Article 273 of the Code of Civil Procedure of the Russian Federation. Consideration of an application for adoption (current version)
The mandatory participation of guardianship and trusteeship authorities in the judicial process certainly contributes to increasing the efficiency of consideration and resolution of adoption cases, as well as the quality of decisions made by the court. These bodies can provide significant assistance to the court in determining the actual family conditions, examining the living conditions and upbringing of children, assessing the actual circumstances from the perspective of pedagogy, etc. . However, as evidenced by materials summarizing judicial practice, often representatives of the guardianship and trusteeship authority, duly notified of the time and place of the court hearing, do not appear at the court hearing, in violation of Part 1 of Art. 167 of the Code of Civil Procedure of the Russian Federation, the court is not notified of the reasons for failure to appear, motions to consider the case in their absence or to postpone the hearing on the case are not submitted, which leads to repeated postponement of the hearing on the case and, as a consequence, to violation of the deadlines for consideration of civil cases, to untimely restoration of rights and the legitimate interests of minor children and other persons participating in the case. In addition, guardianship and trusteeship authorities often ask to consider a case without their participation, despite the fact that one of the responsibilities assigned to these authorities by federal laws is to protect the rights and legally protected interests of minor children (for more details, see Review of the practice of courts resolving disputes related to with raising children, approved by the Presidium of the Supreme Court of the Russian Federation on July 20, 2011).
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See: Tsepkova T.M. Problems of legal regulation of the procedural status and activities of persons participating in judicial family cases: Author's abstract. dis. ...cand. legal Sci. Saratov, 2000. P. 23.
3. A special feature of the stage of judicial proceedings in adoption cases is the participation of the adopted child in the process, including at the age of ten to fourteen years.
In accordance with Art. 12 of the Convention on the Rights of the Child (New York, 20 November 1989), a child who is capable of forming his own views must be ensured the right to freely express those views, in particular the opportunity to be heard in any proceedings affecting the child, or directly, or through a representative or relevant authority in the manner prescribed by the procedural rules of national legislation. The Russian legislator, specifying the norms of international legislation, in Art. 57 of the RF IC also enshrines the child’s right to express his opinion. The National Strategy of Action in the Interests of Children for 2012 - 2021, approved by Decree of the President of the Russian Federation of June 1, 2012 N 761, draws attention to the need to ensure children’s access to justice, regardless of their procedural capacity and status, which will contribute to the creation of a child-friendly justice for the child, the main principles and elements of which are, in particular, the focus on ensuring the needs, rights and interests of the child; respect for the personality and dignity of the child, his private and family life; recognition of the key role of the family for the survival, protection of rights and development of the child; active use in the judicial process of data about children, their living conditions and upbringing, obtained by the court in the manner prescribed by law; strengthening the protective function of the court in relation to the child.
In view of the above, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 8 of April 20, 2006, directed the courts to, in order to maximize the interests of the child when considering adoption cases, find out the child’s opinion on the issue of his adoption directly at the court hearing in all cases, including including in relation to children under ten years of age, if the court finds that the child is capable of forming his own views on matters relating to his adoption. If there are grounds to believe that the presence of a child in court may have an adverse effect on him, the court must find out the opinion of the guardianship and trusteeship authority on this matter. At the same time, as judicial practice shows, in cases where it was not possible to interview a child under the age of ten at a court hearing (in particular, due to the insufficient level of speech development, mental, emotional state of the child), the child’s opinion on the issue of his adoption, as well as his relationship to the adoptive parents, on behalf of the court, can be clarified by a specialist (psychologist) of the child care institution in which the child is located.
Example: the judges of the Irkutsk Regional Court, when deciding on the possibility of interviewing a child under the age of ten, in a court hearing, asked an educational psychologist whether the child had reached a sufficient degree of development and whether he was able to formulate his own views on issues of his adoption, as well as whether questioning the child in court will negatively affect his mental state. At the court hearing, taking into account their age and degree of development, children were asked questions regarding their living conditions, whether they had favorite activities, as well as whether they knew about the existence of minor brothers and sisters (if any), whether they remembered their relatives, whether they visited their relatives in the children's institution, do they have friends and do they want to communicate with each other later, how do they feel about the applicants, why did they like the adoptive parents, how do they feel about the adoptive parents becoming their parents, do they have any then fears, doubts about this, whether they want to leave with them and live with their family and whether they understand that they will have to leave Russia and live away from friends and relatives, and other questions (for more details, see Review of review practices in 2014 year by regional and equal courts of cases on the adoption of children by foreign citizens or stateless persons, as well as citizens of the Russian Federation permanently residing outside the territory of the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on July 8, 2015).
At the same time, as stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 No. 8, if for health reasons a child, even who has reached the age of fourteen, cannot appear at a court hearing (for example, the child has been disabled since childhood and is limited in movement), the court, taking into account the interests of the child, can find out his opinion regarding adoption at his location. In addition, the court, based on the provisions of paragraph 2 of Art. 132 of the RF IC, has the right to consider the case without the participation of a child who has reached the age of fourteen years, and without obtaining his consent to adoption, if before filing an application for adoption the child lived in the family of the adoptive parent and considers him to be his parent.
As an analysis of judicial practice shows, courts follow the proposed guidelines, which makes it possible to consider adoption cases taking into account the interests of the child as much as possible.
Example: The Vladimir Regional Court considered a case based on an application from Italian citizens to adopt a girl born in 2004 who was under the age of ten. The court found that the girl has two siblings, born in 2000 and 1997, who were also left without parental care and are being raised together with the adopted child in an orphanage. In order to ensure the best interests of the child, the court found it necessary to find out the opinion of the adoptee and her brothers on the issue under consideration. In response to questions from the court, the girl explained that she did not agree to be adopted by Italian citizens and did not want to go to Italy, she wanted to stay with her brothers who loved her, took care of her, and stood up for her. A survey of the brothers showed that they also object to the adoption of their sister by Italian citizens, since they constantly communicate with each other, are friends, see each other every day, but if their sister is adopted, they will not be able to communicate.
Having assessed in aggregate the explanations of the adopted child and her brothers, as well as taking into account other circumstances established in the case, the court refused to satisfy the application of Italian citizens (see Review of the practice of consideration in 2013 by regional and equal courts of cases on the adoption of children by foreign citizens or stateless persons , as well as citizens of the Russian Federation permanently residing outside the territory of the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on July 2, 2014).
4. Along with the above persons, when considering an application for adoption, the court may involve biological parents, as well as other interested parties, in the process. The participation of biological parents in the trial may be due to the need to obtain their consent to adopt a child in accordance with the requirements of Art. 129 RF IC. As a rule, a parent’s consent to adoption is determined by the guardianship and trusteeship authority, but can be expressed directly in court when considering an adoption case. In this case, the parent’s consent to adoption must be recorded in the minutes of the court hearing and signed by him personally, and also reflected in the decision. It is necessary to take into account that, based on the priority of the parents’ rights to raise a child, any of them can, before a court decision is made, revoke their previously given consent to adoption, regardless of the motives that prompted him to do this.
Based on the provisions of family law, the court may involve other interested parties in the process. In particular, when adopting a child of minor parents under the age of sixteen, the consent of their legal representatives is also required, and in their absence, the consent of the guardianship and trusteeship authority. If children with parents (parents) are under guardianship (trusteeship), in foster families, educational institutions, medical organizations, social welfare institutions and other similar organizations, then written consent to their adoption given by guardians (trustees), adoptive parents , by the heads of organizations in which children are located, does not exclude the need to obtain parental consent for the adoption of a child.
As follows from the analysis of judicial practice, as interested parties in adoption cases, the courts also consider persons who have become acquainted with information about the child and refused his adoption or family upbringing. Their participation in the process in such cases is due to the need to verify the accuracy of the information provided by the guardianship and trusteeship authority.
Example: The Omsk Regional Court, when considering a case on an application from a Spanish citizen to adopt a minor, in order to verify the information provided regarding persons who became acquainted with information about the child and refused her adoption or family upbringing in other forms, sent a separate order to the Bolsheukovsky District Court of Omsk region to interview these persons as witnesses regarding their visit to the child and the reasons for refusing to adopt a minor. The information contained in the certificate of the Department of Education of the city of Omsk, that these persons visited the minor, but did not choose her due to her state of health and adopted other children, was confirmed during the trial (see Review practice of consideration in 2012 by regional and equal courts of cases of adoption of children by foreign citizens or stateless persons, as well as citizens of the Russian Federation permanently residing outside the territory of the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013).
5. As stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 26, 2008 N 13 “On the application of the norms of the Civil Procedure Code of the Russian Federation when considering and resolving cases in the court of first instance”, based on the tasks of civil proceedings, the court of first instance must ensure correct consideration and resolution of civil cases within the time limits established by law. As a general rule, adoption cases must be considered and resolved by the court before the expiration of two months from the date the application was received by the court (see Part 1 of Article 154 of the Code of Civil Procedure of the Russian Federation).
Within the specified time frame, the court, after a comprehensive and careful assessment of the evidence, must make a decision that meets the interests of the child. It is at the stage of the trial that the role of the court is most manifested: it directs the course of the trial, creates conditions for a comprehensive and complete study of the evidence and circumstances of the case, eliminates from the trial everything that is not related to the case under consideration, takes the necessary measures to ensure proper order in a court hearing, is vested with special powers to make a lawful and informed decision, which resolves the case on its merits.
When considering adoption applications, courts, guided by the interests of the children, must first check whether there are grounds that exclude the applicant from being an adoptive parent. It should be borne in mind that in each specific case the court has the right to deviate from individual requirements imposed on the adoptive parent. In particular, in accordance with paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 No. 8, the court has the right to independently decide the issue of a person’s ability to be an adoptive parent, regardless of the size of his income, if, taking into account the interests of the child and other noteworthy circumstances, he comes to the conclusion that it is necessary to satisfy the application for adoption (for example, the child is being adopted by his relative; before filing the application for adoption, the child lived in the family of the adoptive parent and considers him to be his parent; the adoptive parent lives in a rural area and has a subsidiary farm). A prerequisite for making such a decision is the need for its motivation, which must be reflected in the court decision. In addition, the court also, in the interests of the child being adopted, has the right to allow adoption by persons who, although they have not undergone psychological, pedagogical and legal training of candidates for adoptive parents, but, for example, have a pedagogical, psychological and pedagogical education, experience in upbringing, training, social adaptation children in organizations for orphans and children left without parental care, be sure to motivate their position.
When deciding on the admissibility of adoption in each specific case, the court should find out and take into account the moral and other personal qualities of the adoptive parent, as well as members of his family living with him (circumstances characterizing their behavior at work, at home, facts of criminal or administrative liability etc.), the state of health of the adoptive parent and these persons, the relationships that have developed in the family, the relationships that have arisen between the adoptive parent and the child, as well as the attitude of the adoptive parent’s family members towards the child. These circumstances must be equally taken into account when adopting a child by both strangers, stepfather, stepmother, and his relatives. The court should also examine the circumstances of the applicants’ communication with the child being adopted and make sure that contact has been established between them. At the trial stage, before making a court decision on the case, the court also needs to find out whether the adoptive parents are aware of the child’s illnesses, and whether they will be able to provide such a child with proper care and appropriate treatment.
When assessing the living conditions of the applicants, the courts examine documents confirming the ownership or right to use the residential premises, find out the conditions for providing housing for use (term, compensation, amount of payment), the consent of the owners of the residential premises (if the applicants are not such) to live in the residential premises placement of the child being adopted, compliance of the house (apartment) with sanitary and hygienic standards, the presence of appropriate conditions for the upbringing and development of the child, the location of housing, the presence of infrastructure facilities in a given locality (medical institutions, pharmacies, kindergartens, secondary schools, playgrounds, places for holidays with children, etc.) (see Review of the practice of considering cases of adoption of children in 2012 by regional and equal courts).
In order to comply with all legal requirements, the court is obliged at the stage of trial to find out whether the biological parents or other legal representatives of the child have consent to adoption, except in cases where adoption is permitted without such consent. It should be borne in mind that even if the case file contains the parent’s written consent to adoption, the court is obliged to check whether such consent has been revoked at the time the case is considered in court. At the same time, the refusal of a guardian (trustee), adoptive parents or heads of educational institutions, medical organizations, social welfare institutions and other similar organizations in which children are located to give consent to adoption, in contrast to the refusal of parents, does not prevent the court from positively resolving the issue of adoption if the interests of the child so require.
6. When the court examines documents confirming the impossibility of transferring a child for upbringing to a family of Russian citizens or for adoption to the child’s relatives, regardless of the citizenship and place of residence of these relatives, documents confirming the availability of information about the child being adopted in the federal data bank on children left without parental care , as well as documents containing information on measures taken by the guardianship and trusteeship authorities, regional and federal operators to place (assist in the placement of) a child left without parental care to be raised in families of citizens of the Russian Federation, the court in accordance with paragraph 14 of the Resolution of the Plenum The Supreme Court of the Russian Federation dated April 20, 2006 N 8 should check:
- since when information about the child was in the federal data bank about children, whether the information about the child was entered correctly (about his age, state of health, etc.);
- whether he was offered for upbringing to families of citizens of the Russian Federation permanently residing in Russia, or for adoption to his relatives, and if so, for what reasons did these persons refuse to accept the child for upbringing into a family (for adoption, under guardianship (trusteeship), into a foster family, foster family).
In order to comprehensively verify these circumstances, the court has the right to interrogate as witnesses the child’s relatives, as well as persons who became acquainted with information about the child and refused his adoption or family upbringing in other forms.
Conclusions on the living conditions of adoptive parents - foreign citizens, stateless persons, as well as Russian citizens permanently residing abroad and who are not relatives of the children, and conclusions on the possibility of being adoptive parents, drawn up by foreign organizations for the adoption of children (adoption agency) are also subject to separate assessment on the part of the court, which must verify the authority of these organizations to draw up such opinions on behalf of the competent authority of the relevant state. If the indicated persons - potential adoptive parents - present documents on the completion of training of candidates for adoptive parents in the territory of the state in which they permanently reside, the court, in particular, needs to check whether the training of candidates for adoptive parents has been carried out. If the court comes to the conclusion that these persons have not undergone proper training on the territory of a foreign state, the court has the right to postpone the hearing of the case, giving these persons a period of time to undergo training as candidates for adoptive parents on the territory of Russia.
The court must carefully examine the conclusion of the competent authority of the state on the applicants’ ability to be adoptive parents in order to establish the absence of any obstacles for this person to be an adoptive parent (in particular, whether there are any obstacles due to the difference in age between the adoptive parent and the adoptee; if the application for adoption is submitted by a single person person, then whether this circumstance, according to the legislation of the relevant state, is an obstacle to the adoption of a child, etc.). In order to establish the content of the norms of foreign family law, the court may apply in the prescribed manner for assistance and clarification to the Ministry of Justice of the Russian Federation and other competent bodies of the Russian Federation or involve an expert in the field of foreign law, and also has the right to invite interested parties to submit documents confirming the content of the norms of foreign family law the rights they refer to in support of their claims or objections, legalized in the prescribed manner. It should be borne in mind that if the content of the norms of foreign family law, despite the measures taken, is not established, the court will apply the legislation of the Russian Federation.
Commentary on Article 273 of the Code of Civil Procedure of the Russian Federation
In order to ensure the secrecy of adoption protected by law (Article 139 of the Criminal Code), the court considers all cases of this category in a closed court session, including the announcement of the decision. For the same purposes, persons participating in the consideration of the case must be warned about the need to keep information about adoption that has become known to them secret, as well as about the possibility of bringing to criminal liability for disclosing the secret of adoption against the will of the adoptive parent in cases provided for in Art. 155 of the Criminal Code, which is reflected in the minutes of the court hearing and confirmed by the signatures of these persons.
Considering that consideration of an adoption case in a closed court session is mandatory by force of law, the judge makes a decision to hear it in a closed session already at the stage of preparing the case for trial and indicates this in the ruling on assigning the case to trial. In this definition it is necessary to make reference to Art. 273 Code of Civil Procedure.
The consideration of the case in a closed court session is indicated in the minutes of the court session, as well as in the court decision (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation by courts when considering cases of adoption of children”).
Consideration of adoption cases is carried out with the mandatory participation of: 1) adoptive parents (adoptive parent); 2) a representative of the guardianship and trusteeship authority; 3) prosecutor; 4) a child who has reached the age of 14 years.
If the court finds this necessary, parents, other interested parties and the child himself aged 10 to 14 years are also involved in the case.
The article under comment provides for mandatory personal participation in the consideration of the case by the applicant himself, a representative of the guardianship and trusteeship authority, as well as the prosecutor. It should be borne in mind that the presence of a representative duly authorized by the applicant to conduct the case in court does not relieve the person(s) wishing to adopt a child from the obligation to appear in court. Representatives in cases of this category have the right, without the personal participation of the principal, to carry out actions outside the trial stage, in particular, to collect and present the necessary evidence, when preparing the case for trial, to give the judge explanations on the substance of the application, to provide additional evidence at the request of the judge, to raise the issue of providing assistance in requesting written and material evidence, etc. (Clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation by courts when considering cases of adoption of children”).
