Commentary on the article Judicial practice Comments 1. A child is a person who has not reached the age of eighteen years (the age of majority).
2. Every child has the right to live and be raised in a family, as far as possible, the right to know his parents, the right to their care, the right to live together with them, except in cases where this is contrary to his interests.
A child has the right to be raised by his parents, to ensure his interests, comprehensive development, and respect for his human dignity.
In the absence of parents, in the event of deprivation of their parental rights and in other cases of loss of parental care, the child’s right to be raised in a family is ensured by the guardianship and trusteeship authority in the manner established by Chapter 18 of this Code.
Commentary to Art. 54 IC RF
1. On the issue concerning the application of legislation by courts in resolving disputes related to the upbringing of children, see Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 No. 10 “On the application by courts of legislation in resolving disputes related to the upbringing of children.”
For the first time in our country, the RF IC has introduced special norms devoted to the rights of the child, which recognizes a person under the age of eighteen. A similar norm is contained in the Convention on the Rights of the Child (Article 1). The main law specifying measures to protect the rights of the child is the Federal Law “On Basic Guarantees of the Rights of the Child in the Russian Federation” dated July 24, 1998 N 124-FZ.
2. Although the title of the commented article speaks only about the child’s right to live and be raised in a family, paragraph 2 of this article also talks about such rights as the right to know their parents, the right to their care, the right to live together with them, to be raised by his parents, ensuring his interests, comprehensive development, respect for his human dignity.
Paragraph 2 of the commented article emphasizes the priority right of every child to live and be raised in a family, as far as possible. This norm presupposes his living, first of all, in his own family, which consists of his parents. In this case, the state performs only a protective function, protecting the family from external attacks. In relation to children who have lost their family for some reason, ensuring the right to be raised in a family means that when choosing forms of raising children, preference is given to family forms of upbringing: transfer for adoption, to a foster family, to a family of a guardian (trustee), patronage etc. Only in cases where placing a child in a family is not possible, children are transferred to child care institutions. In the latter case, priority is also given to family-type orphanages.
In the absence of parents, deprivation of parental rights or in other cases of loss of parental care, the child’s right to be raised in a family is ensured by the guardianship and trusteeship authority in accordance with the principle of priority family upbringing. Among the forms of placement for a child left without parental care, adoption is a priority.
The child has the right, as far as possible, to know his parents (Article 7 of the UN Convention on the Rights of the Child). This right is limited, first of all, by the fact that in some cases it is impossible to obtain information about the parents, for example, if the child was abandoned. The question of the extent to which the secret of the biological origin of a child when using methods of artificial human reproduction corresponds to the right to know one’s parents is controversial. Finally, it should be taken into account that in order to ensure the secrecy of adoption, the name of his real parents may be hidden from the child.
A child who is temporarily or permanently deprived of his family environment or who, in his own interests, cannot remain in such an environment, has the right to special protection and assistance. The principle of priority upbringing, among other things, presupposes the need to take due account of the desirability of continuity in the upbringing of the child and his ethnic origin, religious and cultural affiliation and native language.
The right of children to be cared for by their parents is not only to receive maintenance, but also to provide moral support (for example, in the event of a conflict situation).
The right to cohabitation means that the child must live with both or one of the parents. This right is specified in a number of other legal acts. According to paragraph 2 of Art. 20 of the Civil Code of the Russian Federation, the place of residence of minors under 14 years of age is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians. The rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation, approved by Decree of the Government of the Russian Federation of July 17, 1995 N 713, establish the procedure for registering minor citizens at the place of residence and at the place of stay. Thus, in accordance with clause 28 of the Rules, registration at the place of residence of minor citizens under 14 years of age and living with their parents (adoptive parents) is carried out on the basis of identity documents of the parents (adoptive parents). When a teenager reaches the age of 14, his registration at the place of residence is carried out on the basis of a passport. At the same time, the child’s right to live together with his parents is preserved.
Paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 of May 27, 1998 “On the application of legislation by courts in resolving disputes related to the upbringing of children” explains that when deciding the issue of the place of residence of a minor when his parents live separately (regardless of whether they are whether they are married), it must be borne in mind that the child’s place of residence is determined based on his interests, as well as with mandatory consideration of the opinion of a child who has reached the age of ten years, provided that this does not contradict his interests (clause 3 of Article 65 , Article 57 of the RF IC). In this case, the court takes into account the age of the child, his attachment to each of the parents, brothers, sisters and other family members, the moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development ( taking into account the type of activity and work schedule of the parents, their financial and marital status, bearing in mind that the mere advantage in the financial and living situation of one of the parents is not an absolute basis for satisfying the requirements of this parent), as well as other circumstances characterizing the situation , which developed in the place of residence of each of the parents.
However, living together with parents is not always good for the child. Therefore, the right to live together with parents has a number of exceptions, which are related to the need to protect the interests of the child, for example, in cases where leaving a child with parents poses an immediate threat to the child’s life or health (see commentary to Article 77), or when deprivation or restriction of parental rights (see comments to Articles 69, 73).
A child has the right to be raised by his parents. This right of the child is both the right and the responsibility of his parents (see commentary to Article 63).
In addition, the child has the right to ensure his interests, comprehensive development, and respect for his human dignity. The legislator does not indicate what exactly these rights are. These norms are declarative in nature, since respect for the human dignity of the child does not exclude the use of punishment.
Private life in the understanding of European legality
In our time, such a right as respect for private and family life is protected both by the rules of law of each individual state and by various international documents. This right is also enshrined in Article 8 of the Convention. According to European legal scholars and law enforcers, private and family life have a very close relationship with each other, which is why they were combined into one article.
Purely theoretically, this state of affairs does not raise any objections. But, nevertheless, in practice, lawyers have encountered some problems associated with this association.
Thus, the Convention understands respect for the right to family life to be respect for the rights of each family member individually. At the same time, global norms of international law, including the Universal Declaration of Human Rights, place emphasis on the family as a whole as one of the basic foundations of society.
Article 8 of the Convention
Art. 8: Everyone has the right to respect for his private and family life, his home and his correspondence.
Previously, in Article 8 of the Convention, instead of the term “respect”, another term was used – “inviolability”. Although, at first glance, it may seem that such a replacement of concepts reduced the degree of protection of this right, in practice it turned out that the term “respect” is a more successful formulation. In its meaning, it is more flexible, which allows legislators to more effectively develop means of protecting this right. The flexibility of the formulation also makes it possible to respond more sensitively to changes that occur in the life of society quite often and in one way or another change ideas about family and personal life.
The right to respect for private life enshrined in this article should be understood as follows: neither an ordinary person, nor someone in authority, nor the authorities themselves can interfere in your personal life without good reason (which are spelled out in the laws). In his daily life in any country that has declared democracy, any individual has the right to live his own life without any control over it.
Thus, a gross violation of the right to privacy is the disclosure of any personal or family secrets. It was this aspect of personal life that the ECHR protected in its decision in the case of Konovalova v. Russia. The Russian woman complained that medical students were present during her birth. Her consent was not obtained for this. The Russian citizen referred, among other things, to the fact that these persons had not yet accepted obligations to maintain medical secrets. The court took into account her arguments and found a violation of Article 8 of the Convention in her case.
In general, the European Themis interprets private life quite broadly, which makes it possible to cover both its current aspects and aspects that may appear in the future.
Family life includes the relationship between husband and wife, as well as the relationship between parents and their children. In addition, the rights of each family member individually are discussed here.
Thus, the ECtHR recognized the right of a French citizen in the case “Audievre v. France” to know about her real origin. The French authorities refused to give her information revealing the secret of her birth (about her biological parents). The court found a violation of Article 8 of the Convention in this decision of the French side.
Judicial practice under Article 54 of the RF IC:
Decision of the Supreme Court: Determination N 63-APG13-1 of 02/20/2013 Judicial Collegium for Civil Cases, appeal
Decision of the Supreme Court: Determination N 85-КГ14-10 of 03/03/2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 1-КГ15-3 of June 16, 2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. APL15-354 dated September 15, 2015 Board of Appeal, appeal
Decision of the Supreme Court: Determination No. 5-КГ15-75 of September 29, 2015 Judicial Collegium for Civil Cases, cassation
Decision of the Supreme Court: Determination No. 4-APG12-19 of November 28, 2012 Judicial Collegium for Civil Cases, appeal
Decision of the Supreme Court: Determination N KAS10-86 dated March 16, 2010 Cassation Board, cassation
Decision of the Supreme Court: Decision N GKPI09-1558 dated January 14, 2010 Judicial Collegium for Civil Cases, first instance
Decision of the Supreme Court: Determination N 201-КГ16-53 of 01/17/2017 Judicial Collegium for Military Personnel, cassation
Decision of the Supreme Court: Determination N 5-G09-36 of 05/27/2009 Judicial Collegium for Civil Cases, cassation
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Fair trial of civil cases in the Court and the position of the Court
According to the official position of the ECtHR, the right to due administration of justice is not subject to restrictions under any circumstances. It is enshrined in Article 6 of the Convention. This article, in particular, guarantees a fair and comprehensive consideration of any civil case, as well as the protection of all participants in the civil process. It follows that any violation of these rights may become the subject of legal proceedings in the ECHR.
The term “fairness”, first of all, includes equality of rights of participants in civil proceedings, regardless of their official position or the presence of other privileges. Discrimination on any grounds is also prohibited. Judges must treat people as legal equals regardless of the circumstances.
Also, evidence in any civil case must be proper (that is, obtained in accordance with all the rules established by law). Evidence obtained from “dubious sources” or in violation of legal procedure is not allowed to be included in the case. It is also unacceptable to suppress facts or ignore them if they can seriously affect the outcome of the case.
Thus, the court found a violation of this right in the case “Suominen v. Finland”. The woman complained that the district court did not include part of the evidence she provided in the case.
Complaints about the length of court proceedings in civil cases are also popular. Examples include the cases of Plaksin v. Russia and Voitenko v. Ukraine. Such cases are associated with contradictions that arise due to the vagueness of the concept of “reasonable time,” the interpretation of which is usually the responsibility of the judge.
The right to a first name, patronymic and last name (Article 58 of the Family Code)
The procedure for assigning a child a first name, patronymic and last name is determined in the UK. In Art. 58 of the IC establishes that the name is given by agreement of the parents, the patronymic is assigned by the name of the father. The child’s surname is determined by the surname of the parents, and if they have different surnames, by agreement of the parents, unless otherwise provided by the laws of the constituent entities of the Russian Federation. Disagreements between parents regarding the child’s first or last name (if the parents have different last names) are resolved by the guardianship and trusteeship authorities.
Information about the first name, patronymic and last name is entered into the child’s birth certificate and into the child’s birth certificate (which is handed over to the parents) during the state registration of the child’s birth in the civil registry office. If paternity of the child has not been established, then the child’s name is given according to the mother’s instructions, the patronymic is given by the name of the person recorded in the child’s birth certificate as his father, and the surname is given by the mother’s surname.
The child’s first and last name (if the parents have different last names) can be changed before the child reaches 14 years of age at the joint request of the parents by the guardianship and trusteeship authorities, based on the interests of the child. Such a request may be caused by an unsuccessful combination of first name and patronymic, difficulties in pronunciation and other reasons. After the child reaches the age of 10 years, his consent is required.
If the parents live separately (regardless of the reasons for such residence), the one with whom the child permanently resides has the right to request that the child be given his last name, which the applicant bears at the time of application (premarital, second marriage). The issue is resolved by the guardianship and trusteeship authority based on the interests of the child and necessarily with his consent if he has reached the age of 10 years. The opinion of the other parent is identified and necessarily taken into account, but is not decisive for making the final decision on changing the child’s surname. Changing the child's surname is carried out solely in his interests.
The right to communicate with parents and other relatives (Article 55 of the Family Code)
A child has the right to communicate with his parents also if they live in different states (Article 10 of the UN Convention on the Rights of the Child).
The right of grandparents, brothers, sisters and other relatives to communicate with the child is protected by law. If the parents (one of them) refuse to provide the child’s close relatives with the opportunity to communicate with him, the guardianship and trusteeship authority may oblige the parents (one of them) not to interfere with this communication. If the parents (one of them) do not obey the decision of the guardianship and trusteeship authority, close relatives of the child or the guardianship and trusteeship authority have the right to file a lawsuit to remove obstacles to communication with the child. The court resolves the dispute based on the interests of the child and taking into account his opinion (Article 67 of the Family Code).
A child who is in an extreme situation (detention, arrest, detention, being in a medical institution, etc.) also has the right to communicate with his parents and other relatives. This right is exercised in the manner prescribed by law, that is, in accordance with those laws that establish the procedure for the activities of the relevant institutions. Thus, the Penal Code provides for the possibility and establishes the procedure for visits of convicted minors with their parents and other close relatives (siblings, grandparents).
