Secrecy of adoption: rights and rules of enforcement, responsibility for disclosure

Adoption is a procedure for placing minor children into a new family. The state considers the care of adoptive parents for a child to be the optimal form of upbringing (Article 124 of the Family Code of the Russian Federation). Legislation guarantees the protection of the interests of a minor, enshrining the secrecy of adoption.

Article 124 of the Family Code of the Russian Federation “Children for whom adoption is permitted”

The secret of child adoption and its provision

The secret of adoption and its provision lies with many people. Among them:

The judges who made the adoption order;
All officials who carried out the fact of state registration;
Other persons who in one way or another relate to the adoption process: • Employees of guardianship and trusteeship authorities; • Medical workers; • Employees of children's organizations where adopted children were located; • Relatives, friends and acquaintances of the family involved in the adoption.

According to the rules of adoption, civil registry officials, without the consent of the adoptive parents, do not have the right to provide any information or issue documents that disclose information about the adoptive parents and the child.

If the court finds the reasons valid, changes in the date of birth can be made to the birth certificate of a child who is one year old or more. According to the same provision, the date of registration of the birth certificate may also change.

The secrecy of the adoption of a child and its provision are provided for by the norms of the Family Code, which are designed to prevent the dissemination of information about the fact of adoption. Thus, women who have adopted a child are granted maternity leave (instead of adoption leave) from the date of adoption and for 70 calendar days, and when adopting two or more children - 110 calendar days.

Prompt assistance from an adoption specialist

Legal basis for the secrecy of adoption

The state protects the interests of family and childhood at the legislative level.
An entire chapter of the Family Code of the Russian Federation is devoted to the issues of adoption of children left without parental care. The provisions of Chapter 19 of the RF IC regulate:

requirements for candidates for the role of parents;
registration procedure;
legal consequences of accepting a child into the family;
the possibility of canceling the transfer of a minor to adoptive parents;
the need for secrecy of adoption.

Responsibility for disclosure of information is established by the Criminal Code of the Russian Federation (Article 155). Violators are considered to be persons who disclose information about the lack of kinship without the consent of the adoptive parents.

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Article 155 of the Criminal Code of the Russian Federation “Disclosure of the secret of adoption”

Which persons can act as adoptive parents?

Adoptive parents can be all adults of both sexes, with the exception of:

People who have been declared incompetent or have limited legal capacity by a court.
A married couple, one of whose representatives is declared incompetent.
Those who have been deprived of parental rights by court
People who are removed from their duties as a guardian because they have not fully fulfilled their responsibilities.
Former adoptive parents, if their adoption was canceled by court.
People who cannot act as parents for medical reasons.
Those individuals who, at the time of adoption, do not have sufficient income to ensure the proper maintenance and upbringing of the child
People who do not have a permanent place of residence.
Those who have a criminal record or are under investigation.

Also, people who are not married cannot jointly adopt the same child.

Consequences of disclosing the secret of adoption

If information about the transfer of a child becomes known to unauthorized persons, the perpetrator may be prosecuted. A criminal act qualified under Article 155 of the Criminal Code of the Russian Federation is characterized by a moderate degree of severity.

Features of the offense

Disclosure of the fact of adoption can be accidental or intentional.
Unintentional disclosure of a secret occurs in the following cases:

the testator, deprived of parental rights, left a will in favor of the child;
the adopted baby requires urgent medical intervention using biological material from blood relatives;
the child received access to adoption documents.

In some cases, parents inform a minor about his origin for moral or pedagogical reasons.

The most common motives for deliberate publicity are:

envy of the child’s living conditions;
attempts to put pressure on adoptive parents;
blackmail;
desire to take revenge on the adoptive parents for the insult caused.

The need to protect secrecy is waived if the parents themselves disclose information about the adoption.

Qualifying features

Circumstances that influence the identification of a crime are called qualifying features of an offense.
Disclosure of information about adoption refers to criminal acts committed against minors and families (Chapter 20 of the Criminal Code of the Russian Federation). The following points can be highlighted from the text of the article:

the crime was committed by a person whose professional duties include concealing the fact of the transfer of the child;
the secret of adoption is revealed for selfish reasons.

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The key sign of a violation falling under Article 155 of the Criminal Code of the Russian Federation is the communication of information about the absence of family ties to citizens who are not obliged to maintain secrets.

Corpus delicti

The basis for bringing to justice and imposing punishment is the composition of criminal acts.
If unauthorized persons have gained access to information about the transfer of the child to adoptive parents, the crime is considered completed. The composition of actions is formal. At the same time, to qualify a violation under Article 155 of the Criminal Code of the Russian Federation, the presence or absence of consequences does not matter.

The following key features of a crime when disclosing the secret of adoption are identified:

the object of the criminal act is the private life of the foster family;
the presence of direct intent (the person realizes that he does not have the right to make the fact of adoption public);
the objective side of actions is the communication of information to any person (including a child);
subject - an official (special type) and an ordinary citizen who has reached the age of 16 (general type).

Criminal law includes relatives, acquaintances, and neighbors of the foster family as common subjects of crime.

How to prove the disclosure of the secret of adoption

A criminal act related to Article 155 of the Criminal Code of the Russian Federation is considered committed from the moment information about the fact of adoption is transmitted to strangers or the child.
In practice, law enforcement agencies have difficulty identifying who is responsible for the disclosure of information. In addition, it is quite difficult to prove selfish motives.

To confirm a criminal act, the following are used:

witness statements;
recordings of telephone conversations;
photographic materials;
words of a child;
video recordings;
electronic correspondence (via SMS and email).

Attention! If the secret of the foster family is revealed, the adoptive parents must file a complaint with the police or the court.

Cancellation of adoption

Cancellation of adoption can be carried out in court with the participation of the prosecutor, guardianship authorities and trustee organizations.

The reasons for this may be:

If adoptive parents abuse parental rights;
When adoptive parents avoid fulfilling their obligations;
In case parents abuse their adopted children;
Chronic alcoholism or drug addiction on the part of the adoptive parents;
Other reasons that are based on the personal opinion and attitude of the child.

Cancellation of the fact of adoption may be demanded by:

Biological parents of the child or his adoptive parents;
A child who is 14 years old;
Guardianship or guardianship authorities;
Prosecutor.

Thus, it should be noted that the legislation of the Russian Federation is on the side of the adoptive parents and the child who ends up in a new family. The secrecy of adoption is directed mainly at third parties, and not at the child himself. The child must be informed about the fact that he is adopted with the consent of the parents. Only they determine when to do it.

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Why should you keep a secret?

The Basic Law of the State establishes the right of every person to personal and family secrets (Article 23 of the Constitution of the Russian Federation). When deciding to adopt, parents accept responsibility for the child, including his physical and mental health.

The main reasons for keeping secrets are:

protection from attempts to remove the baby;
protecting the family from excessive attention from strangers;
ensuring psychological comfort;
protection from interference of biological parents in raising a child.

The advantage of keeping a secret is that minors recognize that they belong to a family. In addition, when inheriting, the child has the same rights along with other close relatives.

Among the disadvantages of the secrecy of the procedure is the fear of adoptive parents that information about adopted children will become available to unauthorized persons.

Unraveling the mystery

Disclosure of the secret of adoption - disclosure of information about the adoption of a child by his adoptive parents without their consent.

Information can be disclosed by persons who received it in the performance of their official or professional duties. Also, strangers who learned information from their relatives, friends, acquaintances, etc. can reveal the secret.

Responsibility lies not only with officials, but also with ordinary citizens who disclosed secret information against the will of the adoptive parents, guided by selfish, base motives.

How is secrecy ensured?

First of all, the preservation of the secrecy of adoption is ensured by the non-disclosure of information about the child and his parents by persons who have access to this type of information; however, the ban on the publication of the latter is not always relevant.

So, for example, if the adoptive parents themselves do not hide the fact of the child’s origin, then the need to hide it disappears by itself.

In other cases, the issue of maintaining a secret is irrelevant due to the fact that the child initially knows about his adoption. This is possible if the minor has reached 10 years of age . Reaching this age limit means that the child must express consent or disagreement to his transfer to be raised by a family.

In addition to silence, ensuring the secrecy of the adoption of a child can be done in other ways. All of them are prescribed in the Family Code of the Russian Federation, and are implemented at the initiative of the adoptive parents and with the approval of the court.

Changing the name of the person being adopted (Article 134 of the RF IC). In this case, the child’s new data is indicated in the court decision, and the change is carried out according to the following rules:

the surname is assigned the same as that of the adoptive parents, and if the couple has different surnames, then the surname of one of them is chosen;
the name is chosen at the discretion of the adoptive parents;
the patronymic name is assigned according to the name of the adoptive parent, if it is a man, or at the discretion of the woman, if she is unmarried;
If the child being adopted is 10 years old or more, the change of data is carried out only with his consent.

Change of date and place of birth (Article 135 of the RF IC). As in the previous case, this right is exercised on the basis of a court decision, but provided that the child has not reached the age of 1 year at the time of adoption. In this case, the date of birth is postponed within three months. In exceptional cases, the court may allow the adoptive parents, at their request, to make changes to the data of the older child in question.
Entering the data of the adoptive parents as parents of the adopted child in the birth record book (Article 136 of the RF IC). If the initiators of adoption include in the application a request to make an appropriate entry, the court has the right to satisfy it. In this case, the civil registry office indicates the persons who adopted him as the child’s parents. When the adoptee reaches the age of 10 years, an entry is made only with his consent, except for cases where the child was already raised by adoptive parents before the decision was made and considers them his parents.

How to find out about biological parents without going to court?

From 1926 to 1996, decisions on adoption were made not by the courts, but by councils of deputies of the executive commission. This system was administrative, says Sarchenko: “District executive commissions (RICs) considered adoption issues in rural areas, and in cities this was dealt with by public education departments. The issue of adoption was considered on an equal basis with all economic issues. The adoption order was given to the registry office, while the administration kept the materials of the meetings, which after some time were deposited in the archives. It turns out that those who were adopted before 1996 can find out their name before adoption by studying the materials of the REC meetings in the archives for the required period.”

A person who comes to the archive for the first time to look for documents on adoption in the RIC funds or funds of public education departments will need to fill out a form. “In the column “purpose of research” you should not write “search for information about adoption,” it is better to indicate “study of the issue of social and everyday development of the region, province” or “land issue,” says Natalya Sarchenko. “Searching for documents in the archive is contrary to the law on the secret of adoption, so it is better not to attract the attention of archivists with a direct request.”

Having discovered the decree, you can find out the real name and date of birth of the adopted child. The first option for searching for information about relatives is to restore the father’s name from the child’s last and patronymic names, and then request information about him in the archives. The problem is that the repositories may not have information about this person because he may not have done anything to end up in the archival documents. The second option is to take an archival extract with this information and contact the registry office with it, and then go through the court to obtain an adoption certificate.