A comprehensive analysis of the forms of placement of children left without parental care. Placement of children in organizations for orphans and children left without parental care Modern system of placement of orphans in the Russian Federation

16.04.2020

Family code provides for the following forms of placement for children left without parental care:

1. adoption (adoption),

2. guardianship (trusteeship),

3. transfer to a foster family,

4. placement in institutions for orphans or children without parental care of all types (for example, an orphanage family type, medical institutions, institutions social protection and etc.).

1.atsonship (adoption) – This is a priority form of placing children without parental care in a family.

Conditions and procedure for adoption

Currently, 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. When a child reaches ten years of age, his or her consent is required. sibling adoption by different persons generally not allowed.

One of the most important conditions for adoption is the consent of persons specified in the law. Thus, to adopt a child, the consent of his parents is required, since adoption terminates the legal ties between them and the child.

Parental consent is not required if they (Article 130 of the RF IC):

Unknown

Declared incompetent by the court,

Deprived by the court parental rights,

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 arise between adoptive parents and adopted children (including personal non-property and property relations) as between parents and natural children by origin.

Cancellation of adoption

The adoption may be canceled in judicial procedure in the following cases:

Evasion of adoptive parents from fulfilling their parental responsibilities,

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 trusteeship of children

Guardianship (guardianship )– form of 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. For children under 14 years of age it is established guardianship, aged 14 to 18 years – guardianship.

The appointment of guardians and trustees is carried out by the guardianship and trusteeship authorities at the child’s place of residence. The requirements for guardians (trustees) are in many ways identical to the requirements for adoptive parents. Only adults with legal capacity can be appointed as guardians (trustees) of children. This takes into account their moral and other personal qualities, ability to perform duties, the relationship between the guardian (trustee) and the child, the attitude of the guardian (trustee’s) family members towards the child, as well as the wishes 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 was canceled due to their fault, as well as persons who, for health reasons, cannot fulfill the responsibilities of raising a child cannot be appointed as guardians (trustees). .

Relatives and acquaintances who took the child into care often act as guardians (trustees).

The rights and responsibilities 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, his moral and physical development. Guardians make transactions on behalf of minors and carry out other necessary legal actions, trustees give consent to transactions that teenagers make on their own behalf.

The difference between guardianship and parental legal relations is that guardianship is carried out under the control of the guardianship and trusteeship authority. In addition, the state pays monthly money to the guardian (trustee) for the maintenance of the child.

Children under guardianship retain the right to receive alimony, pensions, benefits and other social payments, the right of ownership or the right to use residential premises, and the right to communicate with their relatives.

The grounds for termination of guardianship and trusteeship are:

When the child reaches the age of 14 and 18 years, respectively, or becomes emancipated,

Death of a guardian (trustee) or ward,

Return of a minor to parents,

Adopting a ward or placing him in an appropriate children's institution,

Removal of guardians (trustees), which is carried out in cases of improper performance of their duties. The consequence of this is the inability to continue to be an adoptive parent, guardian (trustee), or foster parent.

3.Adoptive family – a relatively new institution in family law – is a kind of Orphanage family type, which includes some features of the institution of adoption and guardianship (trusteeship). This form of raising children is common abroad. In Russia at the beginning of the 21st century there were about 1000 foster families.

The law does not establish a minimum number of children who can be placed in foster care. The maximum number of adopted children, including natural and adopted children, should not exceed eight people. To transfer a child over ten years old to a foster family, his consent is required.

In a relationship foster parents The same restrictions apply as for adoptive parents. Adoptive parents acquire the rights and responsibilities of a guardian (trustee) in relation to their adopted child. There are no alimony or inheritance legal relations between adoptive parents and adopted children. Adopted children retain the right to alimony received before placement in 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 agreement on the transfer of a child to be raised in a family, which is concluded between the guardianship and trusteeship authority and the adoptive parents. This agreement in legal essence is contract for paid services(Article 783 of the Civil Code of the Russian Federation). The general provisions on contract, unless this contradicts the specifics of the subject of the service contract.

The basis for concluding an agreement is an application from persons wishing to foster a child, which is submitted to the guardianship and trusteeship authority at the child’s place of residence. The application is accompanied by the conclusion of the guardianship and trusteeship authorities on the possibility of becoming adoptive parents, as well as relevant documents. The contract stipulates the responsibilities of the adoptive parents (raising the child, creating necessary conditions for their education, care for health, physical, mental, spiritual and moral development, ensuring the protection of the rights and interests of the child, etc.). The guardianship and trusteeship authority undertakes to monthly transfer funds for the child and other payments, as well as provide housing, furniture and other necessary things.

4. Family-type orphanage– a form of educational institution that is intermediate between a foster family and an orphanage (boarding school). Its activities are regulated by Decree of the Government of the Russian Federation of March 19, 2001 No. 195 “On a family-type orphanage”). A family-type orphanage is organized on the basis of a family. The family must consist of spouses whose marriage is registered. For organization orphanage family type requires the desire of both spouses to take care of at least 5 and no more than 10 children; if the family has natural or adopted children who have reached 10 years of age, then their consent is also necessary. The couple are the organizers of a family-type orphanage.

The total number of children in a family-type orphanage, including natural and adopted children, should not exceed 12 people.

The peculiarity of this form is that the family-type orphanage is legal entity in the form of an educational institution(non-profit organization), the founders of which are executive authorities of a constituent entity of the Russian Federation or local government bodies.

The relationship between the guardianship and trusteeship authority and the family-type orphanage is determined agreement, concluded between them, which unites a 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 raising children, working in children's social, educational and medical institutions, and who are adoptive parents or guardians (trustees).

Control questions:

1. Expand the content of the concept, subject, principles 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 recognizing a marriage as invalid.

5. Reveal the contents 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 alimony obligation and the basis for its occurrence.

8. Describe the forms of placement of children left without parental care.

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

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

19 IC RF, Federal Law"ABOUT state bank data on children left without parental care”, as well as the provisions of the Rules for the transfer of children for adoption and monitoring the conditions of their life and upbringing in the families of adoptive parents on the territory of the Russian Federation188 and some other regulatory legal acts. In addition, when studying issues related to adoption, one should take into account the explanations of the Plenum of the Supreme Court of the Russian Federation (Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 No. 8 “On the application of legislation by courts when considering cases of adoption of children”).

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

Indeed, adoption is carried out forever, whereas, for example, guardianship (trusteeship) terminates when the child acquires full civil capacity. The only exceptions are possible cases of cancellation of adoption.

During adoption, the rights and responsibilities of adopted children and adoptive parents are equal to the rights and responsibilities of children and parents. Thus, adoption is similar to first degree kinship. This feature of adoption is confirmed by the provisions on the secrecy of adoption (Article 139 of the Family Code). Unlike some other legal systems, domestic law considers adoption as a sacrament. As a rule, adopted children do not know about the lack of blood relationship with the adoptive parent, which brings kinship by origin and adoption closer together. In addition, the grounds for canceling adoption are in many ways similar to the grounds for depriving parents of parental rights. Like first-degree kinship, adoption entails significant legal consequences - the adoption has the right to inherit from the adoptive parents (Article 1147 of the Civil Code), the right to use the residential premises of the owner-adopter (Article 137 of the Family Code; Article 31 of the Housing Code), etc.

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

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

The choice of form of placement for a child depends on many circumstances. In accordance with Art. 20 of the UN Convention on the Rights of the Child, the state, when providing a replacement for the child with his family environment, must take into account “the desirability of continuity in the upbringing of the child and his ethnic origin, religious and cultural affiliation and native language.” A similar rule is enshrined in paragraph 1 of Art. 123 RF IC. Clause 2 of Art. 124 of the Code additionally indicates that upon adoption, a child must be provided with the opportunity for full physical, mental, spiritual and moral development. One of the components of mental and spiritual development is the possibility of related communication with brothers and sisters. The law generally prohibits the adoption of brothers and sisters by different persons. However, the court may deviate from this rule if such adoption is in the best interests of the children. The resolution of the Plenum of the Supreme Court of the Russian Federation dated April 20, 2006 No. 8 “On the application of legislation by courts when considering cases of adoption of children” explains that in cases where the adoptive parent does not ask for the brothers or sisters of the child being adopted to be transferred to him, adoption is permissible , if it meets the interests of the child (for example, children are not aware of their relationship, did not live and were not raised together, are in different child care institutions, cannot live and be raised together for health reasons).

The subjects of legal relations of adoption are adoptive parents and adoptees189. In relation to adoptive parents, the law makes many special requirements, but any minor children left without parental care can be adopted (Clause 1, Article 124 of the Family Code). However, it must be borne in mind that adoption is also possible for a child under the care of a parent. We are talking about the adoption of children by stepfathers or stepmothers, i.e. spouses of the child's parent. In this case, the relationship of raising someone else’s child is actually legitimized.

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

The state of a child’s health does not affect the exercise of his right to live and be raised in a family, so seriously ill children can also be adopted. Often, candidates for adoptive parents are denied adoption on the basis that the child has a serious illness. Such actions are contrary to the law.

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

Moreover, the legislator even mentions the preemptive right to adoption (clause 3 of Article 127 of the Family Code). Its subjects are the child’s relatives, and the condition for the implementation of this right is, of course, the observance of the interests of the child.

Requirements for the personality of a candidate adoptive parent: 1)

related to the adoptive parent having sufficient legal capacity. Cannot be adoptive parents: -

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

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

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

related to the adoptive parent having sufficient legal capacity. Cannot be adoptive parents: -

minors; -

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

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

related to the health status of the adoptive parent. Diseases such as tuberculosis (active and chronic) of all forms of localization in patients of groups I, II, V of dispensary registration, diseases internal organs, nervous system, musculoskeletal system in the stage of decompensation, malignant oncological diseases of all forms of localization, drug addiction, substance abuse, alcoholism, infectious diseases before removal from dispensary registration, mental illnesses, as well as all diseases and injuries leading to group I and II disability , excluding ability to work, are an unconditional basis for refusal of adoption190. It has been repeatedly noted in the legal literature that this list requires clarification; 4)

related to the personal (moral) qualities of a candidate for adoptive parents. It is prohibited to be adoptive parents to persons who, at the time of adoption, have a criminal record for an intentional crime against the life or health of citizens. In addition, unmarried persons cannot jointly adopt the same child. The law of the Russian Federation recognizes only the registered marriage of opposite-sex spouses. That's why various shapes Illegitimate cohabitation does not currently provide grounds for joint adoption of children. However, this does not mean that an unmarried woman or an unmarried man cannot be an adoptive parent at all. Such a person may act as the sole adoptive parent of the child; 5)

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

persons who, at the time of adoption, do not have income to support the adopted child living wage, established in the subject of the Russian Federation in whose territory the adoptive parents (adoptive parent) live191; -

persons living in residential premises that do not meet sanitary and technical rules and standards192.

At the same time, the Family Code also establishes exceptions to this rule: -

the living conditions and earnings of stepfathers and stepmothers who adopt stepsons or stepdaughters do not require compliance with these standards; -

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

6) a special requirement for the identity of the adoptive parent is the condition regarding the age difference between the adoptive parent and the adopted child.

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

Exceptions from it: -

there is no need to take into account the difference in age when adopting a child by a stepfather (stepmother), since the child lives with his parent and in fact already communicates with his stepfather or stepmother; -

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

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

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

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

IV Rules for maintaining a state data bank on children left without parental care and monitoring its formation and use. Registration is carried out on the basis of an application from a candidate for adoptive parents with the attachment of the documents listed in clause 20 of these Rules.

The adoption procedure includes the following stages: 1.

Submission by a person wishing to adopt a child of an application to the guardianship and trusteeship authority at his place of residence with a request to give an opinion on the possibility of becoming an adoptive parent. The application is accompanied by documents in accordance with the list established by clause 6 of the Rules for the transfer of children for adoption and monitoring the conditions of their life and upbringing in the families of adoptive parents on the territory of the Russian Federation. 2.

Examination by the guardianship and trusteeship body of the applicant’s living conditions and preparation, within 15 working days from the date of acceptance of the application, of a conclusion on the applicant’s ability to be an adoptive parent. If the issuance of such a conclusion to the applicant is refused, the guardianship and trusteeship authority is obliged to inform him about this within five days.

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

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

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

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

Visiting a child and personal communication with him (Clause 2 of Article 125 of the Family Code). In accordance with clause 12 of the Rules for transferring children for adoption and monitoring the conditions of their life and upbringing in adoptive families on the territory of the Russian Federation, the candidate for adoptive parents is obliged to personally get to know the child and establish contact with him, familiarize himself with the documents of the adopted child and confirm in writing the fact of familiarization with the medical report on the child’s health condition193. If establishing contact with the child is impossible (due to his age or health condition), this nevertheless does not constitute an obstacle to adoption. 6.

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

Adoption proceedings are not limited to the court reviewing the documents submitted by the applicant. In accordance with paragraph 2 of Art. 272 of the Code of Civil Procedure of the Russian Federation, the guardianship and trusteeship authority provides additional information to the court. Moreover, participation in the court hearing by representatives of this body (as well as the candidate for adoptive parents, the prosecutor, and a child over 14 years of age) is mandatory. The court may consider it necessary to involve the child’s parents, other interested parties, as well as the child himself, aged 10 to 14 years, in this case. These participants in the trial may also provide the court with information that impedes the adoption. 7.

State registration of adoption on the basis of a court decision that has entered into legal force in the civil registry office. The procedure for state registration of adoption is determined by Chapter. 5 of the Federal Law “On Acts of Civil Status”.

The adoption procedure is also associated with the need (or advisability) of obtaining consent to adoption from certain persons: -

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

the child's parents; -

guardians (trustees), foster parents, heads of institutions where children without parental care are located; -

the adoptive parent's spouse.

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

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

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

Adoption as a factual composition also has a legal termination value (clause 2 of Article 137 of the Family Code).

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

The legal consequences of adoption are, first of all, a set of rights and responsibilities that coincide with parental ones (Chapter 12 of the Family Code). The most important legal consequence of adoption is the opportunity to raise a child and personal communication with him. In accordance with clause 20 of the Rules for transferring children for adoption and monitoring the conditions of their life and upbringing in adoptive families on the territory of the Russian Federation, adoptive parents are obliged to personally pick up the child at his place of residence (location) upon presentation of a passport or other identification document the identity of the adoptive parent, and court decisions.

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

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

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

changing the child’s first name, patronymic and last name (Article 134 of the Family Code); -

Family forms of living arrangements for orphans include: adoption, guardianship and guardianship.

Childhood is a period when the fundamental qualities of a person are laid, ensuring psychological stability, moral orientation, vitality and determination. These spiritual qualities of the individual do not develop spontaneously, but are formed in conditions of expressed parental love, when the family creates in the child the need to be devoted, the ability to empathize and enjoy other people, to bear responsibility for oneself and others, and the desire to learn for oneself.

Children left without parental care are subject to transfer to a family for upbringing (for adoption), and in the absence of such an opportunity, to the appropriate institutions for orphans and children left without parental care.

The legislation, therefore, gives priority to family forms of placing children as the ones that best meet the needs of the child and create optimal conditions for his upbringing and development.

Of all the forms provided by law family education For children left without parental care, adoption is a priority. Its essence lies in the fact that adopted children are actually equal to their own. The legislation on adoption establishes that it is allowed in relation to minors and only in their interests, taking into account the capabilities of the adoptive parent to ensure the child’s full physical, mental, spiritual and moral development.

In Novosibirsk, more and more attention is being paid to the issues of family life of orphans and children left without parental care.

Last year alone, in the Leninsky district, about 30 children were transferred to foster families, 88 children were adopted. Experts believe that today we can already talk about positive changes. According to the results rehabilitation work, in Novosibirsk over the past year alone, 160 children were returned to their families from social shelters, 33 children were taken into care, 240 were adopted, 59 new foster families were created.

Special and most large group are children under guardianship. For many years, guardianship remained the only (besides adoption) open and, at the regulatory and legal level, successful form of placing children in families: they remain with close people (about 90% of guardians are close relatives of the child), in a familiar environment, students do not change schools.

As for adults, the decision itself to take a child into custody in most cases is conscious, heartfelt, and dictated by a sense of compassion and duty. For example, in the event of the death, serious illness or incapacity of the child’s mother (in the actual absence of the father), her sister or friend establishes guardianship over him, grandmother, aunt or other relatives take guardianship over the child whose parents are deprived of parental rights.

Guardianship (trusteeship) is a form of placement of orphans and children left without parental care, for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests; guardianship is established over children under the age of 14; guardianship - over children aged 14 to 18 years.

Requirements for guardians (trustees):

1. The person has reached the age of majority, i.e. he has reached 18 years of age.
2. Full civil capacity of a person, i.e. in this case, the absence of effective court decisions declaring a citizen incompetent or limiting legal capacity.
3. The absence of a court decision on the deprivation of parental rights that has entered into legal force in relation to the candidate (regardless of the time of its adoption).

Citizens are not appointed as guardians or trustees:

1. Deprived of parental rights.
2. Patients with chronic alcoholism or drug addiction.
3. Those suspended from performing the duties of guardians (trustees).
4. Limited parental rights.
5. Former adoptive parents, if the adoption was canceled due to their fault.
6. Those who, due to health reasons, are unable to carry out the responsibilities of raising a child.

When choosing a guardian or trustee, his personal qualities, his ability to perform these duties, and the relationship existing between him and the person in need of guardianship or trusteeship must be taken into account. To comply with the last rule, whenever possible, they try to take into account the wishes of the ward himself. The consent of the ward with the candidacy of the trustee is also mandatory when establishing patronage. The personal qualities of the guardian play a special role when establishing guardianship over the mentally ill. Living together with a mentally ill person creates many everyday problems, is troublesome in everyday life and is not always completely safe. In addition, you need known skill in handling a sick person, experience in using psychotropic medications and knowledge of the symptoms of the disease that require timely medical intervention. Naturally, the patient’s closest relatives, who have become accustomed to him during their time together, cope with the problems of care more easily and better. Moreover, they also have the personal sympathies of the ward on their side, which greatly facilitates caring for him. In cases where there are no such close relatives among possible candidates for guardianship, it is preferable to choose a guardian from among socially positive people who have certain medical experience and have expressed a desire to take on such responsibilities.

Guardians are representatives of the wards and make all necessary transactions on their behalf and in their interests. Trustees give consent to carry out those transactions that citizens under guardianship do not have the right to carry out independently. Responsibilities for guardianship (trusteeship) are performed free of charge. For the maintenance of the child, the guardian (trustee) is paid monthly money in the manner and amount established by the Government of the Russian Federation for food, the purchase of clothing, shoes and soft equipment, household items, personal hygiene, games, toys, books and benefits established by the Government. In this case, the guardian is obliged to provide the guardianship authorities with a report on the funds spent. In some cases of loss of parental care (illness, long-term absence), a guardian can be appointed in parallel with them, come to the family, and take the child with him. The guardian is obliged to raise the child and take care of his health. He has the right to demand in court the return of the child from any persons, including close relatives, if they are holding him illegally. However, he does not have the right to prevent the child from communicating with his family and friends. The law provides for the protection of children from possible abuse by guardians, in particular, it establishes restrictions on their powers and independence in disposing of the property of the ward. Typically, close relatives of the ward become guardians.

Guardians and trustees of minor citizens are required to live together with their wards. Separate residence of a guardian with a ward who has reached 16 years of age is permitted with the permission of the guardianship and trusteeship authority.

The legal relationship between the child and the guardian (trustee) terminates when the ward reaches the age of majority.

A child under guardianship (trusteeship) will retain the right to receive alimony from his parents, and in the event of their death, a survivor's pension. Also, the child retains his legal status (orphan or child without parental care), i.e. he retains the right to all additional rights and benefits provided by the state to persons with this legal status. (Federal Law No. 159-FZ of December 21, 1996 “On additional guarantees for the social protection of orphans and children without parental care”).

Guardians and trustees can be not only citizens, but also legal entities: educational and medical institutions, social protection institutions, some other similar institutions, as well as the guardianship and trusteeship authorities themselves.

The state must constantly monitor the living conditions of the ward, the performance of the guardian’s duties, and provide assistance to guardians.

Features of guardianship (trusteeship):

1. Guardianship is established by a decision of the head of local government. It is processed faster than adoption, because... no trial required.
2. Funds are paid for the child under guardianship, and the guardianship authorities assist the guardian in organizing education, recreation and treatment for the child under guardianship.
3. Less stringent requirements for a candidate for guardianship in terms of income and living conditions.
4. The child has the status of being raised and at an older age may feel that he does not fully belong to the family of the guardian.
5. There is no secret in placing a child under guardianship and contacts with the child’s blood relatives are possible.
6. Constant control and reporting to the guardianship authorities for education and expenditure of funds

Adoption of a child is a state act, in connection with which the same rights and obligations arise between adopted children and their offspring, as well as adoptive parents and their relatives, that by law exist between parents and children. Adoption is the transfer of rights and responsibilities from the biological parents (parent) of the child to the adoptive parents (adoptive parent), in which the child is legally equal to the biological children of the adoptive parent. In this case, naturally, all rights and obligations of the child’s natural (biological) parents are lost. Adoption is the most preferable form of placing children left without parental care in a family. Adoptive parents, voluntarily accepting the full responsibilities assigned by law to parents, are equal to them in all respects and are endowed with the same rights.

The basic principle on which the entire institution of adoption is built is the best provision of protection of the interests of the child during adoption; his consent to enter the family of the adoptive parent becomes of paramount importance. The interests of the child should be the determining criterion when assessing persons wishing to become adoptive parents, when making a decision on adoption, or when canceling adoption. For example, adoption of brothers and sisters by different persons is not allowed if they were previously raised together. Adoption is carried out by the court upon the application of the person(s) wishing to adopt the child, with the obligatory participation of the guardianship and trusteeship authorities. Adoptive parents can be adults with legal capacity of both sexes, except for persons who, according to their consent, do not have the right to adoption (deprived of parental rights, removed from the duties of a guardian for health reasons, etc.). The age difference between the adoptive parent and the adopted child must be at least 16 years. To adopt a child over 10 years of age, his consent is required. Practice shows that, as a rule, children under the age of 12 are adopted, while older children remain in social institutions until graduation. To place a child for adoption, it is necessary to obtain the consent of his parents. If the child’s parents have not reached 16 years of age at the time of giving consent, in addition to their consent, it is also necessary to obtain the consent of their parents, guardians or trustees, and in the absence of these persons, the consent of the guardianship and trusteeship authority.

Features of adoption:

1. Allows the child to feel like a full member of the family.
2. All relations and rights of inheritance are preserved, including upon leaving a minor age.
3. The ability to assign the child the adoptive parent’s surname, change the first name, patronymic and, in some cases, date of birth.
4. It takes longer to register than guardianship, because adoption is approved by a civil court.
5. The state does not provide any assistance after adoption, with the exception of providing postnatal leave and payments in connection with the birth of a child in the event that an infant under 3 months is adopted.
6. Guardianship authorities exercise annual control over the adoptive family for at least three years after adoption.
7. The most stringent requirements for candidates for adoptive parents, their financial situation, earnings, housing in comparison with other forms of placement.
8. Not every child deprived of parental care can be adopted.

If the parents refuse to consent, adoption is impossible. Giving consent to adoption is one of the important personal non-property rights of parents, and its violation leads to a significant violation of their rights, since the adoption of a child leads to the complete cessation of the legal relationship between him and the parents.

In some cases, adoption may be carried out without parental consent. As a rule, this happens when parents largely lose contact with the child, when parents do not live with the child for six months without good reason and evade his upbringing and maintenance.

A child protection specialist must visit the family of candidates for adoptive parents, draw up an examination of their living conditions and give an opinion on the possibility of them adopting a child.

Persons who have received a determination that they are appropriate candidates for adoptive parents have the right to begin selecting a child for adoption. The guardianship and trusteeship authority issues them a referral to select a child from the appropriate child care institution.

Official statistics show that the majority of adoptions of children carried out in Russia (as a rule, from children's institutions for children left without parental care) are successful. Children find a family, and adults find the meaning of life and a sense of necessity. About 30 thousand children are adopted in Russia every year.

At the same time, about 18 thousand children are adopted by stepfathers, stepmothers and 12 thousand by strangers from maternity wards of hospitals, maternity hospitals, orphanages and other children's institutions that house children left without parental care.

One of the forms of placement of children left without parental care (if it is impossible to place them in a family) is their transfer to institutions for orphans and children left without parental care of all types (educational institutions, medical institutions, social protection institutions and other similar institutions).

According to Art. 1 of the Federal Law "On additional guarantees for social support orphans and children left without parental care", institutions for orphans and children left without parental care are educational institutions where orphans and children left without parental care are kept (trained and (or) raised); institutions social assistance to the population (orphanages for disabled children with mental retardation and physical disabilities, social rehabilitation centers for children without parental care, social shelters); healthcare institutions (orphanages) and other institutions,

created in accordance with the procedure established by law.

Chapter 22 was introduced into the RF IC by Federal Law No. 49-FZ of April 24, 2008, adopted in connection with the Guardianship Law. In this 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 basic provisions related to the procedure for children being under the supervision of such organizations are defined. However, this form of placement of children is considered 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 a child to a family, his placement in an organization must be terminated. Heads of educational organizations, medical organizations, organizations providing social services, or similar organizations in which there are children left without parental care, are required to inform about this to the guardianship and trusteeship authority at the location of this organization. Commitment by the head of an institution in which there are children left without parental care, actions aimed at sheltering a minor from being transferred to a family for upbringing, entails the imposition of an administrative fine in the amount of 2 thousand to 3 thousand rubles (Article 5.36 of the Administrative Code).

The specialized organizations for orphans include:

Educational organizations; - medical organizations; - organizations providing social services; - other non-profit organizations, provided that the activities for placing children do not contradict the purposes for which they were created.

It is in the interests of a child left without parental care to attend a regular educational institution. The full implementation of the educational process within the organization for children left without parental care creates a closed atmosphere in the group of children and does not contribute to their normal socialization.

In accordance with the current Decree of the Government of the Russian Federation of November 27, 2000 N 89668, organizations providing social services and accepting children without parental care are social rehabilitation centers for minors, social shelters for children, assistance centers for children without parental care .

At the same time, Article 155.1. The RF IC allows the creation of not only state, but also non-state specialized organizations for orphans.

The conditions for the stay of children in all types of organizations for children left without parental care must be determined by the relevant resolution of the Government of the Russian Federation.

Guardians (trustees) are not appointed to children who are under full state care in the relevant educational institutions, medical institutions, social welfare institutions and other similar institutions (hereinafter referred to as educational institutions). Complete state care means that the protection of the rights and legitimate interests of minor children, their material support, upbringing, and education is undertaken by the state represented by the relevant institution. In such cases, the responsibilities of guardians (trustees) are assigned to the specified institutions.

Control over the conditions of detention, upbringing and education of children in educational institutions is carried out by guardianship and trusteeship authorities.

The procedure for such control is determined by the Rules for the implementation by guardianship and trusteeship authorities of the inspection of the living conditions of minor wards, compliance by guardians or trustees with the rights and legitimate interests of minor wards, 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 these Rules to monitoring the stay of minor children 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 (trustee) of the child.

Article 155.2 of the RF IC for the first time at the legislative level established the so-called guest regime for the 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 short-term stay of a child in a family in order to ensure his upbringing and harmonious development.

The basis for a child’s stay in the family is an order from the administration of an organization for children left without parental care. The administration has the right to contact the guardianship and trusteeship authority, which maintains a data bank on candidates for guardians (trustees), with a request to provide information about citizens wishing to temporarily accept a child into the family. Thus, the guest regime can become a preliminary stage for subsequent adoption, guardianship or trusteeship. The child’s acquaintance with the host family at this stage can develop into a longer relationship.

1. The placement of children left without parental care in organizations for orphans and children left without parental care means the placement of such children under supervision in educational organizations, medical organizations, and organizations providing social services.

If on the territory of a subject of the Russian Federation where a child left without parental care is identified, there is no organization for orphans and children left without parental care, in which he can be placed in order to provide him with the necessary conditions of detention, upbringing and education Based on his needs, this child is transferred to the guardianship and trusteeship authorities of the constituent entity of the Russian Federation in whose territory such an organization exists.

The list of activities carried out, services provided by organizations for orphans and children left without parental care, the procedure for carrying out activities by these organizations, the procedure for placing children left without parental care (including the procedure and conditions for interaction between the constituent entities of the Russian Federation and their authorized executive authorities under making a decision on the placement of a child left without parental care), the procedure for examining such children, the basis for making decisions on the placement of children left without parental care, depending on the types of activities carried out, services provided by organizations for orphans and children left without parental care , the requirements for the conditions of stay in these organizations are determined by the Government of the Russian Federation.

2. Temporary stay of a child in an organization for orphans and children left without parental care for the purpose of receiving medical, social, educational or other services, or for the purpose of ensuring temporary residence of the child during the period when parents, adoptive parents or guardians or trustees for good reasons cannot fulfill their duties in relation to the child, does not terminate the rights and obligations of parents, adoptive parents or guardians or trustees in relation to this child.

3. Guardianship and trusteeship authorities exercise control over the conditions of detention, upbringing and education of children in organizations for orphans and children left without parental care, and also take measures to place such children in families.

4. Upon completion of the child’s stay in educational organization For orphans and children left without parental care, until they reach the age of eighteen, the duties of a guardian or trustee of this child are assigned to the guardianship and trusteeship authorities.

Commentary to Art. 155.1 RF IC

1. Chapter 22 was introduced into 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 children being under the supervision of such organizations are defined. As already noted, this form of placement of children is considered the least favorable for the child.

2. The specialized organizations for orphans include:

— educational organizations;

— medical organizations;

— organizations providing social services;

- other non-profit organizations, provided that the activities for placing children do not contradict the purposes 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 cannot contain it, since in the overwhelming majority of cases, the interests of a child left without parental care are met by attending a regular educational institution. The full implementation of the educational process within the organization for children left without parental care creates a closed atmosphere in the group of children and does not contribute to their normal socialization.

In accordance with the current Decree 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 and social shelters for children, assistance centers for children left without parental care.

At the same time, the commented article allows for the creation of not only state, but also non-state specialized organizations for orphans. Let us note that, for example, religious organizations 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 religious associations") contradict the goals of efforts to accommodate 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 placing children without parental care.

The organizational and legal forms of legal entities belonging to organizations for children without parental care are determined by civil law. These can only be non-profit legal entities.

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 for the purpose of ensuring temporary residence of the child during the period when parents, adoptive parents or guardians or trustees for good 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 the above cases legal representatives the child retains all their rights. For example, a child under guardianship may be placed by the guardian in a boarding school to study at short term. This may be due to the need for the guardian to leave or for 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 16-year-old) graduate of an orphanage falls under the guardianship of the institution of secondary vocational education where he enters to study. However, these institutions are not and have never been classified as specialized organizations for orphans. Therefore, in paragraph 4 of the commented article, the legislator reminds that upon completion of the child’s stay in an educational organization for orphans and children left without parental care, until he reaches the age of 18, the duties of a guardian or trustee of this child are assigned to the guardianship and trusteeship authorities. Thus, the guardianship and trusteeship authority is obliged to again begin the search for a guardian for such a child (Articles 121 - 123 of the Family Code).

5. The activities of organizations for children left without parental care cannot be uncontrolled. Since they are entrusted with serious responsibilities for protecting the life and health of the children staying in them, for providing them with food, medical care, care, to ensure that children receive education, guardianship and trusteeship authorities are obliged to monitor the conditions of detention, upbringing and education of children.

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Commentary to Art. 155.1 RF IC