Article 155.1. Accommodation of children left without parental care in an organization for orphans and children left without parental care
Commentary on Article 155.1
1. Chapter 22 was introduced in the RF IC by Federal Law No. 49-FZ of April 24, 2008, adopted in connection with the Guardianship Law. In the commented chapter, for the first time, the concept of such a form of placement of children left without parental care as placement in an organization (legal entities) is given, and the main provisions related to the procedure for the stay of children under the supervision of such organizations are defined. As already noted, this form of child placement is recognized as the least favorable for the child.
Moreover, in accordance with the provisions of Art. 122 of the RF IC at the first opportunity to transfer the child to the family, his placement in the organization should be terminated. The heads of educational organizations, medical organizations, organizations providing social services, or similar organizations in which children left without parental care are located, within seven days from the day they became aware that the child can be placed in a family, are obliged to inform about this to the guardianship and trusteeship body at the location of the organization. The commission by the head of the institution in which children left without parental care are taken actions aimed at sheltering a minor from being brought up to a family, shall entail the imposition of an administrative fine in the amount of 2 thousand to 3 thousand rubles (Article 5.36 of the Administrative Code).
2. The number of specialized organizations for orphans includes:
Educational organizations;
Medical organizations;
Organizations providing social services;
Other non-profit organizations, provided that the activities for the placement of children do not contradict the goals for which they were created.
It is necessary to dispel the misconception that specialized organizations for children left without parental care can only be educational. The Family Code of the Russian Federation does not contain such a rule, and indeed cannot, since in the overwhelming majority of cases it is in the interests of a child left without parental care to visit an ordinary general educational institution. The full implementation of the educational process within the organization for children left without parental care creates a closed atmosphere in the team of children and does not contribute to their normal socialization.
In accordance with the current Resolution of the Government of the Russian Federation of November 27, 2000 N 896 (as amended on March 10, 2009), organizations providing social services and accepting children left without parental care are social rehabilitation centers for minors, social shelters for children, centers for helping children without parental care.
At the same time, the commented article allows the creation of not only state, but also non-state specialized organizations for orphans. Note that, for example, religious organizations in themselves as legal entities cannot be considered organizations for orphans, since their main goals (joint confession and dissemination of faith - Article 8 of the Federal Law of September 26, 1997 N 125-FZ " On freedom of conscience and on religious associations ") contradict the goals of the activities aimed at arranging children left without parental care. Therefore, religious organizations have the right to establish separate legal entities (private institutions - Article 120 of the Civil Code), which may be entrusted with the functions of arranging children without parental care.
The organizational and legal forms of legal entities related to organizations for children left without parental care are determined by civil legislation. These can be exclusively non-commercial legal entities.
The conditions for the stay of children in all types of organizations for children left without parental care must be determined by the relevant decree of the Government of the Russian Federation.
3. The commented article distinguishes between cases of temporary stay of children in organizations for orphans and cases of placement of children in such organizations.
Placement of a child in any organization for the purpose of receiving medical, social, educational or other services, or in order to ensure temporary residence of the child during the period when the parents, adoptive parents or guardians or guardians for valid reasons cannot fulfill their duties in relation to the child, is not a child's device in the sense of Ch. 22 IC RF. In these cases, the child's legal representatives retain all their rights. For example, a child under guardianship may be placed by the guardian in a boarding school for short-term education. This may be due to the need for the departure of the guardian or other valid reasons. In this case, the guardian does not lose his rights.
4. For the first time, the commented article clearly defined the status of a graduate of an organization for orphans. Previously, in practice, it was assumed that a minor (usually a 16-year-old) graduate orphanage falls under the guardianship of the institution of secondary vocational education in which he enters to study. However, these institutions do not and have never been classified as specialized organizations for orphans. Therefore, in clause 4 of the commented article, the legislator reminds that after the end of the child's stay in an educational organization for orphans and children left without parental care, until they reach the age of 18, the duties of the guardian or curator of this child are assigned to the guardianship and guardianship authorities. Thus, the guardianship and trusteeship body is obliged to re-start the search for a guardian for such a child (Articles 121 - 123 of the SK).
5. The activities of organizations for children left without parental care cannot be uncontrolled. Since they are entrusted with serious responsibilities to protect the life and health of children staying in them, to provide them with food, medical assistance, care, to ensure that children receive education, the guardianship and trusteeship authorities are obliged to monitor the conditions of detention, upbringing and education of children.
The procedure for such control is determined by the Rules for the implementation by the guardianship and guardianship authorities of checking the living conditions of minors wards, the observance of the rights and legal interests of minors wards by guardians or guardians, ensuring the safety of their property, as well as the fulfillment by guardians or trustees of the requirements for the exercise of their rights and the performance of their duties. The application of the aforementioned Rules to the control over the stay of minors in organizations for orphans and children left without parental care is explained by the fact that such an organization actually has the status of a guardian (curator) of a child.
Article 155.2. The activities of organizations for orphans and children left without parental care, on the upbringing, education of children, protection and representation of their rights and legitimate interests
Commentary on Article 155.2
1. The commented article defines the moment of the emergence of the authority of the organization for children left without parental care in relation to the child transferred to it. This is the moment of adoption by the guardianship and guardianship body of the act on the placement of children in the specified organization. This act must clearly and unequivocally indicate that the child is placed under the supervision of such an organization and that it is obliged, in accordance with the commented article, to fulfill the duties of maintaining, raising and educating children, as well as protecting their rights and legitimate interests.
In the presence of such an act, it is possible to distinguish between cases of temporary transfer of a child, for example, to a social shelter for the purpose of temporary residence of a minor who finds himself in a difficult life situation, and cases of placing a child in such an organization. When a child is temporarily transferred to a social shelter, the rights and obligations of legal representation do not arise in relation to the child.
2. An organization for children left without parental care is not a guardian (guardian) of children in the proper sense of the word, since in accordance with the Law on Guardianship, only natural persons (citizens) can be guardians and guardians. At the same time, the provisions of the legislation on guardianship and guardianship relating to the rights, duties and responsibilities of guardians and trustees are applied to organizations for orphans and children left without parental care, in which children are placed under supervision (see the commentary to Article 148.1 SK).
In addition, on the basis of Art. 1 of the Guardianship Act, the provisions relating to the rights, duties and responsibilities of guardians and trustees apply to organizations in which incapacitated or incompletely capable citizens are placed under supervision, including organizations for orphans and children left without parental care, unless otherwise provided by federal law or agreement.
3. The commented article for the first time at the legislative level consolidated the so-called guest mode of stay of children in families - the temporary transfer of a child to a family of citizens permanently residing in the territory of the Russian Federation. We are talking about cases of a short-term stay of a child in a family in order to ensure his upbringing and harmonious development.
Conditions for transferring a child to a family within the framework of the guest regime:
This transmission is in the best interests of the child. In order to establish whether staying in a family does not contradict the interests of the child, it is necessary first of all to find out his opinion (Article 57 of the UK);
Staying in a family is aimed at ensuring the upbringing and harmonious development of the child (introduction to the culture of family communication, acquaintance with the life of families, organization of leisure, etc.);
The child's stay in the family will not create a threat of harm to the child's physical and (or) mental health, his moral development, or any other threat to his legitimate interests;
The child's stay will be short-term. As a general rule, the transfer of a child to a family is allowed for a period of holidays, weekends or non-working holidays, etc., but for a period of not more than one month. In the presence of exceptional circumstances, the period for the temporary transfer of the child to a family of citizens may be extended with the consent of the guardianship and guardianship authority. At the same time, the continuous period of temporary stay of a child in a family cannot exceed three months;
The host family consists of citizens permanently residing in the territory of the Russian Federation.
The basis for the child's stay in the family is the order of the organization's administration for children left without parental care. In accordance with clause 6 of the commented article, the administration has the right to contact the guardianship and trusteeship body, which maintains a databank of candidates for guardians (trustees) with a request to provide information about citizens who want to take a child into the family temporarily. Thus, the guest regime can be a preliminary step for subsequent adoption, custody or guardianship. At this stage, the child's acquaintance with the host family can develop into a longer relationship.
Citizens who accept a child as a guest of his stay do not become legal representatives of the child and do not acquire any other rights of a guardian (custodian). They are only charged with the responsibility to ensure the safety of the child. These citizens are prohibited from taking the child outside Russian Federation.
The procedure and conditions for the temporary transfer of a child to a family of citizens permanently residing in the territory of the Russian Federation, as well as the requirements for such citizens, are determined by the Decree of the Government of the Russian Federation of May 19, 2009 N 432 "On the temporary transfer of children in organizations for orphans and children. left without parental care, to families of citizens permanently residing in the territory of the Russian Federation. " This by-law imposed such stringent requirements on citizens wishing to take a child for a short time that the guest regime of children staying in families was under threat.
In accordance with the Rules for the temporary transfer of children in organizations for orphans and children left without parental care to families of citizens permanently residing in the territory of the Russian Federation, citizens, having expressed a desire to take a child for one or two days, must first obtain an opinion from the body guardianship and trusteeship at the place of residence of a citizen on the possibility of temporary transfer of the child (children) to the family of a citizen or an opinion on the possibility of a citizen to be an adoptive parent, guardian or guardian. For this purpose, the same documents must be submitted to the guardianship and guardianship authority as in the case of a child being adopted into a family for upbringing. The guardianship and trusteeship body, having received the documents and the application, within 15 days checks the documents submitted with the application, examines the living conditions of the citizen and his family "in order to assess the living conditions of the citizen, the relations between the family members of the citizen" and draws up an opinion ... At the same time, the guardianship and trusteeship body has the right to request additional documents from the citizen in writing. Only after receiving positive test results, including data from a medical examination of a citizen and his family, the organization where the child is located will be able to transfer the child on weekends (holidays). However, the named organization has the right to refuse the applicant. The decision to temporarily transfer the child (children) to the family of a citizen or to refuse such a transfer is made by the head of the organization for orphans and children left without parental care, within 15 days from the date the citizen submits documents.
Article 155.3. The rights of children left without parental care and staying in organizations for orphans and children left without parental care
Training manual for professional development of employees of the guardianship and guardianship authorities
To the reader
The author deliberately did not use in the title the notorious word "status" in relation to a child left without parental care. The use of this “term”, which is in no way and nowhere defined in any normative act, only confuses specialists in the field of child protection and makes them ask each time: what did you mean when you said that this child “has no status”?
I propose to agree right away: every child without parental care has a "status". This is what is called "status" - a child left without parental care, that is, in other words, a child can either be left without parental care (and this is what this benefit is about) or has such care from the parents (parent) or persons their substitute (adoptive parents).
When teaching using this manual, students are advised to have the text of the Family Code of the Russian Federation with them in class.
Where the babies come from
Children are left without parental care for a variety of life circumstances, many of them are directly indicated in the law, some are “hiding” in the formula “as well as in other cases of loss of parental care”.
Changes to the Family Code in connection with the adoption of the Federal Law "On guardianship and guardianship" added to this list also cases when parents, by their actions or inaction, create conditions that pose a threat to the life or health of children, or hinder their normal upbringing and development. In such situations, the child was previously taken away from the family, but now this is spelled out in the law as a separate norm.
So, children are left without parental care in the following cases.
· parents (single parent) died;
· child's parents unknown (foundlings, foundlings),
· parents are deprived of parental rights;
· parents are limited in parental rights;
· parents were declared legally incompetent;
· parents are so sick that they cannot provide parental care;
· parents are absent for a long time;
o including, parents are recognized (by the court) missing;
· parents shy away from raising children;
· parents shy away from protecting the rights and interests of children;
oincluding when they refuse to take their children from any institution (refuseniks);
oor when parents do not take their children out of institutions without formally giving it up;
oor the single mother of the child, who left him in full state care, does not maintain contacts (does not take part in his upbringing) with the child;
· parents by action create a threat to the life and health of the child;
· parents by inaction contribute to the creation of a threat to the life or health of the child;
· parents hinder the normal upbringing or development of children;
· all other cases of absence of parental care:
oincluding the imprisonment of parents or the imposition of a sentence of imprisonment or restraint of liberty by a court judgment.
There are also various combinations of reasons why the child was left without parental care. For example, a mother is deprived of parental rights, a father is in prison. Or: the father died, the mother was hospitalized.
It should be borne in mind that the legislation does not establish an exhaustive list of cases when a child will be considered left without parental care. There is only one sign that a child is left without parental care - the absence of such care. For any reason, including a valid one. For the recognition of a child left without parental care, the reason for the loss of parental care does not matter.
Absolutely all children left without parental care, with the exception of those children who are in the care (actually are) of their relatives, must find protection from the guardianship and guardianship authorities, which must immediately take over the functions of legal representation of the child, and take measures to his device.
It is important to note that even in the case when a minor is "under the supervision" of relatives (but not parents), the child will still be considered left without parental care, and the guardianship and trusteeship body must still protect the rights and interests of this child, with the exception of the obligation to immediately provide such protection prior to the placement of the child (that is, for example, to immediately ensure safe upbringing and upbringing - that is, to transfer the child to an orphanage, another institution). The question of the child's life arrangement still remains open, and responsibility for such a arrangement is not removed from the guardianship authority.
It is important to emphasize that there can be no "division of responsibility" or "division of rights and responsibilities" between the institution and, for example, foster carers. Legislation does not allow for the "delimitation" of the rights and obligations of legal representation of the ward between different subjects. For example, parents have equal rights and responsibilities in matters of representation of minors, and must act in solidarity. In this case, the law does not allow any "delimitation". Even if the spouses have agreed that one of them is "responsible" for the child's education, and the other, say, for health, this "separation" is not legally significant. Parents remain equally responsible for all aspects of the child's life and remain jointly his legal representatives in court, in civil legal relations.
Moreover, it is unacceptable to “share responsibility” between subjects of family legal relations that are different in nature. An institution that transfers a child to “foster care” has no right either to delegate its powers in relation to the child, or to absolve itself of responsibility. The participation of the guardianship and trusteeship body in this process does not change the situation in any way.
In addition, the essence of the relationship between the institution dealing with the transfer of children to foster care and foster care is labor relations. In this case, the legislator does not allow any delegation of responsibility from the employing organization to the employee. Not the driver, but the motor depot is responsible for the accident, not the seller at the counter, but the store - for the low-quality goods, not the installer, but the organization in which he works, will be responsible for the incorrect wiring.
The institution has no right to delegate the functions and powers of the "state guardian" to anyone else. It can only transfer them in full to another legal representative by decision of the guardianship and guardianship authority, which happens when the child is placed.
In this case, if the powers of legal representation are transferred from the institution to the citizen, "patronage" will be a form of device. If the legal representative remains the same entity (orphanage, for example), the child will not be placed.
It is important to note that the law allows a child to be placed in an organization for children left without parental care only if it is impossible to place him in a family. This means that a child who is in an organization for children left without parental care at any time can and should be transferred to the family as soon as such an opportunity arises (under guardianship, guardianship, for adoption).
Legal representation
“Legal representation” as a term is not defined by the legislation, however, analyzing the cases of its use in various regulatory acts, it can be concluded that “legal representation” should be understood as activities aimed at protecting, establishing, implementing, realizing the rights and interests of a person who is incapacitated , including those incapacitated due to their age - a child - carried out by this or that person (legal representative) by virtue of the law.
Signs of the legal representation of a child will be that the legal representative has the rights, in a broad sense, to determine the fate of the child: how to educate him, what to teach, how to take care of his health, how to organize his education, how to equip the child's life, etc. - all these issues in the aggregate are activities for the legal representation of a child left without parental care.
Note that an important sign of the legal representation of a child is not the direct fulfillment of duties, for example, for upbringing or education, but making a decision about it. For example, the trustee can determine that the further education of a 15-year-old guy will take place at the Suvorov School. Or an orphanage sends a child to study at an art school; parents decide that grandmother will take their child to her house several days a week, etc. In this case, the transfer of legal representation does not take place.
Summing up, let us explain once again that the device of a child will not be the physical movement of the child from one place to another (even from an institution to a family), but the transfer of the rights and obligations of legal representation from one subject to another. At the same time, the "separation" of powers or responsibility for the legal representation of a minor is unacceptable.
What is a family device
The Family Code of the Russian Federation provides for the following types of placement of children left without parental care:(adoption, guardianship or guardianship, in a foster family, or in cases provided for by the laws of the constituent entities of the Russian Federation, in a foster familyfamily), and in the absence of such an opportunity - in an organization for children left without parental care.
Depending on which particular subject the rights and obligations of the legal representation of the child are transferred to, there are:
· family arrangement and
· institutional arrangement, or, simply, arrangement in an institution, an organization intended for the permanent residence of children.
Adoption is the transfer of all, without exception, the rights and obligations of legal representation of a child that belonged to his parents, adoptive parents or adoptive parent. With this form of the device, usually, there are no problems, everyone understands it correctly.
It is more difficult with custody or guardianship.
Guardianship (guardianship) as a form of family arrangement
The adopted federal law "On guardianship and guardianship" made an important change in the structure of family forms of organization. From September 1, 2008 (from the date of entry into force of the law), in fact, all other family forms of child placement will be reduced to one or another option of guardianship or trusteeship.
Thus, the foster family, known in domestic legislation since the mid-90s, as something separate, special, will be a form of guardianship (guardianship) under an agreement on the exercise of guardianship (guardianship).
In turn, the subjects of the federation must bring their normative acts concerning patronage in line with the newly adopted law. Article 14 of the aforementioned law directly relates foster care (foster care, foster family) to the types of establishing guardianship or guardianship by agreement.
At the same time, guardianship defined by the legislator as “a form of arrangement of minor citizens ... in which citizens (guardians) appointed by the guardianship and guardianship authority are the legal representatives of the wards and perform all legally significant actions on their behalf and in their interests” (part 1 of Article 2 of the aforementioned law).
Legislation does not allow for the “separation of powers” for guardianship and guardianship. In addition, with the adoption of this law, the subjects of the contract on patronage (foster carers, foster parents) must be subject to the same requirements as for guardians (trustees), and their powers to legally represent children arise from the moment of the issuance of the act on the establishment of guardianship or guardianship.
Similarly, with a foster family: the powers of foster parents arise, like a guardian, from the moment the act of the guardianship and trusteeship body is adopted on the appointment of a guardian or trustee, and only by virtue of this act.
Transferring a child to a family is not always a family arrangement
The family form of the device is named because the functions of legal representation are transferred to the family, citizens. And in this sense, it is necessary to distinguish cases when a child, although he is transferred physically to the family, but at the same time legally remains a pupil of the institution.
Such cases are provided for by law. A child in an institution can be transferred temporarily to a family of citizensliving in the territory of the Russian Federation. Such a transfer is possible to ensure the harmonious development of the child, cannot exceed one month in time, and is carried out by order of the head of the institution.
If there are any exceptional circumstances, the period of temporary stay of the child in the family can be extended until three months, but only with the consent of the guardianship and guardianship authority.
The legislator directly emphasizes that such a transfer of a child is not a form of placing children. Both the rights and obligations of the child's legal representative remain with the organization under whose supervision the child is placed.
Thus, the family form of organization is the transfer of the rights and obligations of legal representation of a minor to the family (or to an individual citizen). The forms of family placement are adoption and various types of guardianship or guardianship (in fact, guardianship or guardianship, guardianship or guardianship under a different form of agreement, including foster family or foster care). An important feature of the family form of arrangement is the appointment of a legal representative - an individual - to a child who has been left without parental care by an act of a state body (a court decision, an act of a guardianship and trusteeship body), in the manner prescribed by law.
Placement in an institution... Which?
It should be noted that the placement of a child in an institution by itself will not automatically constitute a device for him. So, it will not be a device for a child and will not entail the transfer of rights and responsibilities for legal representation, placement of the child, selected by the guardianship and guardianship authority from the parents, to an orphanage, to a temporary stay center for minors. Temporary placement by a single mother of her child in an orphanage will not be a device for a child (the key word in this case is "temporary"). The rights and obligations of the legal representative are retained by the entity with whom they were originally.
The rights and obligations of the organization where the child is placed arise only from the moment and by virtue of the act of the guardianship and guardianship authority on the placement of the child in the specified organization.
The legislator for the first time more or less clearly outlined and expanded the range of organizations in which a child can be placed under supervision. First, these are educational organizations, then, medical, organizations providing social services, as well as non-profit organizations, if the specified activity does not contradict the goals for which they were created.
Requirements for such organizations will be established by the Government of the Russian Federation. Until this moment, the legislator allowed other boarding organizations for children left without parental care to continue to operate, existing at the present time.
The choice of an organization for the placement of a child is made by the guardianship and guardianship body, and no one else.
The practice of "vouchers" issued by the educational authorities does not cancel this right. A child in need of medical care (primarily psychiatric) should be placed in a medical hospital, a child in dire need of social rehabilitation in special conditions - in the organization of social protection, in other cases - in an educational organization.
The choice of a non-governmental organization for the placement of a child should be carried out by the guardianship and guardianship authority in strict accordance with the interests of the child, with the obligatory consideration not only of the specialization of such an organization, but also of the fact by whom it was established, in whose interests it acts.
Since the Constitution of the Russian Federation establishes the secular nature of the state, as well as freedom of religion, the transfer of a child who did not profess any religion (or professed a different religion) to a religious organization (an organization created at a church, mosque, synagogue) may raise reasonable questions from the regulatory authorities and prosecutors. Controversial, and hardly permissible, would be the transfer of an infant to a religious organization.
The guardianship and trusteeship body, when determining the fate of a child, should also take into account who finances this non-profit organization, where the child is placed, what educational programs this organization implements, how transparent the goals of its activities are, whether this organization has experience in supervising children left without parental care, etc.
The only argument for choosing an organization where the child is transferred is the interests of the child. Nothing, when choosing the type of organization where the child is sent, is more important than taking care of the future of the minor.
Choosing the shape of the device: limitations
The form and type of placement of the child are determined by the guardianship and guardianship authority in order to ensure the priority of family forms of placement of the child.
All forms of device can be applied to any child left without parental care, with the exception of adoption, which is not possible in all cases.
In particular, it is possible to adopt a child in cases when:
· parents are unknown (the child is thrown, found);
· parents are dead;
· the parents are recognized by the court as missing or dead;
· the parents were declared legally incompetent by the court;
· parents have been deprived of parental rights more than 6 months before the adoption of the decision by the court;
· for reasons recognized by the court as disrespectful, for more than 6 months the parents do not live with the child and evade his upbringing and maintenance;
· the parents gave their consent to the adoption (for parents who have not reached the age of 16 at the date of signing the consent, the consent of their legal representatives is also required).
Children whose parental care has been lost for another reason are not eligible for adoption, although they remain children left without parental care and all other forms of placing a child remain available to them: under guardianship (guardianship), into a foster or foster family, and only if if a family arrangement is not possible - to an organization for children left without parental care.
Perhaps the only "absolute" limitation in choosing the form of the device is the opinion of the child himself. For example, adoption is unacceptable if a child who has reached the age of 10 objects to it. At the same time, the guardianship authorities must carefully find out the motivation of the child, for which to involve teachers and psychologists when clarifying the opinion of the child.
It should also be borne in mind that the opinion of a child under 10 years old is also subject to clarification, and, if possible, taken into account when deciding on the choice of the form of his device.
Child's device: possibilities
Any child left without parental care for any reason should, if possible, be placed in a family as soon as possible.
Unfortunately, there is a widespread belief that, nevertheless, in some cases, a child left without parental care cannot be transferred to a family. In such cases, they say that "the status is not determined" (in the sense that the documents for the child are not ready). The presence or absence of documents, or a hitch in their collection should not limit the child's right to live and be raised in a family.
Even a foundling who does not have any documents other than a birth certificate can already be transferred to the family. Strictly speaking, even before the issuance of a birth certificate to such a child, he may already be transferred, for example, to pre-foster care, to a foster family. A child has the right to live and be raised in a family by the very fact of his birth, it does not matter whether he has this or that document or not.
Another thing is that in this case, it is difficult to find a substitute family. But if there are citizens who are ready to take the child right now, despite the fact that he has no status, then it is unacceptable to restrict the child's rights to the family.
In this case, it is necessary to explain to the substitute family all possible difficulties and options for the development of the situation so that citizens, accepting a child into a family, understand, for example, that his only parent is in prison and can be released, including ahead of schedule and apply for the upbringing of this child. ...
It should also explain to citizens the possibility of the appearance of the child's relatives (grandmothers, grandfathers, brothers, sisters, including those not known before) who can claim to communicate with him.
It should be borne in mind that a child whose parents are legally absent (found, foundling, as well as abandoned by the mother, if her identity is not established) can be adopted or transferred to any form of device at any time (including immediately after identification).
The child's relatives and their upbringing rights
The opinion is erroneous that when relatives claiming to raise a child appear, the child who has already been transferred to the family of "outside citizens" is subject to transfer to relatives. The law does not provide for such a basis for termination of guardianship as “the appearance of relatives”. In each specific case, the issue should be resolved only based on the interests of the child and only in such a way that agreement is reached between the guardian and the relatives applying for custody, as well as the opinion of the child is taken into account (from the age of 10 - without fail). At the same time, relatives claiming custody (guardianship) of a minor must meet the general requirements for guardians (trustees) established by law. Disputes on these issues are resolved in judicial procedure at the request of the person concerned (including a child who has reached the age of 14).
Arrangement of children of foreigners
If the mother who left the child in the maternity hospital or hospital did not present documents, then this child will be a citizen of Russia by birth and have no legal parents.
If the mother who wrote the consent to the adoption of her child has the citizenship of a foreign state, such a child is still subject to placement in a family in accordance with the laws of the Russian Federation.
In the event that the mother, who presented the passport of a foreign state, left the child in the hospital without signing consent for adoption, the fate of such a child is determined by the competent authorities of the state of which his mother is a citizen. To do this, the institution where the child is left, or the guardianship and guardianship authority must inform the embassy (consulate) of the country of which the mother of the child is a citizen and then act on the instructions of the embassy (consulate).
If the mother is a citizen of Belarus, Uzbekistan, Kazakhstan, Tajikistan, Armenia, Ukraine, Kyrgyzstan, Moldova, Azerbaijan, Georgia or Turkmenistan, then the guardianship and trusteeship body has the right to establish guardianship in relation to the child, but notify the embassy (consulate) of these countries about the establishment of such guardianship ...
Adoption of a foreign citizen is allowed with the consent of the competent authorities of the country of which the adopted child is a citizen.
Children whose parents have "disappeared"
A fairly common case is when a single mother who left her child in a child care facility for full government support, does not appear for a long time, does not communicate with the child, does not show concern for him. The guardianship and trusteeship body should control the fate of such children and, if the mother did not appear for a long time (by analogy, a period of 6 months can be taken) should find out for what reasons the mother does not take part in the fate of the child. If it was not possible to find the mother (it was not possible to find her at the addresses and phone numbers indicated by her), or it was found that she avoids participating in the fate of the child for obviously disrespectful reasons, such a child should be registered as a newly identified child left without parental care.
In this case, the organization in which the child is located must notify the guardianship authority in writing if his parents have not communicated with the child for a long time. To collect such information, it is recommended to keep not only a general log of visits, but with the pupil's personal file, store data on the receipt of letters, calls, parcels from parents, and their visits to the child.
As soon as such a child is identified as being left without parental care, he can be placed in a family (including adopted). The absence of parental care for 6 months is in itself a reason to raise the issue of adopting a child: it can already be transferred for adoption. At the same time, the assessment of the reasons why parents avoided raising a child is the prerogative of the court. All available evidence that the given reasons were not valid must be presented to the court when making an adoption. There is no need to preliminarily deprive such parents of parental rights.
A common mistake of the guardianship and guardianship authorities is the deprivation of parental rights of the child's parents even if he can already be adopted without parental consent. An attempt to deprive parental rights in this case only leads to a delay in the adoption of the child, since his adoption becomes possible only after 6 months from the date of deprivation of parental rights.
If the child's father is entered in the birth certificate from the mother's words (there is a corresponding certificate from the registry office), even if the data of such a “named father” (last name, first name, patronymic) coincide with the data of a real person, the search for him, as well as involvement in solving collection issues documents for the child, communication with relatives, etc. should not be produced. Such a child legally does not have a father, thus, in case of loss of care from the mother (single parent), the child is subject to placement as a child left without parental care. Including his transfer for adoption.
Deprivation of parental rights"Missing" parents
Only in the event that the child is transferred to a form of device other than adoption, the guardianship and trusteeship authority must file a claim for deprivation of parental rights of a parent who avoids raising a child.
It should be borne in mind that the long absence of parents due to reasons not related to their will (detention, imprisonment, long-term, including compulsory, treatment, etc.) in any case, will not entail the deprivation of their parents right.
The guardianship and trusteeship body is not entitled to shift the obligation to deprive the parental rights onto the shoulders of a guardian or trustee. It is necessary to deprive the parental rights of negligent parents in the interests of the child: this not only allows the child to be adopted in the future according to a simpler procedure, but also protects the child from further possible claims of biological parents.
If the child ended up in a child care institution not at the request of a single mother, but for any other reason, the guardianship and guardianship authority, together with the organization where the minor is located, must find his parents and, in writing, offer them to take the child out of the institution. Such an "offer" can be sent by mail with acknowledgment of receipt, but it is better if such an offer is delivered directly to the parent (s) against receipt.
It should be noted that when returning a child, parents need to check whether they have created conditions for raising and maintaining a child, draw up an act about this. The return of the child is possible only if parental care is restored, that is, including the creation by the parents of conditions for the child's life.
In case of refusal to pick up the child without good reason, it is necessary to resolve the issue of deprivation of parental rights and recovery of alimony.
Respectful in this case will be only those reasons why the child's stay in the family, at home at the moment is impossible. In this case, it is possible to place the child temporarily in an institution on the basis of a parent's application with substantiation of the reasons and an indication of the period for which the child is placed in an institution. Such reasons may be, for example, a recent fire or an event that made the family's house unusable, death or an extremely serious health condition. close relative and the inability to provide at the same time both caring for a child and caring for such a relative, a parent's illness associated with a significant limitation of the parents' capabilities, etc. Obviously, these reasons cannot be recognized as valid for a long time. Are not valid reasons, for example, the loss of a job by the parents (especially if this continues for many months or years), or, say, the sale by the parents of their only home - these facts reflect the guilty behavior of the parents and cannot be recognized as valid reasons. Such a child is identified as being left without parental care and his placement is carried out in accordance with the general procedure.
When applying to the court with claims for deprivation of parental rights, the issue of collecting alimony is simultaneously resolved. In this case, the search for parents is carried out at the request of the court by the internal affairs bodies free of charge by virtue of the law.
Priority adoption does not limit the child's custody rights
Despite the priority of adoption as a form of placing a child left without parental care, it is unacceptable to refuse to transfer the child into custody for some "general considerations". For example, unfortunately, there is a widespread case when children under the age of 1.5-2 years are denied custody, citing the fact that "these children are going for adoption." If in the guardianship and trusteeship authority (or in the regional databank) there is information that there are candidates applying for custody and adoption of this child, then the child is transferred for adoption. However, if there are no potential adoptive parents at the time of the application of the candidate for guardianship with an application for the transfer of this child into custody, the child should be placed in custody. Refusal of such transfer to the family (and leaving the child “to wait for the adoptive parents” in the child's home, orphanage, hospital) can be appealed in court because legislation allows the institutional arrangement of a child only if it is impossible to transfer him to a family for upbringing.
Thus, any child left without parental care, including those who were placed in institutions at the request of the parents, can be transferred to any form of placement, including family (guardianship or guardianship, foster family, etc.). The guardianship and trusteeship body must, first of all, ensure the rights and interests of children (transfer them to families), and only secondarily check whether any interests of their biological parents are violated (search for parents, lawsuits for deprivation of parental rights, etc.) In addition, often it is guardianship that becomes the first step to adoption, this is primarily due to such factors as a faster and easier procedure for transferring a child to a family, for example, not all spouses have the opportunity to prepare documents for adoption at the same time. And the terms of validity of the medical certificate are very limited (3 months), or this is due to the fact that the adoptive parents are from another region, and it is difficult for them to come many times ...
Who prepares a child for a family arrangement
According to the current legislation, all activities for the preparation of documents for a child for adoption or guardianship lies with the guardianship and guardianship authorities. It is forbidden to demand from potential adoptive parents or guardians, trustees any documents related to the adopted or potential ward. Everything, absolutely all documents for the child must be prepared by the guardianship and guardianship authority (together with the organization where the child is located).
It is unacceptable (including from the point of view of maintaining the secrecy of adoption) to "instruct" adoptive parents to search for the "missing" parents of the child, to demand that they receive any "refusals" or "consent". A potential adoptive parent has no right to collect medical documents for a child, issue a birth certificate, etc. any documents related to a child that has not yet been adopted by him, since until they are appointed as legal representatives of the child, they are foreign citizens to him and do not have any powers, and this can be regarded as access to data constituting information about the private life of another citizen. The same can be said for candidates for guardianship or trusteeship.
"Early" transfer of a child to a family upon adoption
If it is obvious that the court's decision on adoption will not be challenged (there are no relatives, or they all did not object to the adoption, the prosecutor's office supported the adoption), then the institution in which the child is located may issue him “ahead of schedule” in order to temporarily transfer the child to the family.
All documents for registration of a new birth certificate, adoption certificates can be issued not earlier than the entry into force of the court decision, but the child (especially when it comes to a baby) can be transferred to the family immediately after the court decision.
In this case, the same documents are drawn up as in the temporary transfer of the child to the family. For this period, prospective adoptive parents do not have the rights of legal representation in relation to the child.
In the event that the immediate transfer of the rights of legal representation in the interests of the child is vitally necessary (as a rule, when immediate treatment is needed), the issue of applying the court decision on adoption to immediate execution should be raised by the adoptive parents in court, and supported by the guardianship authorities. In this case, it is necessary to attach medical documents that the child really needs immediate treatment.
The Supreme Court of the Russian Federation indicated to the lower courts that the appeal of a court decision on adoption to immediate execution is possible only in the interests of the child in the case when the delay in the entry into force of the decision will lead to negative consequences for the child.
In other cases, the court decision comes into legal force after 10 days from the date of the decision by the court. If the last day of the term falls on a non-working day, then the last day of the term is the next working day. And only after the expiration of this period for appeal, the court decision comes into legal force.
Family device table
This table describes the possibility of choosing one or another form of family arrangement for a child left without parental care, depending on the reason why the child was left without parental care, describes the possibilities of documenting such reasons. The necessary legal actions in relation to the child are also reflected.
It should be noted that if the possibility of placing a child under guardianship is indicated, then all forms of guardianship are applicable, including guardianship itself, guardianship under an agreement on a foster or foster family, as well as guardianship.
A child can be transferred to an organization for children left without parental care only if it is impossible to transfer him to a family.
|
Reason for loss of parental care |
Registration of reasons for loss of parental care |
Forms of a possible device (U-adoption, O - custody) |
Actions required after placing a child in a family |
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|
Parents died |
Death certificate |
adoption, guardianship |
||
|
Parents are deprived of parental rights |
A court-certified copy of the court decision on deprivation of parental rights |
custody - adoption, after 6 months |
||
|
Parents have limited parental rights due to mental illness |
A claim to declare a parent incapacitated |
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|
Parents are limited in parental rights due to parental behavior that is dangerous for the child |
A court-certified copy of the court decision on the restriction of parental rights |
|||
|
Parents declared legally incompetent by the court |
A court-certified copy of the court decision on declaring incompetent |
Oh, oh |
||
|
Parents are sick and unable to provide parental care |
A certificate from a medical institution where the parent is located about the impossibility of taking care of children for a certain time, or an act of examination of living conditions from which follows the inability of the parent for health reasons to exercise parental rights and obligations |
If the recovery of the parents is revealed, an offer to take the child out of the institution and restore parental care. If you refuse to do this - clause 9. In the absence of parents in the place indicated by them as a place of residence or stay - clause 7 |
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|
Parents are absent for a long time |
A statement by the parents, relatives of the child, other persons, together with an act of examination of the living conditions of the child, which reveals the long absence of the parents from the place of residence of the child |
Going to court for the recovery of alimony (search for parents) After 6 months - an appeal to the court for deprivation of parental rights |
||
|
Parents declared missing by the court |
A court-certified copy of the court decision on recognizing the parents as missing |
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Parents shy away from parenting |
Application of the person actually raising children together with the act of the guardianship and guardianship authority, revealing the absence of parental care of the child |
A claim for deprivation of parental rights |
||
|
Parents shy away from protecting the rights and interests of children |
Established by an act of the guardianship and trusteeship body, the fact of the absence of a decision by the parents of the child's fate (the child was not "taken" from summer camp, a child temporarily left in the care of another person was not taken by the parents within the prescribed period, the child obliged to attend school was not assigned there by the parents, etc.) |
A claim for deprivation of parental rights |
||
|
The child's parents are unknown (the parents had no documents) |
The act of abandonment (indicating that the identity of the mother of the child has not been established), the act of dropping, a birth certificate with a "dash" in the parent column |
Oh, oh |
||
|
Parents refuse to take the child out of the institution |
Parents' statement on the refusal to take the child from the institution (the parent's signature is certified by the head of the institution on the basis of an identity document), or a message from the institution about an abandoned child (containing information about the parents established from identity documents) and an act of the guardianship authority on the identification of a child left without parental care, or an act of abandonment of the child (parents are indicated on the basis of identity documents) |
Oh, u - in 6 months |
A claim for deprivation of parental rights |
|
|
A single mother who has left her child on full state support on an application does not maintain contact with the child for more than 6 months |
A message from the organization in which the child is located about the absence of contacts between the mother and the child, as well as an act on the identification of the child left without parental care |
Oh, u - in 6 months |
The claim for the recovery of alimony (search for the mother) A claim for deprivation of parental rights |
|
|
The child's parents are absent |
Throwing act, birth certificate with "dashes" instead of the parents' data |
Oh, oh |
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|
The child's parents are in prison or are in custody |
A court decision (court order) on deprivation of liberty (detention) and (or) an act of the guardianship and trusteeship body on the examination of living conditions in which the absence of parents was revealed due to their conviction (detention), or a message from the internal affairs bodies about the detention of parents |
A claim for deprivation of parental rights, if there are grounds for this before detention |
Children without parental care
Children left without parental care are children who have lost their parents in the event of their death, deprivation of their parental rights, restriction of their parental rights, recognition of parents as incapacitated, parental illness, prolonged absence of parents, parents' avoidance of raising children or protecting their rights, and interests, including when parents refuse to take their children from educational organizations, medical organizations, organizations providing social services, or similar organizations, when the actions or inaction of parents create conditions that pose a threat to the life or health of children or hinder their normal upbringing and development, as well as in other cases of lack of parental care.
In this case, the protection of the rights and interests of children left without parental care is assigned to the guardianship and guardianship authorities.
The guardianship and trusteeship authorities identify children left without parental care, keep records of such children and, based on the specific circumstances of the loss of parental care, choose the forms of placing children left without care, and also exercise subsequent control over the conditions of their maintenance, upbringing and education.
Arrangement of children without parental care
Section 123 Family Code RF represents the following family forms of the device:
- Adoption (adoption).
- Guardianship (guardianship).
- Foster or foster family.
In the absence of the above possibilities, children can be transferred to organizations intended for orphans and children left without parental care. In accordance with Art. 1 of the Federal Law "On additional guarantees for social support of orphans and children left without parental care", such organizations are educational institutions in which orphans are supported (trained and brought up). In addition, these organizations are represented by orphanages, boarding schools for disabled children, social rehabilitation centers, social shelters, as well as health care institutions (in particular, children's homes).
It should be noted that Article 155 of the Family Code of the Russian Federation implies the expansion of the list of the above institutions. In particular, the list of organizations for orphans and children left without parental care also includes non-profit organizations. At the same time, the condition must be met without fail, namely, the supervision of children is not in conflict with the goals of the activities of these organizations.
The child can be transferred to an organization for orphans and children left without parental care, for permanent or temporary stay. If a child is placed in a specialized educational, medical or similar institution on a permanent basis, then the responsibilities related to the maintenance, upbringing, education of the child, and the protection of his rights and legal interests are fully assigned to these institutions.
When a child is temporarily placed in one of the listed institutions, the parents (adoptive parents, guardians or trustees) retain all rights and obligations. The stay can be temporary in the event that there are good reasons why the parents (adoptive parents, guardians or guardians) do not fulfill their duties in relation to the child. For example, in connection with a serious illness, a long business trip, etc.
Regardless of the nature of the device (permanent or temporary), the child is transferred to a specialized institution by issuing a decision (act) of the guardianship and guardianship authority.
The guardianship and trusteeship bodies that are directly involved in the fate of the child perform the following legislative functions:
- Provide the placement of a child in an organization for orphans and children left without parental care.
- Control over the activities of these organizations - first of all, the emphasis is on assessing the conditions of detention, upbringing, education and treatment of children.
The guardianship and trusteeship authorities perform the duties of a guardian or curator until the moment the child turns 18 years old.
Help for children left without parental care
If you want to help children left without parental care, it is better to contact directly the institutions where they are staying. On the website Children's Houses you can find the addresses of such institutions throughout Russia.
There are also regional sites where you can find out the addresses and phone numbers of the Funds for helping children left without parental care, or orphanages. For example, Children's homes in the Kaliningrad region or Children of Mordovia.
Data bank of children without parental care
Forms of placement of children without care
Adoption (adoption) is the adoption of a child into a family on the basis of blood rights with all the rights and obligations that follow from this. It is the priority form of the device. For parents, the highest degree of responsibility for the fate of the child and his full development. Not every child deprived of parental care can be adopted.
Guardianship and guardianship is the adoption of a child into a family as a foster child. Guardianship is established over children under the age of 14, and guardianship is established over children from 14 to 18 years old. The guardian has almost all the rights of a parent in matters of upbringing, education, child support, and responsibility for the child. However, the guardianship authorities are obliged to regularly monitor the conditions of detention, upbringing and education of the child. Guardianship can be appointed for a fixed term or without a term. Guardianship is often used as an intermediate form of adoption.
Foster family. A foster family is considered to be guardianship or guardianship of a child or children, which is carried out under an agreement on a foster family, concluded between the guardianship and guardianship authority and the foster parents or foster parent, for the period specified in this agreement. Usually, children are transferred to a foster family who cannot be passed on for adoption or guardianship, for example, to bring up 2-3 or more children of brothers and sisters in one family. Such a family replaces the child's stay in an orphanage or shelter with home education and is created on the basis of an agreement between the adoptive parent (s) and the guardianship and guardianship authorities.
Social guarantees, protection and rights of children left without parental care
State support for children left without parental care consists of several points. This is support in the following areas:
- The right to education.
- The right to health care.
- The right to property and living quarters.
- Right to work.
- Judicial protection of rights.
Right to education
- Orphans and children left without parental care, persons from among orphans and children left without parental care, have the right to study at the preparatory departments of educational institutions of higher education at the expense of the corresponding budget of the budgetary system of the Russian Federation.
- Orphans and children left without parental care, persons from among orphans and children left without parental care, have the right to receive a second secondary vocational education under the training program for skilled workers without charging a fee.
- Orphans and children left without parental care, persons from among orphans and children left without parental care, enrolled in educational programs of secondary vocational education or higher education in full-time education at the expense of the corresponding budgets of the budgetary system of the Russian Federation, and also, students who have lost both parents or a single parent during the period of study are enrolled in full state support until the completion of their studies.
- During the period of study on educational programs of secondary vocational education or higher education in full-time education at the expense of the corresponding budgets of the budget system of the Russian Federation for persons from among orphans and children left without parental care, for students who have lost both or only parent, if they reach the age of 23 years, the right to full state support and additional guarantees for social support in obtaining secondary vocational education or higher education is retained until the end of training in these educational programs.
- Orphans and children left without parental care, persons from among orphans and children left without parental care, studying at the expense of the corresponding budget of the budget system of the Russian Federation for basic educational programs, along with full state support, are paid a scholarship, an annual allowance for the purchase of educational literature and writing materials in the amount of a three-month scholarship, as well as one hundred percent wages accrued during the period of industrial training and industrial practice.
- Graduates of organizations performing educational activities, - orphans and children left without parental care, persons from among orphans and children left without parental care, who come during vacation time, weekends and holidays in these organizations, by the decision of their governing bodies, they can be credited for free food and accommodation for the period of their stay in them.
- Graduates of organizations carrying out educational activities who studied in basic educational programs at the expense of the federal budget - orphans and children left without parental care, persons from among orphans and children left without parental care, with the exception of persons continuing their education for basic educational programs on a full-time basis at the expense of the federal budget, are provided once at the expense of the organizations in which they were trained or kept, brought up, with clothes, shoes, soft equipment and equipment according to the standards approved by the Government of the Russian Federation, as well as a one-time cash allowance in the amount of not less than five hundred rubles.
- Graduates of organizations carrying out educational activities who studied in basic educational programs at the expense of the budgets of the constituent entities of the Russian Federation or local budgets - orphans and children left without parental care, persons from among orphans and children left without parental care, for with the exception of persons continuing their studies in basic educational programs on a full-time basis at the expense of the budgets of the constituent entities of the Russian Federation or local budgets, they are provided with clothing, footwear, soft inventory, equipment and a one-time cash allowance in the manner prescribed by the laws of the constituent entities of the Russian Federation or regulatory legal acts of the executive the authorities of the constituent entities of the Russian Federation.
- If students - orphans and children left without parental care, persons from among orphans and children left without parental care are provided with academic leave for medical reasons, they are fully supported by the state for the entire period, they are paid a scholarship.
- Orphans and children left without parental care, persons from among orphans and children left without parental care, studying at the expense of the federal budget for basic educational programs are provided free travel on urban, suburban, rural areas by intradistrict transport (except for taxis), as well as free travel once a year to the place of residence and back to the place of study.
The right to health care
- Orphans and children left without parental care, as well as persons from among orphans and children left without parental care, are provided with free health care in medical organizations of the state healthcare system and the municipal healthcare system, including high-tech medical care, medical examination, rehabilitation, regular medical examinations, and their referral for treatment outside the territory of the Russian Federation is carried out at the expense of budgetary allocations from the federal budget
- Orphans and children left without parental care, persons from among orphans and children left without parental care are provided with vouchers to health camps, sanatorium-resort organizations in the presence of medical indications, and travel is paid to the place of treatment and back. ...
Right to property and living quarters
- Orphans and children left without parental care, persons from among orphans and children left without parental care who are not tenants of residential premises under social tenancy agreements or family members of a tenant of residential premises under a social tenancy agreement, or owners of residential premises, as well as orphans and children left without parental care, persons from among orphans and children left without parental care who are tenants of residential premises under social employment contracts or family members of a tenant of residential premises under a social employment contract or owners of residential premises , in the event that their residence in previously occupied residential premises is recognized as impossible, the executive authority of the constituent entity of the Russian Federation, on the territory of which the place of residence of these persons is located, in the manner prescribed by the legislation of this constituent entity of the Russian Federation, is provided with comfortable living quarters once Specialized housing stock under lease agreements for specialized residential premises.
- Living quarters are provided upon reaching the age of 18, as well as in the case of acquiring full legal capacity before reaching the age of majority.
- Upon an application in writing, living quarters are provided to them at the end of the period of stay in educational institutions, social service organizations, health care institutions and other institutions created in the manner prescribed by law for orphans and children left without parental care, as well as upon completion of receiving professional education, or the end of military service upon conscription, or the end of serving a sentence in correctional institutions.
- The executive authorities of the constituent entities of the Russian Federation are obliged to monitor the use of residential premises or the disposal of residential premises, by tenants or members of the families of tenants under social employment contracts or whose owners are orphans and children left without parental care, ensuring the proper sanitary and technical condition of these residential premises.
- The executive body of the constituent entity of the Russian Federation forms a list of orphans and children left without parental care, persons from among orphans and children left without parental care, who are subject to the provision of living quarters.
- The list includes persons who have reached the age of 14 years. The provision of living quarters to orphans and children left without parental care, persons from among orphans and children left without parental care, is the basis for excluding these persons from the list.
- The residence of orphans and children left without parental care, persons from among orphans and children left without parental care, in previously occupied residential premises, by tenants or family members of tenants under social employment contracts or whose owners they are, is recognized as impossible, if this contradicts the interests of these persons due to the presence of one of the following circumstances:
- Living on any legal basis in such residential premises of persons deprived of parental rights in relation to these orphans and children left without parental care, persons from among orphans and children left without parental care, persons suffering from a severe form of chronic diseases, in which joint living with them in the same dwelling is impossible.
- Residential premises are unsuitable for permanent residence or do not meet the sanitary and technical rules and regulations established for residential premises, and other requirements of the legislation of the Russian Federation.
- The total area of a dwelling per person living in a given dwelling is less than the accounting norm for the area of a dwelling, including if such a decrease occurs as a result of the introduction of orphans and children left without parental care, persons from the number of orphans and children left without parental care.
- Any other circumstance established by the legislation of a constituent entity of the Russian Federation.
Right to work
- The bodies of the state employment service, when contacting them with orphans and children left without parental care, aged fourteen to eighteen years, carry out career guidance work with these persons and provide diagnostics of their professional suitability, taking into account the state of health.
- Officials guilty of violating the terms labor contracts regulating their relations with orphans and children left without parental care, persons from among orphans and children left without parental care, bear responsibility in the manner prescribed by the legislation of the Russian Federation.
- Those looking for work for the first time and registered with the state employment service in the status of unemployed orphans, children left without parental care, persons from among children-orphans and children left without parental care, are paid unemployment benefits for 6 months in the amount of the average wages prevailing in the republic, krai, oblast, cities of Moscow and St. Petersburg, autonomous oblast, autonomous okrug.
- The bodies of the employment service provide vocational guidance for 6 months, send them for vocational training or receive additional vocational education, organize the employment of persons of this category.
- Employers (their successors) are obliged to provide employees - orphans and children left without parental care, persons from among orphans and children left without parental care, dismissed from organizations in connection with their liquidation, downsizing or staff reduction, employers (their successors) are obliged to provide at the expense of own funds, the necessary vocational training with their subsequent employment in this or another organization.
Judicial protection of rights
For the protection of their rights, orphans and children left without parental care, as well as their legal representatives, guardians (trustees), guardianship and trusteeship bodies and the prosecutor, have the right to apply in the prescribed manner to the relevant courts of the Russian Federation.
Orphans and children left without parental care have the right to free legal aid in accordance with the Federal Law "On Free Legal Aid in the Russian Federation".
A child can lose the closest people due to their premature departure from life.
However, with the growth of the well-being of society, the number of children deprived of family warmth with healthy parents increases.
Whatever the root of evil is, the child will not be alone with the problem. The issues of its development are assumed by the state.
Consider which children are classified as left without parental care, is this status different from orphanhood, and what kind of support a small person can count on.
Features of the status
From the point of view of the law concepts orphanhood and lack of parental care are distinguished:
Situations are common social orphanhood when parents consciously relieve themselves of all responsibility for the child. These people may be socially and economically not wealthy or quite successful in life, but a child is always a hindrance for them. And then the parents:
- refuse to pick up children from medical or educational institutions by issuing an official refusal. This can happen immediately after the birth of the baby or after some time;
- they simply “forget” about children in such institutions without legal surrender of parental responsibilities.
One more category of reasons when children are left without parental attention, is associated with the degradation of the personality of the mother / father due to addiction to alcohol and psychoactive substances, an asocial lifestyle. Moreover, in this situation, the parents are sometimes in their own way attached to the child, in rare moments of enlightenment showing all possible concern for the child. But this is an exception to the course of events. Usually, being in your own family is an emotional trauma and is simply dangerous for the baby.
Sometimes, in order to eliminate terminological confusion, underage orphans are also included in the category of children left without care. But in the future we will talk specifically about social orphanhood.
Legislative regulation of the issue
Negligent mothers and fathers are blameworthy. But the state also does not stand aside, providing support to children in difficult life situations.
Its principles regulate:
- Family Code of the Russian Federation;
- Federal Law No. 159 of 12.21.96 "On additional guarantees for orphans and children left without parental care";
- Federal Law No. 44 of 04.16.01 "On the State Data Bank of Children Left Without Parental Care."
In the event of the above situations, the fate of the minor is empowered to decide guardianship and guardianship authorities... Employees of the guardianship department of an abandoned child, control supervised families, living conditions and upbringing of minors in social institutions
How to issue this status
Grounds for recognition a child who has lost guardianship is much more than the well-known deprivation of parents of their rights.
But in any case, the guardianship authorities are obliged to make a decision on the permanent residence and upbringing of a minor within one month from the date of discovery of such a basis.
What is it for
It is important to understand that this status must be assigned officially... And this must be done without fail:
- firstly, for the applicant to receive social support measures and benefits. This is a very long period of time until the child turns 18 years old. There were cases when a person who has reached the age of majority, in fact left without parents, could not receive it only because at one time the guardianship authorities did not properly formalize his status.
- Secondly, the official status will protect the secondary orphan from material claims in the future of failed parents. Life is full of examples when an elderly alcoholic recalls the title of a parent after an adult child achieves significant success, and at its expense you can make good money.
How to assign a status
The state provides for a special algorithm for registering the status of a child left without parental care. Doing this is somewhat more difficult than recognizing him as an orphan.
Here you have to prove termination legal dependence of the child on the parents (or connection with them). This function is vested in the judiciary.
The initiator of the procedure must be presented to the meeting documentation:
- decisions on detention, imprisonment, as well as confirmation from penitentiary institutions about serving a criminal sentence;
- confirmation of the initial absence of parents - with dashes in the appropriate columns, statements of abandonment of the child, paper on admission to a social institution of foundlings and foundlings;
- a preliminary court decision to deprive the mother and / or father of parental rights;
- certificates, extracts and other confirmations of a serious illness of a parent with a restriction of his physical and / or legal capacity from health care institutions.
If necessary, other evidence admissible by law may be provided. For example, testimony of witnesses and eyewitnesses, audio and video materials.
But who can act as initiator of assignment a minor of the status of being without parental attention and maintenance:
- Of course, state guardianship and guardianship authorities;
- Relatives, as well as employees of educational, medical and social institutions;
- Upon reaching the age of 14, the child himself can apply (in writing) to the guardianship for his own removal from the family, restriction of the rights of the parents, etc. However, the decision is made by the state body on judicial consideration of the issue.
From the day of receipt of a message about the inappropriate living conditions of a minor, the guardianship authorities are obliged to check the child's place of residence within 3 days.
Actions of government agencies
Further custody finds out the fact that there is no guardianship of parents or relatives and, if the situation is confirmed:
- measures are taken to protect the rights and interests (removal from the family, temporary accommodation in a social hotel, orphanage, etc.);
- the information is sent to the executive authority of the subject to place the data in the regional databank of orphans.
At the same time, the issue of the permanent placement of the child is being resolved, information about him is placed in the federal databank of children without parental care (Federal Law 44).
Local executive power within a month from the date of submission of data to the regional bank, it must take measures to accommodate a minor in a family of citizens on the territory of its subject. If there is no suitable option, federal authorities are involved in the problem. They place the child in the care of families from other regions of Russia.
Actions of guardians, social workers. institutions
After assigning the status, these persons apply to the MFC or the Pension Fund of the Russian Federation to apply for specific, pensions, as well as open a child's personal bank account.
You need to have a package of documents with you:
- passport of a citizen of the Russian Federation, for an employee of the institution - a power of attorney to represent the interests of the child and the organization;
- birth certificate of the ward;
- documents confirming preferential status.
The exact list of papers depends on the specific circumstances of social / biological orphanhood.
State support for this category of citizens
Survivor's pension
It is imposed only in the event of the death of the parents or their recognition as dead / missing by the court.
It is paid until the child reaches the age of majority, with the continuation of full-time studies - up to 23 years.
Educational benefits
In-kind assistance and purchase allowances are allocated school supplies, teaching aids preparing for school. in the dining room for free.
Also free of charge, but the road will have to be paid.
All additional courses are provided free of charge. Upon admission to universities, secondary schools, colleges for daytime departments, students without parents continue to receive assigned social benefits and payments.
If a student receives a scholarship, then the standard amount is increased by 50%, "lifting" is paid annually in three times.
Housing provision
Upon completion of training in the boarding school, an adult child claims his own square meters of living space.
But only if it matches conditions:
- he does not have social housing or real estate in his property (for example, left after his parents);
- relatives do not have an “extra” square in which they can register a child;
- if the available housing does not meet sanitary and other standards.
"Kommunalka" and housing and communal services
Condition for benefits it is as follows: full-time education at a school or professional institution, as well as the availability of living quarters.
In this case, they are exempted from utility bills and living expenses. Own dwelling? Then the discount is 100%. If the child lives in the guardian's apartment, the benefit applies to the area of the guardian.
The medicine
In public health care institutions, children without parental care can count on for free help... In the presence of indications, preferential vouchers to sanatoriums, drug supply are relied on. When there is a disability, the list of preferences is broader depending on the group and the disease.
Part of the aid comes from the federal budget. But in the past few years, there has been a trend towards reallocating most of the aid to the regional level. The constituent entities operate their own programs to support this category of beneficiaries. You can find out about the full range of assistance measures at the MFC, pension offices and SZN bodies.
Social help
The state guarantees them increased legal protection, which cover the main aspects of life:
- housing issues;
- obtaining education at various levels;
- labor guarantees;
- medical service.
The government strongly encourages family custody of children without parents by establishing one-time and monthly benefits, natural benefits also to guardians.
But cash in on guardianship will not work: the supervisory authorities control the quality of the guardianship and "lead" the child almost to adulthood.
The rights of this category of citizens are described in the following video:
The Family Code provides for the following forms of placing children without parental care:
1.adoption (adoption),
2. guardianship (guardianship),
3.transfer to foster family,
4.deposition in institutions for orphans or children left without parental care of all types (for example, an orphanage family type, medical institutions, social protection institutions, etc.).
1.atsonship (adoption) - this is a priority form of placing children without parental care for upbringing in a family.
Conditions and procedure for adoption
at the present time, adoption is carried out only by the court (previously it was carried out by the guardianship and trusteeship authorities).
Only minor children left without parental care can be adopted as adopted. Upon reaching the age of ten, the child's consent is required. adoption of siblings by different persons is generally not permitted.
One of essential conditions adoption is the consent of the persons specified in the law. So, for the adoption of a child, the consent of his parents is required, since adoption terminates legal ties between them and the child.
parental consent is not required if they (Article 130 of the RF IC):
Unknown
Recognized by the court as legally incompetent,
Deprived of parental rights by the court,
For reasons recognized by the court as disrespectful, they do not live with the child for more than six months and evade his upbringing and maintenance.
at the same time, the same legal relations (including personal non-property and property relations) arise between the adoptive parents and the adopted children as between parents and children by birth.
Cancellation of adoption
Adoption can be canceled in court in the following cases:
Evasion of adoptive parents from the fulfillment of the responsibilities of parents assigned to them,
Abuse of these rights
Abuse of adopted children,
In this case, the child's consent to cancel the adoption is not required.
2.Guardianship and custody of children
Guardianship (guardianship )– the form of the placement of children left without parental care for the purpose of their maintenance, upbringing and education, as well as the protection of their rights and interests. Above children under the age of 14 is established guardianship, between the ages of 14 and 18 – guardianship.
The appointment of guardians and trustees is carried out by the guardianship and guardianship authorities at the place of residence of the child. the requirements for guardians (trustees) are largely identical to those for adoptive parents. Only adults with legal capacity may be appointed guardians (curators) of children. This takes into account their moral and other personal qualities, the ability to perform duties, the relationship between the guardian (curator) and the child, the attitude of the family members of the guardian (curator) to the child, as well as the desire of the child himself.
Persons deprived of parental rights, patients with chronic alcoholism or drug addiction, limited parental rights, former adoptive parents, if the adoption is canceled due to their fault, as well as persons who, due to health reasons, cannot carry out responsibilities for raising a child, cannot be appointed guardians (trustees) ...
Relatives and acquaintances who have taken the child into foster care often act as guardians (curators).
The rights and obligations of guardians (trustees) are in many ways similar to those of parents. In particular, guardians are obliged to take care of the maintenance, upbringing and education of the child, of his moral and physical development. Guardians make transactions on behalf of minors and carry out other necessary legal actions, guardians give their consent to transactions that teenagers make on their own behalf.
The difference between guardianship and parental relations is that guardianship is carried out under the control of the guardianship and trusteeship body. In addition, for the maintenance of the child, the guardian (curator) is paid by the state on a monthly basis cash.
Children under guardianship retain the right to receive alimony, pensions, benefits and other social benefits, the right to ownership or the right to use living quarters, the right to communicate with their relatives.
The grounds for termination of guardianship and trusteeship are:
The child reaches the age of 14 and 18, respectively, or his emancipation,
Death of a guardian (custodian) or ward,
Return of a minor to his parents,
Adoption of a ward or placement in an appropriate child care institution,
Removal of guardians (trustees), which is carried out in cases of improper performance of their duties. The consequence of this is the impossibility in the future to be an adoptive parent, guardian (curator), adoptive parent.
3.Foster family - relatively new institution in family law – is a kind of family-type orphanage, which includes some signs of the institution of adoption and guardianship (guardianship). This form of raising children is widespread abroad. In Russia by the beginning of the XXI century, there were about 1000 foster families.
The legislation does not establish a minimum number of children that can be placed in a foster family. The maximum number of adopted children, including siblings and adopted children, should not exceed eight people. For the transfer of a child who has reached the age of ten to a foster family, his consent is required.
The same restrictions apply to adoptive parents as to adoptive parents. Foster parents acquire the rights and obligations of a guardian (custodian) in relation to the adopted child. Alimony and hereditary relationships do not arise between foster parents and foster children. Foster children retain the right to alimony received before being transferred to a foster family, as well as inheritance rights in relation to relatives.
The main feature of a foster family is that it is formed on the basis of an agreement on the transfer of a child to foster care, which is between the guardianship and guardianship authority and foster parents. This contract, in its legal essence, is contract for the provision of services(Article 783 of the Civil Code of the Russian Federation). to which the general provisions on contract, if this does not contradict the peculiarities of the subject of the service agreement.
The basis for the conclusion of the contract is the application of persons wishing to take the child for upbringing, which is submitted to the guardianship and trusteeship body at the place of residence of the child. The application is accompanied by the conclusion of the guardianship and guardianship authorities about the possibility of being foster parents, as well as the relevant documents. The contract stipulates the responsibilities of adoptive parents (raising a child, creating the necessary conditions for receiving an education, taking care of health, physical, mental, spiritual and moral development, ensuring the protection of the rights and interests of the child, etc.). The guardianship and trusteeship body undertakes to transfer funds for the child and other payments on a monthly basis, as well as provide housing, furniture and other necessary things.
4. Family-type orphanage– a form of an educational institution that is intermediate between a foster family and an orphanage (boarding school). Its activities are governed by the decree of the Government of the Russian Federation of March 19, 2001 No. 195 "On the family-type orphanage"). The family-type orphanage is organized on the basis of the family. The family must consist of spouses whose marriage is registered. To organize a family-type children's home, it is necessary for both spouses to take up at least 5 and no more than 10 children; if the family has native or adopted children who have reached 10 years of age, then their consent is also required. The spouses are the organizers of the family-type children's home.
The total number of children in a family-type orphanage, including relatives and adopted children, should not exceed 12 people.
A feature of this form is that the family-type orphanage is a legal entity in the form of an educational institution(non-profit organization), the founders of which are the executive authorities of the constituent entity of the Russian Federation or local self-government bodies.
The relationship between the guardianship and guardianship authority and the family-type orphanage is determined treaty, concluded between them, which unites the family-type orphanage with a foster family.
Unlike other forms of placing children in foster care, when creating a family-type orphanage, the organizers (spouses), in addition to the documents presented when adopting a child, must submit a document on education. When organizing an orphanage, preference is given to spouses who have experience in raising children, working in children's social, educational and medical institutions, who are adoptive parents or guardians (trustees).
Control questions:
1. Expand the content of the concept, subject, principles of family law.
2. What sources of family law are used in Russia?
3. Expand the content of the concept of marriage. Describe the legal conditions
marriage and the procedure for its conclusion.
4. Grounds for declaring a marriage invalid.
5. Expand the content of the legal mechanism for divorce in the registry office and
judicial procedure.
6. Describe the content of the rights and responsibilities of family members.
7. The concept of an alimony obligation and the basis for its occurrence.
8. Describe the forms of placement of children left without parental care.
