are also as close as possible to the relationship between parents and children in the family of their own. At the same time, an adopted child, unlike a child who retains the status of an orphan, does not have the right to additional social support.

Since not all children left without parental care can be adopted, there is a need to develop temporary (for a certain period) forms of family placement for orphans. In recent decades, there has been a shift in policy focuses towards supporting family forms of temporary placement for children left without parental care. Let's take a closer look legislative regulation of issues of guardianship, guardianship and foster families .

Under Russian law, any child left without parental care, including those who were initially placed in institutions at the request of their parents, may be guardianship and guardianship(including placement in foster care). At the same time, for minors, guardianship is established up to the age of 14, guardianship - from 14 to 18. Guardianship is transformed into guardianship automatically when the child reaches 14 years of age.

The guardian, in fact, performs parental duties in full, while the child placed under guardianship retains the status of an orphan, between him and the guardian (custodian) after the end of guardianship, there are no civil law relations. At the same time, the guardian is paid funds for the maintenance of the child, and the child in care is entitled to a number of benefits.

Only adult capable citizens who must not be deprived of parental rights or have a criminal record for an intentional crime against the life or health of citizens can be appointed as guardians and trustees. Guardians are obliged to live with the wards, protect their interests, take care of maintenance, care, treatment, education and upbringing.

Guardianship and trusteeship are appointed only with the consent of the guardian, removed at the request of the guardian or at the initiative of the guardianship authorities, in case of improper performance of duties or conflict of interest of the guardian-ward. The act on the appointment of a guardian may indicate the period of validity of his powers (the period or until the occurrence of a specific event) - always when guardianship is established at the joint application of the parents. The act may be challenged by interested parties in court. From the age of 10, the consent of the child is required for the appointment of a guardian. Children in an institutional environment are not assigned guardians.

Persons wishing to adopt a child left without parental care for upbringing in their family are required to undergo psychological, pedagogical and legal training according to a program approved by the executive authorities of the constituent entities of the Russian Federation.

If parents or guardians do not take care of the child through no fault of their own, but as a result of insurmountable circumstances, then the temporary stay of the child in an organization for children left without parental care does not terminate the rights and obligations of parents and guardians, unless they write an application for registration of guardianship, or the court decides to restrict their rights. However, there is no list of such insurmountable circumstances in Russian legislation, and therefore the decision remains with the court. From practice, it follows that usually the presence of a parent in places of deprivation of liberty is not considered a good reason, because. is the result of parental misbehavior. Also, the loss of a job by the parents (especially if this continues for many months or years) or the sale of the only housing by the parents are not good reasons.

Guardianship may be appointed at the request of the parents themselves in cases where the parents are unable to fulfill their duties due to household or family circumstances. The basis for establishing such guardianship is also the existence of valid reasons, such as, for example, temporary residence in another place (including in connection with work), a long business trip (peculiarities of work, for example, a shift method), a serious illness of a parent, etc. Parents are required to identify a potential guardian and term, and the same requirements apply to the guardian as in the normal procedure. In case of refusal or non-compliance with the criteria, guardianship is not established, and parents have the right to propose another candidate. Guardianship in this case is carried out free of charge, because. Responsibility for the maintenance of the child remains with the parents.

There is also the possibility of temporary placement of a child in an orphanage at the request of the parents (often a single mother who is in difficult life circumstances). At the same time, the legislation does not establish what should be considered the difficult life circumstances of a single mother, and this leads to a rather arbitrary interpretation of this concept.

Guardianship and guardianship may be appointed by foster family agreement or, for a number of subjects, foster family agreement. Patronage as a form of education exists in 42 constituent entities of the Russian Federation.

According to the Family Code of the Russian Federation, a foster family is recognized as guardianship or guardianship of a child or children, which are carried out according to foster family agreement concluded between the body of guardianship and foster parents (or foster parent) for the period specified in this agreement.

According to the draft law “On patronage in the Russian Federation”, submitted to the State Duma of the Federal Assembly of the Russian Federation on February 7, 2013 (at the moment, legislation on foster families exists only at the level of constituent entities of the Russian Federation, however, the draft law largely repeats existing regional legislation), patronage is a form of education and provision of social assistance to children in need of state support, as well as persons from among orphans and children left without parental care, aged 18 to 23 years. Thus, unlike the foster family, patronage is a form of social assistance.

Allocate three main forms of patronage: patronage education, post-boarding patronage, social patronage. Foster care - the closest form to a foster family - is established when other forms of placement of orphans and children left without parental care (adoption, guardianship, guardianship, foster family, family-type orphanage (the concept is not defined in federal law), and for a period of not more than six months) cannot be applied. the child, that is, the legal representation of the child continues to be carried out by the organization, the responsibility for the fate of the child also remains with it.Under the proposed project, the patronage educator concludes a civil law agreement on foster care with the guardianship and guardianship authorities.For a number of regions, the agreement is tripartite in nature and includes the organization in which the child lives.Until 2008, the agreement on foster care was of a labor nature (perhaps this has been preserved in a number of regions), patronage educators were provided with paid leave, a probationary period was appointed , made an entry in the work book.

The legal nature of the agreement on a foster family in the framework of the legislation of the Russian Federation is not defined. Lawyers have numerous discussions about the type of this document: some refer it to family law contracts, others to civil law contracts, and others to labor contracts. The nature of the document allows us to define it as an agreement on the provision of services for compensation, which implies deductions of insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds.

The total number of children in a foster family, including relatives and adopted children, as a rule, should not exceed eight; According to the draft law, no more than three children can be transferred to foster care.

On September 30, 2013, the draft Federal Law No. 217944-6 "On patronage in the Russian Federation" received a negative expert opinion and its consideration was suspended. From the point of view of the Council under the President of the Russian Federation for the Codification and Improvement of Civil Legislation, “the types of patronage named in the draft have different goals, objectives, principles for their implementation and legal consequences, imply the participation of completely different subjects in such relations, and therefore have already been regulated by different federal laws that do not quite coincide in goals and objectives.” From the point of view of the prospects for the development of foster parenthood in Russia, it seems important that the very idea of creating a form of temporary placement for children for a period of no more than 6 months was negatively assessed by the Council, which, according to the cited conclusion, resembles the American system of foster families, “under which a child in the period before he reaches the age of majority can“ replace ”up to ten foster families. It seems that the issue of creating such an institution in Russia needs a deep detailed study and social justification from the point of view of the consequences of its introduction.

Social patronage also seems to the Council to be a special unnecessary form of interference in family affairs - “the procedure for conducting preventive, preventive work with “unfavorable” families is regulated by the Family Code of the Russian Federation (institutions for restricting parental rights, deprivation of parental rights, taking away a child in case of a direct threat to his life, etc.), Federal Law of June 24, 1999 No. The limitation of preventive work to instruments of restriction and deprivation of parental rights and the lack of understanding at the level of the country's leadership of the need to introduce preventive measures pose a serious problem in the prevention of primary orphanhood. In the overwhelming majority of cases, problem families come to the attention of specialists already at the stage of virtually complete degradation, due to the need to quickly remove the child from the current unfavorable environment. At the stages following the identification, the system of existing measures is also aimed more at the rehabilitation of the child and the search for a suitable substitute family than at work to restore conditions in the birth family - this, in particular, is evidenced by the dynamics of the number of children returned to the birth parents (Fig. 6).

There is the concept of preliminary guardianship and guardianship - for cases when the ward must immediately appoint a guardian. Preliminary guardianship is established for up to 6 months (in extreme cases - up to 8 months). An act can also be drawn up in the event of the child being taken away from the parents. The act provides for a simplified form of verification of the guardian - upon presentation of a passport and inspection of housing conditions (without requests to internal affairs bodies, registry offices, medical and other organizations). The temporary guardian has all the rights, with the exception of the right to dispose of property (this right is also limited for permanent guardians - many actions require the consent of the guardianship authorities).

In Russian legislation, there is also the concept temporary transfer of a child- this form is not a form of placing a child in a family and is carried out on the basis of an order from the administration of the organization for orphans and children left without parental care. Temporary transfer is carried out for a period of not more than three months - in exceptional cases, up to 6 months with the consent of the guardianship and guardianship authorities.

Another possibility for the temporary rehabilitation of a child in a family, which is not a form of family arrangement, is the so-called. family educational groups. This form involves assigning to the institution the function of the legal representative of the pupil to protect his rights and interests, the selection and training of the educator, the provision of constant psychological, medical and social patronage of the pupils and their full financial support. The creation of such groups as structural subdivisions of institutions is recommended, in particular, by the Decree of the Ministry of Labor of the Russian Federation dated March 29, 2002 No. 25 “On Approval of the Recommendations on the Organization of the Activities of Specialized Institutions for Minors in Need of Social Rehabilitation” in social rehabilitation centers, social shelters and centers for helping children left without parental care. Family educational groups are created by order of the director of the institution on the basis of an employment contract concluded with the teacher of the group. This form of social adaptation and socio-psychological rehabilitation of minors is not fixed at the federal legislative level, and is presented exclusively in the documents of the Ministry of Labor and the legislation of a number of constituent entities of the Russian Federation. There are also other forms of additional “family” education that are not enshrined at the federal legislative level: a weekend family, guest mode, mentoring. Obviously, they cannot be considered as an alternative to guardianship (guardianship) or placement of a child in a foster family.

In connection with the intensified controversy on the problems of identifying orphans, keeping them in institutional institutions and placing children in family forms of education in 2012-2013, a number of regulatory documents in this area are adopted. At the end of 2012, the Decree of the President of the Russian Federation "On some measures to implement state policy in the field of protecting orphans and children left without parental care" was adopted. Its implementation implies the introduction of a significant number of changes to the current system of guardianship and guardianship in a short time. Thus, until February 15, 2013, it was envisaged: (1) the creation of mechanisms for legal, organizational, psychological and pedagogical support for citizens who intend to take children; (2) simplification of procedures for the transfer of orphans to family forms of placement; (3) improving medical care for orphans; (4) establishment of a procedure for medical examination of citizens who intend to take children into care; (5) an increase in the compensation payment for caregivers of disabled children; (6) development of mechanisms to stimulate regional policy; (7) bringing the average salary of employees in this area to the average salary in the region by 2018; (8) improvement of the data bank on orphans and children left without parental care. In addition, before March 1, 2013, it was necessary to ensure: (1) the provision of tax benefits to adoptive parents; (2) increasing the social pension for disabled children; (3) an increase in the lump sum for the adoption of a child; (4) changing the norms of the age difference between the adopter and the child. The main directions of the decree were implemented in the Federal Law of July 2, 2013 No. 167-FZ "On Amending Certain Legislative Acts of the Russian Federation on the Placement of Orphans and Children Left Without Parental Care", Decrees of the Government of the Russian Federation of February 14, 2013 No. 118 and of July 2, 2013 No. 558 "On Amendments to Certain Acts of the Government of the Russian Federation on the Placement of Orphans and Children left without parental care for family upbringing” and in the February edition of the Government Decree of 18.05.2009 No. 423 “On certain issues of guardianship and guardianship in relation to minor citizens”.

The adopted changes are aimed at improving the mechanisms for supporting citizens of the Russian Federation who wish to adopt children left without parental care (introducing training standards, clarifying medical criteria, softening the 16-year norm in the age difference, excluding the housing criterion from the Family Code), clarifying the procedure for identifying and registering children left without parental care, expanding the rights of local governments. The law establishes the right of parents and persons replacing them to assist them in providing the family with medical, psychological, pedagogical, legal, social assistance, simplifies the reporting form of guardians (copies of payment documents for food expenses, basic necessities and other minor household needs are excluded). From January 1, 2014, requirements are established for the professional knowledge and skills of employees of guardianship and guardianship bodies necessary for the performance of their official duties, exemplary additional professional programs. In addition, the duties of guardianship authorities are supplemented by the function of informing citizens who have expressed a desire to accept a child for upbringing in a family about the procedures and features of the forms of placement. The maximum terms for transferring temporary and provisional guardianship are significantly extended. Amendments are being made to the Federal Law of November 21, 2011 No. 324-FZ “On free legal assistance in the Russian Federation” - according to Article 20, the number of persons entitled to receive free legal assistance includes adoptive parents and persons wishing to take into their family a child left without parental care, if they apply for free legal assistance on issues related to ensuring and protecting the rights and legitimate interests of children. Thus, there has been a clear trend towards increased professionalization of foster parenting, which is in line with global trends in this area and should help improve the quality of raising children left without parental care in families of various types.

At the same time, the so-called “Dima Yakovlev Law” was signed, which prohibits the adoption of Russian orphans by US citizens, which significantly worsened the situation of disabled children in residential institutions who have lost parental care. In addition, the legislation introduces a ban on adoption, guardianship and guardianship for persons who are in a union concluded between persons of the same sex, recognized as marriage and registered in accordance with the laws of the state in which such marriage is permitted, as well as persons who are citizens of the said state and are not married. Children may be placed for adoption by citizens of the Russian Federation permanently residing outside the territory of the Russian Federation, foreign citizens or stateless persons who are not relatives of the children, only after twelve months have elapsed from the date of receipt of information about such children in the federal data bank.

In order to support Russian adoptive parents and as part of the implementation of the Presidential Decree, in February 2013, the amount of monthly payments to non-working able-bodied persons caring for children with disabilities and disabled children from childhood of group I was increased; in July 2013, amendments were adopted to Article 12 of Federal Law No. 7 years, blood brothers and sisters increases to 100 thousand rubles for each such child.

The tightening of requirements for foreign adoption of Russian orphans cannot be assessed unambiguously. On the one hand, the current situation is such that adoption within the country remains highly selective and applies mainly to healthy young children, while children often with serious health problems were transferred to other countries for adoption. In the short term, the situation of these categories of children is likely to seriously deteriorate. At the same time, the general course towards supporting adoption within the country and the development of various forms of temporary family placement for orphans within the country can be viewed as positive, since in the end, under certain conditions, it can lead to an improvement in the policy towards children and the quality of medical and social services for children in Russia. The general global policy trend towards orphans is now also aimed at supporting domestic adoptions and limiting adoptions to other countries. Another thing is that in order to minimize the negative social consequences of restricting international adoptions, legislators should consider a certain transitional period. It would be necessary to allow the export of children abroad who, by the time the law was adopted, had already found adoptive parents. In addition, it would be advisable to introduce restrictions gradually, as opportunities develop for domestic adoption of the most vulnerable categories of children.

In addition to the above-mentioned forms of placement of children left without parental care, there are other forms that have not received clear legislative consolidation and are widely used in practice.

Patronage can be attributed to such forms of placement of children - this is a form of education in which children who have lost parental care are transferred for education to the families of citizens under an agreement concluded by an authorized state body and a person (foster caregiver) who has expressed a desire to take the child for education. The patronage educator is paid a certain remuneration, and he undertakes to raise and support the child as a member of his family and is recognized as the guardian (trustee) of his pupil. Children who do not have a certain status are transferred under patronage or if their status does not allow them to be transferred for guardianship or adoption. This form is based on the delimitation of rights and obligations to protect the rights of the child between parents (if they are available and not deprived of their rights), an authorized service of the guardianship authority and a foster caregiver.

Patronage is a form that replaces temporary placement in a shelter and is often used as a transitional form to guardianship or adoption, after the child has received the appropriate status. The term for placing a child under patronage may be different, and depends on the situation. Responsibility is shared between the foster caregiver, the authorized state body, the parents of the child and the territorial guardianship authorities. Patronage is the most "flexible" form of device on which a child of any age can be placed, regardless of his legal status, state of health and for any period (from 1 day until the child reaches 18 years of age).

The positive aspects of patronage include the fact that it becomes possible to help the child in any situation, there is no need to keep the child in an orphanage and wait for years when the court finally decides on the status of his parents, or not to remove him from the family and wait for obvious evidence of violence to appear, for the first time there is a chance for a sick child left without parents to also find a family (in this case, it is important that the authorized institution will take on a significant part of the care for the health and provision of the child).

Patronage is carried out on a reimbursable basis. The patronage educator is paid a salary and the length of service is counted. A patronage educator must undergo special training (training) in an authorized state body. The advantages of this type of device are as follows: it is possible to place a child in the family of a foster caregiver who does not have a status that allows him to be placed under guardianship or adopted, that is, otherwise doomed to end up in an orphanage, orphanage; maintenance is paid for the child, benefits are provided for transport services, housing. Upon reaching the age of 18, a patron is allocated housing, if he does not have one. The authorized state body organizes education, recreation and treatment of the patronized, assists in education, in solving complex problems. Target funds are paid for repairs, purchase of furniture, and so on. The disadvantages may be the following factors: work with the child is carried out according to the plans of the authorized state body, constant monitoring and reporting on the upbringing and spending of funds, the child can be removed from the caregiver's family at any time, by decision of the authorized state body, contacts with the parents and relatives of the child, as a rule, are mandatory and their regulations are determined by the authorized state body. This form is still used only in certain regions of Russia, but in recent years foster care in our country has begun to develop actively. The distribution of the form of foster care is carried out by the Ministry of Education and Science of the Russian Federation, but so far this form has not been enshrined in federal legislation and is regulated by the laws of the constituent entities of the Russian Federation.

The temporary forms of the device can also include a guest mode, or short-term patronage - this is a form of placing a child in a family for weekends and holidays. Any citizen, having drawn up the relevant documents and received a guest permit from the guardianship and guardianship authorities, has the right to invite a child (children) from an orphanage to visit him on weekends and holidays.

This is especially true for children over seven years of age. This can be both the first step towards other relationships (custody or adoption), and remain an independent form. The guest mode gives them the opportunity to visit the family at least as a guest, to see the relationship between people and everyday life. Also, being a guest helps to acquire some skills and abilities that cannot be acquired within the walls of an orphanage. And finally, the child is simply psychologically resting from a permanent stay in an institution.

Family-type orphanages are a promising form of raising children left without parental care. The rules for organizing a family-type orphanage were approved by Decree of the Government of the Russian Federation of March 19, 2001 No. 95 “On a family-type orphanage” Collection of Legislation of the Russian Federation. - 2001. - No. 13. - Art. 1251. The main goal of organizing a family-type orphanage is to create favorable conditions for the upbringing, education, rehabilitation and preparation for independent life of orphans and children left without parental care in a family environment. A family-type orphanage is created, reorganized and liquidated by decision of the executive authority of a constituent entity of the Federation or a local government. Conditions for creating such a house: the desire of both spouses who are in a registered marriage to take care of at least 5 and no more than 10 children; taking into account the views of all cohabiting family members, including children, and from the age of 10, their consent is required. The total number of children, including relatives and adopted (adopted), should not exceed 12 people. In order to obtain an opinion on the possibility of being educators and taking care of children, the spouses submit a corresponding application to the guardianship and guardianship authorities at their place of residence and submit the necessary documents. On the basis of the application, the documents attached to it, as well as the act of examining the living conditions of the spouses, the guardianship and guardianship authorities draw up a conclusion within one month from the date of submission of the application. Preference is given to spouses who have experience in raising children, working in children's institutions, who are adoptive parents or guardians (trustees). The family orphanage is financed by the founder, based on the norms for providing pupils of educational institutions for orphans. The educators of a family-type orphanage are subject to the terms of remuneration, the provision of annual leave, as well as benefits and guarantees established for employees of educational institutions for orphans and children left without parental care. They enjoy the priority right to receive vouchers for children, including free ones, to sanatoriums, health camps, as well as rest houses and sanatoriums for recreation and treatment together with children.

The SOS Children's Village is a special form of raising children left without parental care. Each family has 6-8 children, boys and girls of different ages. If a child has a sibling, they must live in the same family home. At the head of the family is a mother-educator who brings up children, gives them care and love. The Children's Village consists of 10-12 family houses. Each family lives in a separate house. The Children's Village is managed by the director. Together with his family, he lives in the village, providing help and support to his mothers in word and deed. SOS-moms have assistants, they are called "aunts". If necessary (mother's illness, vacation, and so on), the aunt will replace the mother next to the children. She also provides some assistance in housekeeping. Among the staff of the Children's Village there are such specialists as a teacher, a psychologist and a teacher-organizer. In addition, administrative and technical personnel (accountant, secretary, foreman, driver, security officer) work in the village.

As can be seen from all of the above, adoption, foster family, guardianship and guardianship are certainly priority forms of placement for children left without parental care, but they should not be limited to them, since other forms of placement for children undoubtedly have their advantages and may well receive further development in the future. Whatever the form of placement in a family chosen by the guardianship and guardianship authorities - family or temporary - it must first of all provide the child with a decent lifestyle, upbringing, education, and most importantly, it must ensure the normal socialization of the individual.

As noted, adoption is an individual permanent (termless) form of placement of children left without parental care. For convenience, the legislator combines the terms "adoption" and "adoption" into one - "adoption".

Legal regulation of relations on adoption is carried out on the basis of the norms of Ch.

19 of the IC of the Russian Federation, the Federal Law “On the State Data Bank on Children Left without Parental Care”, as well as the provisions of the Rules for the transfer of children for adoption (adoption) and monitoring the conditions of their life and upbringing in families of adoptive parents in the Russian Federation188 and some other regulatory legal acts. In addition, when studying issues related to adoption, one should take into account the clarifications of the Plenum of the Supreme Court of the Russian Federation (Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 No. 8 “On the application of legislation by the courts when considering cases of adoption (adoption) of children”).

The specificity of adoption as a form of placement of children consists, firstly, in the indefinite nature of legal relations and, secondly, as a consequence, in a special legal relationship between the adopter and the adopted child, reminiscent of the relationship between a parent and a child.

Indeed, adoption is permanent, while, for example, guardianship (guardianship) is terminated when the child acquires full civil capacity. The only exceptions are possible cases of cancellation of adoption.

When adopting, the rights and obligations of the adopted children and adoptive parents are equated to the rights and obligations of children and parents. Thus, adoption bears a resemblance to first-degree kinship. This feature of adoption is confirmed by the provisions on the secrecy of adoption (Article 139 of the UK). Unlike some other legal systems, domestic law treats adoption as a sacrament. As a rule, adopted children are not aware of the absence of blood relationship with the adoptive parent, which brings together the relationship of origin and adoption. In addition, the grounds for canceling adoption are in many ways similar to the grounds for depriving parents of parental rights. Like first-degree kinship, adoption entails significant legal consequences - the emergence of the adopted child's right to inherit from the adoptive parents (Article 1147 of the Civil Code), the right to use the residential premises of the adoptive parent (Article 137 of the UK; Article 31 of the LC), etc.

The very serious consequences of adoption have led to the fact that adoption is carried out in a judicial proceeding. This was not always the case, since 98 of the Code of Civil Procedure of the RSFSR provided for an administrative procedure for adoption (“adoption is carried out by a decree of the head of a district, city, district administration in a city”). Meanwhile, it is obvious that such phenomena in the life of a child as the appearance of new “parents” with whom he will be connected forever, as well as the final interruption of the legal connection with blood parents, cannot be accompanied by an administrative form of decision-making. Modern standards for the implementation of human rights require the use of a judicial form of exercising the right of a child to live and be raised in a family, as well as judicial methods for protecting the rights of a child's natural parent.

Traditionally, adoption is called a priority form of placement of children. The priority nature in this case means that when choosing a form of placement for a child, adoption is the most appropriate of all. The priority of adoption is associated with the peculiarities of this phenomenon for Russian family law. From the point of view of Russian law, adoptive parents must accept the adopted child as their own and completely replace his parents. Therefore, in the Russian Federation there is no "trial" or "temporary" adoption - such a practice when adoptive parents "experiment" trying to pick up a child for themselves, and children move from family to family. As a temporary device, as mentioned above, Russian legislation considers the transfer of children under guardianship (guardianship) or in a foster family.

The choice of the form of the child's device depends on many circumstances. In accordance with Art. 20 of the UN Convention on the Rights of the Child, the state, while providing a replacement for the child of his family environment, must take into account “the desirability of continuity in the upbringing of the child and his ethnic origin, religious and cultural affiliation and mother tongue.” A similar rule is enshrined in paragraph 1 of Art. 123 RF IC. Paragraph 2 of Art. 124 of the Code additionally indicates that when adopting a child, it is necessary to ensure the possibility of full-fledged physical, mental, spiritual and moral development. One of the components of mental and spiritual development is the possibility of related communication with brothers and sisters. Legislation as a general rule prohibits the adoption of brothers and sisters by different persons. However, the court may derogate from this rule if such an adoption is in the interests of the children. Resolution No. 8 of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 “On the application by the courts of legislation when considering cases of adoption (adoption) of children” clarifies that in cases where the adopter does not request that brothers or sisters of the adopted child be also transferred to him, adoption is permissible if it is in the interests of the child (for example, children are not aware of their relationship, did not live and were not brought up together, are in different children's institutions, cannot live and be brought up together for health reasons).

The subjects of legal relations of adoption are adoptive parents and adoptees189. In relation to adoptive parents, the law imposes many special requirements, but any minor children left without parental care can be adopted (clause 1, article 124 of the UK). At the same time, it must be borne in mind that adoption is also possible in relation to a child under the care of a parent. We are talking about the adoption of children by stepfathers or stepmothers, i.e. the spouses of the parent of the child. In this case, in fact, the legalization of relations for the upbringing of someone else's child takes place.

In order for the adoption to take place, the child must go through the procedure for registering children left without parental care (see § 1 of this chapter). The legal basis for registering children to be adopted and persons wishing to adopt children is laid down in paragraph 3 of Art. 122 of the RF IC, as well as in the Federal Law “On the state data bank on children left without parental care”. Decree of the Government of the Russian Federation of April 4, 2002 No. 217 (as amended on March 10, 2005) approved the Rules for maintaining a state data bank on children left without parental care and exercising control over its formation and use, and by order of the Ministry of Education of the Russian Federation of June 28, 2002 No. 2482 - The procedure for organizing work on maintaining a state data bank of children left without parental care.

The state of health of the child does not affect the realization of his right to live and be brought up in a family, therefore, seriously ill children can also be adopted. Often candidates for adoptive parents are denied adoption on the grounds that the child has a serious illness. Such actions are against the law.

A candidate for adoptive parents, like an adoptee, also has a special legal status. As part of his legal personality, there is a special legal possibility - the right to be an adoptive parent. Such an opportunity is not inherent to all individuals, but only to those who meet the requirements established by law, the purpose of which is to ensure that the child adopted into the family has the opportunity for full-fledged physical, mental, spiritual and moral development.

Moreover, the legislator even mentions the priority right to adoption (clause 3, article 127 of the UK). Its subjects are the relatives of the child, and the condition for the implementation of this right is, of course, the observance of the interests of the child.

Requirements for the identity of the candidate for adoptive parents: 1)

related to the fact that the adoptive parent has sufficient legal capacity. Cannot be adoptive parents: -

persons deprived by court of parental rights or limited by court in parental rights; -

former adoptive parents, if the adoption is canceled by the court due to their fault; -

persons suspended from the duties of a guardian (custodian) for improper performance of the duties assigned to them by law; 2)

related to the fact that the adoptive parent has sufficient legal capacity. Cannot be adoptive parents: -

minors; -

persons recognized by the court as incapable or partially capable; -

spouses, one of whom is recognized by the court as incapable or partially incapacitated; 3)

related to the state of health of the adoptive parent. Diseases such as tuberculosis (active and chronic) of all forms of localization in patients of I, II, V groups of dispensary registration, diseases of internal organs, the nervous system, the musculoskeletal system in the stage of decompensation, malignant oncological diseases of all forms of localization, drug addiction, substance abuse, alcoholism, infectious diseases before being removed from the dispensary registry, mental illness, as well as all diseases and injuries that led to disability of groups I and II, precluding working capacity, are an unconditional reason m to denial of adoption190. It has been repeatedly noted in the legal literature that this list needs to be clarified; 4)

relating to the personal (moral) qualities of a candidate for adoptive parents. It is prohibited to be adoptive parents by persons who, at the time of establishment of adoption, have a criminal record for an intentional crime against the life or health of citizens. In addition, persons who are not married to each other cannot jointly adopt the same child. The law of the Russian Federation recognizes only a registered marriage of spouses of different sexes. Therefore, various forms of extramarital cohabitation do not currently provide grounds for the joint adoption of children. However, this does not mean that an unmarried woman or an unmarried man cannot be adoptive parents at all. Such person may act as the sole adoptive parent of the child; 5)

related to the material and living conditions of the adoptive parent. These conditions require more detailed explanation. As a general rule, there is a ban on adoption: -

by persons who, at the time of establishment of adoption, do not have income that provides the adopted child with the subsistence minimum established in the constituent entity of the Russian Federation in whose territory the adoptive parents (adoptive parent) live191; -

persons living in residential premises that do not meet sanitary and technical rules and regulations192.

However, the Family Code establishes exceptions to this rule: -

living conditions and earnings of stepfathers and stepmothers who adopt stepchildren or stepdaughters do not require compliance with these norms; -

the court may allow adoption by persons whose material and living conditions differ from those listed in the law, but only taking into account the interests of the adopted child and circumstances worthy of attention. In other words, if a candidate for adoptive parents lives, for example, in a rural area that is not provided with the necessary communications to bring housing in line with sanitary and technical rules and regulations, or receives earnings in an amount slightly different from the required amount (receives earnings in kind), then the court, having weighed all the circumstances, may allow adoption. Also, the court may take into account the special attachment of the child to a candidate for adoptive parents who does not have an adequate level of material and housing security. For all that, adoption by persons who do not have a permanent place of residence is categorically unacceptable;

6) a special requirement for the identity of the adopter is the condition on the age difference between the adopter and the adopted child.

In accordance with Russian legislation, the maximum minimum age difference between the adopter and the adopted child is set at 16 years. This rule is dictated by the main property of adoption - similarity with first-degree kinship.

Exceptions to it:-

it is not required to take into account the difference in age when adopting a child by a stepfather (stepmother), since the child lives with his parent and actually already communicates with his stepfather or stepmother; -

for reasons recognized by the court as valid, the age difference may be reduced. In paragraph 8 of the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation of April 4, 2002 No. 217 (as amended on March 10, 2005), courts are recommended to allow adoption with an age difference of less than 16 years, if the child feels affection for the person who wants to adopt him, considers him his parent, etc.

In order to become an adoptive parent, in some cases it is also necessary to go through a special registration procedure. In accordance with the Federal Law “On the State Data Bank on Children Left without Parental Care”, adoptive parents may submit documented information about themselves to the state data bank (regional or federal operator). Under this condition, they will be able to access confidential information stored in the state data bank about children left without parental care (children's profiles).

At the same time, the majority of adoptive parents - Russian citizens - are currently looking for children they would like to adopt on their own, without turning to the state data bank. They only first receive a conclusion from the guardianship authorities on the possibility of being an adoptive parent, collect the necessary documents and apply to the court with an application for adoption.

In turn, foreign citizens and stateless persons wishing to adopt children who are citizens of the Russian Federation are subject to mandatory registration in regional or federal data banks on children in the manner prescribed by Sec.

IV of the Rules for maintaining a state data bank on children left without parental care, and exercising control over its formation and use. Accounting is carried out on the basis of an application of a candidate for adoptive parents with the attachment of the documents listed in paragraph 20 of these Rules.

The adoption procedure includes the following steps: 1.

Submission by a person wishing to adopt a child of an application to the guardianship and guardianship authority at the place of his residence with a request to give an opinion on the possibility of being an adoptive parent. Documents are attached to the application in accordance with the list established by paragraph 6 of the Rules for the transfer of children for adoption (adoption) and monitoring the conditions of their life and upbringing in the families of adoptive parents on the territory of the Russian Federation. 2.

Inspection by the body of guardianship and guardianship of the living conditions of the applicant and preparation within 15 working days from the date of acceptance of the application of the conclusion on the possibility of the applicant to be an adoptive parent. If the issuance of such a conclusion to the applicant is refused, then the body of guardianship and guardianship is obliged to inform him of this within five days.

After receiving such a conclusion, a candidate for adoptive parents, who independently received information about a child whom he could adopt, has the right to apply to the court with an application for adoption (provided that there was a fact of personal contact between this candidate and the child).

At the same time, the current legislation provides for the possibility of a candidate for adoptive parents to apply to the state data bank on children left without parental care (third and fourth stages). 3.

Appeal of a candidate for adoptive parents to a regional or federal operator of a state bank about children left without parental care. In accordance with paragraph 4 of Art. 5 of the Federal Law "On the State Data Bank on Children Left Without Parental Care", a citizen who wants to adopt a child for upbringing in his family himself provides information about himself to the regional or federal operator. The operator of the data bank shall document information about citizens who wish to adopt children for upbringing in their families in the form of a questionnaire, which indicates both information related to the identity of the applicant and information about the child whom the citizen would like to take up for upbringing in his family (Article 7 of the Federal Law). 4.

Selection of suitable children for the candidate for adoptive parents. The data bank operator contacted by the adoptive parent must provide all information available to him about suitable children for the applicant. If information about any of the children suits the candidate for adoptive parents, then the operator of the children's data bank issues him a referral to the institution where the child is located to visit him. It is necessary to notify the guardianship and guardianship authority at the actual location of the child left without parental care about the upcoming visit. 5.

Visiting a child and personal communication with him (clause 2, article 125 of the UK). In accordance with paragraph 12 of the Rules for the transfer of children for adoption (adoption) and monitoring the conditions of their life and upbringing in the families of adoptive parents in the territory of the Russian Federation, the candidate for adoptive parents is obliged to personally get to know the child and establish contact with him, familiarize himself with the documents of the adopted child and confirm in writing the fact of familiarization with the medical report on the state of health of the child193. If establishing contact with the child is not possible (due to his age or state of health), this, however, is not an obstacle to adoption. 6.

Appeal of a candidate for adoptive parents to the court with an application for adoption and judicial consideration of this application. Consideration of cases on establishing the adoption of a child is carried out by the court in the order of special proceedings in accordance with the rules established by Chapter. 29 Code of Civil Procedure of the Russian Federation.

Proceedings in the adoption case are not limited to the review by the court of the documents submitted by the applicant. In accordance with paragraph 2 of Art. 272 of the Code of Civil Procedure of the Russian Federation, the guardianship and trusteeship body submits additional information to the court. Moreover, participation in the court session of representatives of this body (as well as the candidate for adoptive parents, the prosecutor, a child who has reached the age of 14) is mandatory. The court may consider it necessary to involve in this case the child's parents, other interested persons, as well as the child himself between the ages of 10 and 14. These participants in the proceedings may, among other things, provide the court with information preventing adoption. 7.

State registration of adoption on the basis of a court decision that has entered into legal force in the civil registry office. The procedure for state registration of adoption is determined by Ch. 5 of the Federal Law "On acts of civil status".

The adoption procedure is also related to the need (or expediency) of obtaining consent to adoption from certain persons: -

the child himself, who has reached the age of 10; -

the child's parents; -

guardians (custodians), foster parents, heads of institutions in which there are children left without parental care; -

adoptive parent's wife.

However, from the provisions of Art. 129-133 of the RF IC it follows that in many cases the objections of the listed persons are not an unconditional obstacle to adoption. It is especially important to determine in which cases the consent of his parents is not required for the adoption of a child (Article 130 of the UK).

The consent of the child's parent to his adoption can be of two types: with an indication of a specific candidate for adoptive parents or without an indication of a specific person. The law also establishes special legal forms in which such consent must be given: an oral statement made in person during the trial; a written application, notarized or certified by the head of the institution in which the child is left without parental care, or by the guardianship and guardianship authority at the place where the child was adopted or at the place of residence of the parents.

Thus, adoption as the basis for the emergence of family legal relations is an actual composition that includes various legal facts, the final of which is a court decision on adoption that has entered into legal force, directly giving rise to the rights and obligations of adoptive parents and adopted children. All kinds of legal requirements, observance of which is mandatory during adoption (the consent of certain persons, the state of health of the adopter, his financial situation, etc.), are the conditions for adoption.

Adoption, as a de facto composition, also has a terminating value (clause 2, article 137 of the UK).

Legal consequences of adoption. As already mentioned, the rights and obligations of the adoptive parent and the adopted child arise from the day the court decision on the adoption of the child comes into force. Within three days from the date of entry into force of such a decision, the court sends an extract from it to the civil registry office at the place where the decision was made. After the state registration of adoption, the child's former parents will no longer be able to obtain a duplicate of the certificate of state registration of the child's birth and exercise the rights associated with motherhood or fatherhood.

The legal consequences of adoption are primarily a set of rights and obligations that coincide with parental ones (Chapter 12 of the UK). The most important legal consequence of adoption is the possibility of raising a child and personal communication with him. In accordance with paragraph 20 of the Rules for the transfer of children for adoption (adoption) and monitoring the conditions of their life and upbringing in the families of adoptive parents on the territory of the Russian Federation, adoptive parents are obliged to personally pick up the child at the place of his residence (location) upon presentation of a passport or other document proving the identity of the adoptive parent, and a court decision.

Adoptive parents not only have the right and obligation to raise a child, but are also responsible for his upbringing and development, are obliged to take care of his health, physical, mental, spiritual and moral development. Moreover, their right to raise an adopted child is preferential (Article 63 of the UK).

Adoptive parents are obliged to support the child, ensure that the child receives basic general education, and, taking into account his opinion, have the right to choose an educational institution and form of education until the child receives basic general education. Adoptive parents have the right and obligation to protect the rights and interests of the adopted child, they are his legal representatives and act in defense of his rights and interests in relations with any individuals and legal entities, including in courts, without special powers. Like parents, adoptive parents have the right to demand the return of the child from any person who retains him not on the basis of the law or on the basis of a court decision. Since adoption is equivalent in consequences to first-degree kinship, marriages are prohibited between adoptive parents and adopted children (Article 14 of the UK)

The peculiarity of the legal consequences of adoption (as well as the legal consequences of the birth of a child) is that family ties arise between adopted children and their offspring, on the one hand, and adoptive parents and their relatives, on the other hand. Thus, the adoptive parent, by his actions, regardless of the desire, for example, of his parents, creates new family ties for them. However, in addition to the general consequences of adoption arising from its nature, there may be special ones, including: -

change in the name, patronymic and surname of the child (Article 134 of the UK); -

Identification and placement of children left without parental care. Minor children may be temporarily or permanently deprived of parental care (care, protection, upbringing, care) as a result of various life circumstances. When these cases occur, minor children are entitled to special protection and assistance provided by the state.

The absence of parental care gives rise to a special legal status of the child. Children classified as left without parental care:

- have the right to be placed in a family (paragraph 3, clause 2, article 54 of the UK);
- are recorded in the state data bank on children left without parental care;
- have the right to social benefits and guarantees.

The general principles, content and measures of state protection of orphans and children left without parental care are defined in Section VI of the UK, Federal Laws of December 21, 1996 No. 159-FZ “On additional guarantees for social support for orphans and children left without parental care”, dated April 16, 2001 No. 44-FZ “On the state data bank on children left without parental care”, dated 24.0 4.2008 No. 48-FZ "On guardianship and guardianship", as well as in other regulatory legal acts.

The legislative definition of the term "children left without parental care" is given through an approximate list of grounds (reasons) for the loss of parental care by children (persons under the age of 18):

a) the death of parents, the deprivation of their parental rights, the restriction of their parental rights or the recognition of parents by a court as incompetent;
b) evasion of parents from raising children or from protecting their rights and interests, including the refusal of parents to take their children from educational institutions, medical institutions, institutions of social protection of the population and other similar institutions;
c) prolonged absence of parents, illness of parents and other reasons (parents serving sentences in places of detention, being in custody during the investigation, permanent residence of parents in another locality, recognition of parents as missing, search for them by internal affairs bodies in connection with evasion from paying alimony). The legislator refers to orphans as persons under the age of 18 whose both or only parents have died (Article 121 of the UK, Article 1 of the Federal Law “On Additional Guarantees for Social Support for Orphans and Children Left without Parental Care”).

The identification, registration and placement of children left without parental care is carried out by the guardianship and guardianship authorities, they also carry out subsequent control over the conditions of their maintenance, upbringing and education (clause 1 of article 121 of the UK).

All children left without parental care, after their identification, must be taken into account and registered, and information about them is entered into the state data bank on children left without parental care.

Children left without parental care are subject to transfer to a family for upbringing (adoption (adoption), under guardianship or guardianship, to a foster family or, in cases provided for by the laws of the constituent entities of the Russian Federation, to a foster family), and in the absence of such an opportunity, temporarily, for the period before their placement in a family, they are transferred to organizations for orphans and children left without parental care, all types of educational, medical organizations and organizations providing social services (paragraph 1 of article 1 23 UK).

Adoption (adoption). Adoption is a priority form of placement of children left without parental care.

Adoption- This is a permanent (termless) form of placement of children left without parental care. Adoption does not stop, while, for example, guardianship (guardianship) stops with the acquisition of full civil capacity by the child.

When adopting, the rights and obligations of the adopted children and adoptive parents are equated to the rights and obligations of children and parents. Adoption, in its legal consequences, is equated to first-degree kinship.

Adoption is carried out in a court of law. A court decision on adoption terminates the personal non-property and property rights of adopted children in relation to their parents (their relatives) and releases them from their respective obligations.

Custody and guardianship of children. Guardianship (guardianship) is a temporary form of placement of a child left without parental care, which involves only individual assistance, care and care from a certain individual (certain persons). Guardianship (guardianship) is intended primarily to make up for the lack of legal capacity of the ward child, as well as for his upbringing.

Guardianship (guardianship) is a complex institution of legislation, the norms of which are present in the Civil Code (Articles 31-40), the Family Code (Articles 145-153.2), the Federal Law of April 24, 2008 No. 48-ФЗ “On Guardianship and Guardianship” (hereinafter referred to as the “Law on Guardianship and Guardianship”) and other regulatory legal acts.

Guardianship is established over minors, i.e. persons under the age of 14 (Article 32 of the Civil Code). Guardianship is established over minors aged 14 to 18 who are left without parental care (Article 33 of the Civil Code). Guardianship (trusteeship) can be established both for children and adults (Article 31 of the Civil Code).

A child placed under guardianship (guardianship) retains its property and personal non-property rights (Article 148 of the UK) in full.

The obligation to educate a child (to take care of his mental, spiritual and moral development) is at the same time the right of a guardian, who can choose any means for upbringing.

The obligation of guardians (custodians) of minors to live with their wards (Article 36 of the Civil Code).

The obligation to ensure that the child receives a basic general education (clause 4, article 43 of the Constitution of the Russian Federation, article 148.1 of the UK).

The obligation to take care of the child's health and physical development is also one of the duties of a guardian (custodian).

Obligation to ensure that the child has the opportunity to communicate with relatives.

Duty to represent and protect the rights and interests of the child.

The guardian, as a rule, makes transactions on behalf of minor citizens. The trustee only gives consent to the ward to make transactions, except for those transactions that are listed in paragraph 2 of Art. 26 of the Civil Code of the Russian Federation. In order for the guardians (custodians) to perform these actions, in some cases, prior permission from the guardianship and guardianship authority is required (Article 37 of the Civil Code of the Russian Federation).

The powers of the guardian and trustee do not apply to transactions with the property of the ward, which, in accordance with Art. 38 of the Civil Code of the Russian Federation transferred to trust management.

Foster and foster families. A foster family is a kind of guardianship (guardianship) over a child, which is carried out under an agreement on a foster family, concluded between the guardianship and guardianship authority and foster parents, within the period specified in the agreement.

As a general rule, guardianship and guardianship obligations are performed free of charge (clause 1, article 36 of the Civil Code of the Russian Federation). The foster family performs these duties for a fee.

The foster family contract is a civil law contract.

An agreement on the creation of a foster family is a kind of agreement in favor of a third party. The contract is concluded by the guardianship and custody body, on the one hand, and the individual (persons) - on the other, and the rights under the contract (the right to receive education, care, representation) are acquired by a third person - a child left without parental care.

To the relations arising from the agreement on the foster family, in the part not regulated by the UK, the rules of civil law on the provision of services for compensation are applied insofar as this does not contradict the essence of such relations (Article 152 of the UK).

A foster family is a kind of guardianship (guardianship) over children, which, like a foster family, is paid guardianship carried out under an agreement.

Foster family agreements (on patronage, on foster care) can be concluded only in cases provided for by the laws of the constituent entities of the Russian Federation (Article 14 of the Law on Guardianship and Custody). Foster care contracts do not differ from foster family contracts in terms of relations between a foster child and an individual accepting the child into the family. The differences between these types of guardianship (guardianship) are mainly reduced to the volume and nature of state support for the family of the guardian (custodian).

The legislation provides for the possibility of temporary (until transfer to a family) placement of a child in specialized organizations for orphans or children left without parental care (Article 123 of the UK). The organization in which the child remains without parental care acts as his guardian (curator) (Article 35 of the Civil Code, Article 155.2 of the UK), and the child has the full range of rights of children under guardianship and guardianship (Article 155.3 of the UK).

The legal difference between a child's stay in a specialized organization and guardianship (guardianship) is that the organization is a legal entity, and the "ordinary" guardian (trustee) is an individual.

The choice of the form of placement of children left without parental care falls within the competence of the guardianship and guardianship authorities. Only they decide how the fate of the child should be arranged in each individual case (placement in a children's institution, boarding school, appointment of a guardian, etc.), even the court has no right to decide on the specific method of placing children who have lost parental care.

In terms of their legal consequences, the concepts of adoption and adoption are equivalent; Hereinafter the term "adoption" is used.