Legal norms: what to do if children are left without parents or guardianship. Who refers to children left without parental care

Orphanhood in Russia
	Worked on the theme of the issue Svetlana BIRYUKOVA Maria VARLAMOV Oksana SINYAVSKAYA

Without parental care...

Primary prevention of orphanhood is associated with early intervention measures and keeping the child in a family environment without procedures for removing children from the birth family.

The Family Code of the Russian Federation assigns the function of identifying children left without parental care to the guardianship and guardianship authorities. At the same time, officials of educational, medical and other institutions are legally obliged to report information about such children to the guardianship and guardianship authorities at the actual location of the children (Article 122). According to the law, children left without parental care , children are recognized in situations where:

• parents are deprived of parental rights;
• parents are limited in parental rights;
• parents are declared incompetent;
• parents are so sick that they cannot exercise parental care;
• parents are absent for a long time (more than 6 months);
• parents shy away from raising children;
• parents avoid protecting the rights and interests of children:
  • parents refuse to take their children from any institution (refuseniks);
  • parents do not withdraw their children from institutions without formally abandoning them;
  • a single mother left the child in full state care, does not maintain contact (does not take part in his upbringing) with the child;
  • parents by action or inaction endanger the life and health of the child;
• parents interfere with the normal upbringing or development of children;
• parental care is absent for any other reason:
  • including as a result of the detention of parents or the imposition by a court sentence of a sentence related to deprivation or restriction of liberty.

Thus, the list of grounds for recognizing a child left without parental care is much wider than just the restriction or deprivation of parental rights. Guardianship and guardianship authorities are obliged to organize permanent placement of a child left without parental care within a month from the moment of discovery of the fact of abandonment, and in the absence of such an opportunity, send data about the child to the regional data bank on children. The executive authority of the subject of the Russian Federation, within a month from the date of receipt of information about the child, arranges for his placement in the family of citizens living in the territory of this subject, and in the absence of such an opportunity sends the specified information to the federal data bank on children. From January 1, 2015, information about children left without parental care will be transferred to the regional and federal data banks simultaneously - within three days the information available for primary registration and within a month - complete documented information about the child.

Initiate an application for termination of parental rights may one of the parents, guardian, custodian, adoptive parents, guardianship and guardianship authorities, institutions for orphans, children's homes and other institutions that are responsible for protecting the rights of minors, in cases where the parents (Article 69 of the UK):

• evade the performance of their duties, including in case of malicious evasion from paying alimony;
• refuse without good reason to take their child from a maternity hospital (department) or from another medical institution, educational institution, institution of social protection of the population or from similar organizations;
• abuse their parental rights;
• mistreat children, including exercise physical or mental violence against them, encroach on their sexual inviolability;
• are patients with chronic alcoholism or drug addiction;
• have committed an intentional crime against the life or health of their children or against the life or health of their spouse.

At the same time, according to the decision of the Supreme Court on the application of legislation by the courts in resolving disputes related to the upbringing of children:

• evasion of parents from fulfilling their duties of raising children can be expressed in a lack of concern for their moral and physical development, education, and preparation for socially useful work;
• abuse of parental rights should be understood as the use of these rights to the detriment of the interests of children, for example, by creating obstacles in learning, inducing begging, theft, prostitution, drinking alcohol or drugs, etc.;
• child abuse can be manifested not only in the physical or mental violence against them by parents or in an attempt on their sexual integrity, but also in the use of unacceptable methods of education (in rude, neglectful, degrading treatment of children, abuse or exploitation of children) ;
• chronic alcoholism or drug addiction of parents must be confirmed by an appropriate medical certificate. Deprivation of parental rights on this ground can be made regardless of the recognition of the defendant as having limited legal capacity.

The fact of deprivation of parental rights, as well as their restrictions, does not cancel the parents' obligations to support the child - the court decision must contain information about alimony (parents retain the responsibility for supporting children) and about who the child is transferred to raise: the other parent, the guardianship and guardianship authority or a guardian (custodian), if he has already been appointed in accordance with the established procedure. At the same time, the child retains the right to communicate with parents and other relatives, if this does not contradict his interests. Adoption of a child whose parents are deprived of parental rights is possible only 6 months after the court decision.

Restriction of parental rights is initiated by close relatives of the child, bodies for the protection of the rights of minor children, preschool, general education and other institutions in cases where leaving the child with parents (one of them) is dangerous for the child due to circumstances beyond the control of the parents (one of them) (mental disorder or other chronic disease, a combination of difficult circumstances, etc.). Restriction of parental rights is also allowed in cases where leaving a child with parents (one of them) due to their behavior is dangerous for the child, but sufficient grounds have not been established for depriving the parents (one of them) of parental rights. If the parents (one of them) do not change their behavior, the guardianship and guardianship authority after 6 months (or earlier, if the interests of the child so require) after the court makes a decision to restrict parental rights, is obliged to file a claim for deprivation of parental rights.

Under the law, both restriction and deprivation of parental rights are carried out only by a court decision, i.e. the presence of a bailiff is necessary to remove the child from the family. In addition, parents have the right to demand the return of the child from any person who retains him not on the basis of the law or on the basis of a court decision. In the event of a dispute, parents have the right to go to court to protect their rights.

In the future, the court may decide to restore parental rights (this requires the cancellation of adoption and termination of guardianship, if any) and the removal of restrictions, if the reasons that led to the restriction / deprivation of parental rights have been eliminated. The case for the restoration of parental rights is initiated at the request of the parents. At the same time, the court may consider the request for the return of the child.

If the body of guardianship and guardianship sees a threat to the life and health of the child, then it has the right to immediately take the child away from the parents (one of them) or from other persons in whose care he is. To do this, it is necessary to sign the relevant act, immediately notify the prosecutor's office, provide temporary placement of the child (including under temporary guardianship) and, within 7 days, apply to the court with a lawsuit to deprive the parents of parental rights or to limit their parental rights.

At the same time, in real practice, children often end up in social institutions (as a rule, hospitals) through employees of the internal affairs bodies, who register them as street children and only then inform the guardianship authorities (this does not require signing an act and calling the guardianship authorities to the place and makes it possible not to start a case on the deprivation or restriction of rights, the initiation of which is mandatory subject to the weaning procedure). This, in particular, is written a lot on Internet forums - for example, there are such comments: “ We do not withdraw children, but only place them in a hospital (there is no alternative) due to neglect, who necessarily find themselves in a difficult life situation that is dangerous to life and health. At the same time, we write a lot of papers. However, tomorrow the hospital will return this child to the parent if he comes, and everything will be all over again ... Seizure under Article 77 [of the Family Code of the Russian Federation - Ed.] is a rarity, not because there are no facts, but because there is no guardianship, it is difficult to raise in the evening after 5 pm. We have been trying to change something for many years, but it does not work, unfortunately, there is no light yet» .

Despite a certain preference given by Russian courts to the deprivation of parental rights, since 2007 there has been a trend towards a reduction in the number of parents deprived of parental rights (from 76.3 to 52.2 thousand by 2012), and an increase in the number of cases of restriction of parental rights (from 5.8 to 8.8 thousand by 2012, see Fig. 5 below), which may indicate a positive trend in the perception by the court and guardianship authorities of the importance of primary prevention issues.

At the same time, an integral system of primary prevention of orphanhood, aimed at early detection of family problems, has not yet been created in Russia. One of the main results of primary prevention measures should be the expansion of the mechanism parental rights restrictions. In the Russian system of prevention, as noted above, there is still an unstable balance between repressive measures and methods of social work. On the one hand, the activities of a number of institutions are still based on punitive measures of work with parents and children - the threat of deprivation of parental rights, job posting, administrative fines, etc. On the other hand, the reform of the social system has created new institutions (temporary shelters, crisis centers, etc.), whose main function is social assistance and support for families in difficult life situations. The implemented social policy measures do not form a unified system, are not always successful and are often insufficient, as evidenced by the still high level of secondary social orphanhood

Article 121. Protection of the rights and interests of children left without parental care

1. Protection of the rights and interests of children in cases of death of parents, deprivation of their parental rights, restriction of their parental rights, recognition of parents as incapacitated, illness of parents, prolonged absence of parents, evasion of parents from raising children or from protecting their rights and interests, including in case of refusal of parents to take their children from educational institutions, medical institutions, institutions of social protection of the population and other similar institutions, as well as in other cases of lack of parental care, it is assigned to the guardianship and guardianship authorities.

The guardianship and guardianship authorities identify children left without parental care, keep records of such children and, based on the specific circumstances of the loss of parental care, select forms of placement for children left without parental care (Article 123 of this Code), and also exercise subsequent control over the conditions of their maintenance, upbringing and education.

2. Bodies of guardianship and guardianship are local self-government bodies. Issues of organization and activities of local governments in the implementation of guardianship and guardianship of children left without parental care are determined by these bodies on the basis of the charters of municipalities in accordance with the laws of the constituent entities of the Russian Federation, this Code, the Civil Code of the Russian Federation.

Article 122. Identification and registration of children left without parental care

1. Officials of institutions (preschool educational institutions, general educational institutions, medical institutions and other institutions) and other citizens who have information about children specified in paragraph 1 of Article 121 of this Code are obliged to report this to the guardianship and guardianship authorities at the place of actual location children.

The body of guardianship and guardianship within three days from the date of receipt of such information is obliged to conduct an examination of the living conditions of the child and, if it is established that there is no care of his parents or his relatives, to ensure the protection of the rights and interests of the child until the issue of his placement is resolved.

2. The heads of educational institutions, medical institutions, institutions of social protection of the population and other similar institutions in which there are children left without parental care, are obliged, within seven days from the date when they became aware that the child can be transferred to the upbringing of the family, report this to the guardianship and guardianship authority at the location of this institution.

3. The body of guardianship and guardianship, within a month from the date of receipt of the information specified in paragraphs 1 and 2 of this article, ensures the placement of the child (Article 123 of this Code) and, if it is impossible to transfer the child for upbringing to a family, sends information about such a child after the expiration of the specified period to the relevant executive authority of the constituent entity of the Russian Federation.

The executive authority of the subject of the Russian Federation, within a month from the date of receipt of information about the child, organizes his placement in the family of citizens living on the territory of this subject of the Russian Federation, and in the absence of such an opportunity, sends the specified information to the federal executive authority determined by the Government of the Russian Federation, for recording in the state data bank about children left without parental care, and assisting in the subsequent placement of a child for education in a family of citizens of the Russian Federation permanently residing on the territory of the Russian Federation.

The procedure for the formation and use of the state data bank on children left without parental care is determined by federal law.

(Clause as amended by Federal Law No. 94-FZ of June 27, 1998, put into effect on July 1, 1998)

4. For failure to fulfill the obligations provided for in paragraphs 2 and 3 of this article, for providing knowingly false information, as well as for other actions aimed at hiding a child from being transferred to a family, the heads of institutions and officials specified in paragraphs 2 and 3 of this article bodies are held accountable in the manner prescribed by law (clause as amended by Federal Law No. 94-FZ of June 27, 1998).

Article 123. Placement of children left without parental care

1. Children left without parental care are subject to be transferred for upbringing to a family (to (adoption), under guardianship (guardianship) or to a foster family), and in the absence of such an opportunity, to institutions for orphans or children left without parental care , of all types (educational institutions, including family-type orphanages, medical institutions, social welfare institutions and other similar institutions) (the paragraph was supplemented from January 6, 2000 by Federal Law of January 2, 2000 N 32-FZ).

Other forms of placement of children left without parental care may be provided for by the laws of the constituent entities of the Russian Federation.

When placing a child, his ethnic origin, belonging to a particular religion and culture, his native language, the possibility of ensuring continuity in upbringing and education should be taken into account.

2. Until the placement of children left without parental care for upbringing in a family or in institutions specified in paragraph 1 of this article, the duties of a guardian (custodian) of children are temporarily assigned to the guardianship and guardianship authorities.

Comment on the article "Family Code.
Chapter 18

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According to data from the reporting form 103-RIK of the Federal State Statistical Observation "Information on the identification and placement of children and adolescents left without parental care".

"The activities of legal entities and individuals other than guardianship and guardianship authorities to identify and arrange for children left without parental care are not allowed."

The activities of legal entities and individuals other than guardianship and guardianship authorities to identify and arrange for children left without parental care are not allowed.

In the absence of parents, in case 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 guardianship body in the manner prescribed by Chapter 18 of this Code.

Article 155.1. Placement of children left without parental care in an organization for orphans and children left without parental care

Commentary on Article 155.1

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

Moreover, in accordance with the provisions of Art. 122 of the RF IC, at the first opportunity to transfer the child to the family, his placement in the organization should be terminated. The heads of educational organizations, medical organizations, organizations providing social services, or similar organizations in which there are children left without parental care, must inform the about this to the body of guardianship and guardianship at the location of this organization. The commission 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 Code of Administrative Offenses).

2. The number of specialized organizations for orphans includes:

educational organizations;

Medical organizations;

Organizations providing social services;

Other non-profit organizations, provided that the activity of placing children does not contradict the goals for which they were created.

It is necessary to dispel the misconception that specialized organizations for children left without parental care can only be educational. The Family Code of the Russian Federation does not contain such a rule, and cannot contain it, since in the vast majority of cases the interests of a child left without parental care are met by attending an ordinary educational institution. The full implementation of the educational process within the organization for children left without parental care creates a closed atmosphere in the team of children and does not contribute to their normal socialization.

In accordance with the current 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 receiving children left without parental care are social rehabilitation centers for minors, social shelters for children, centers for helping children left without parental care.

At the same time, the commented article allows the creation of not only state, but also non-state specialized organizations for orphans. Note that, for example, religious organizations 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 the activities for the placement of children left without parental care. Therefore, religious organizations have the right to establish separate legal entities (private institutions - Article 120 of the Civil Code), which may be entrusted with the functions of arranging children left without parental care.

The organizational and legal forms of legal entities belonging to organizations for children left without parental care are determined by civil law. It can be exclusively non-commercial legal entities.

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

3. The commented article distinguishes 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 providing temporary residence for the child during the period when parents, adoptive parents or guardians or trustees, for good reasons, cannot perform their duties in relation to the child, is not a device of the child in the sense of Ch. 22 RF IC. In these cases, the legal representatives of the child retain all their rights. For example, a child under guardianship may be placed by the guardian in a boarding school for short-term education. This may be due to the need to leave the guardian or other good reasons. In this case, the guardian does not lose his rights.

4. For the first time, the commented article clearly defined the status of the graduate of the 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 in which he enters to study. However, these institutions are not and never were specialized organizations for orphans. Therefore, in paragraph 4 of the commented article, the legislator recalls that upon completion of a 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 guardianship authorities. Thus, the body of guardianship and guardianship is obliged to re-start the search for a guardian for such a child (Articles 121 - 123 of the UK).

5. Activities of organizations for children left without parental care cannot be uncontrolled. Since they have serious obligations to protect the life and health of children staying in them, to provide them with food, medical care, care, to ensure that children receive education, guardianship and guardianship authorities are obliged to monitor the conditions of maintenance, upbringing and education of children.

The procedure for such control is determined by the Rules for the implementation by guardianship and guardianship bodies of checking the living conditions of minor wards, the observance by guardians or trustees of 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 exercising their rights and fulfilling their duties. The application of these Rules to the exercise of control over 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 child's guardian (custodian).

Article 155.2. Activities of organizations for orphans and children left without parental care for the upbringing, education of children, protection and representation of their rights and legitimate interests

Commentary on Article 155.2

1. The commented article determines the moment when the authority of the organization for children left without parental care arises in relation to the child transferred to it. This is the moment when the body of guardianship and guardianship of the act on the placement of children in the specified organization. This act must clearly and unambiguously indicate that the child is placed under the supervision of such an organization and that it is obliged, in accordance with the commented article, to fulfill the obligations of maintaining, raising and educating children, as well as protecting their rights and legitimate interests.

In the presence of such an act, it is possible to distinguish between cases of temporary transfer of a child, for example, to a social shelter for the purpose of temporary residence of a minor who finds himself in a difficult life situation, and cases of placement of a child in such an organization. When a child is temporarily transferred to a social shelter, the rights and obligations of legal representation in relation to the child do not arise.

2. An organization for children left without parental care is not a guardian (trustee) of children in the true sense of the word, since, in accordance with the Guardianship Law, only natural persons (citizens) can be guardians and trustees. At the same time, organizations for orphans and children left without parental care, in which children are placed under supervision, are subject to the provisions of the legislation on guardianship and guardianship relating to the rights, duties and responsibilities of guardians and trustees (see commentary to Article 148.1 SC).

In addition, on the basis of Art. 1 of the Law on Guardianship, the provisions relating to the rights, duties and responsibilities of guardians and trustees apply to organizations in which incapacitated or partially capable citizens are placed under supervision, including organizations for orphans and children left without parental care, unless otherwise provided by federal law or contract.

3. The commented article for the first time at the legislative level fixed 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 a short stay of a child in a family in order to ensure his upbringing and harmonious development.

Conditions for transferring a child to a family within the framework of the guest mode:

Such transfer is in the best interests of the child. In order to establish whether staying in the family is not contrary to the interests of the child, it is necessary first of all to find out his opinion (Article 57 of the UK);

Staying in a family is aimed at ensuring the upbringing and harmonious development of the child (introduction to the culture of family communication, acquaintance with the life of families, organizing leisure activities, etc.);

The stay of the child in the family will not create a threat of harm to the physical and (or) mental health of the child, his moral development or any other threat to his legitimate interests;

The child's stay will be short. As a general rule, the transfer of a child to a family is allowed for the period of holidays, weekends or non-working holidays, etc., but for a period not exceeding one month. In the presence of exceptional circumstances, the term for the temporary transfer of a child to a family of citizens may be extended with the consent of the guardianship and guardianship authority. At the same time, the continuous period of temporary stay of the child in the family cannot exceed three months;

The host family consists of citizens permanently residing in the territory of the Russian Federation.

The basis for the stay of a child in a family is the order of the administration of the organization for children left without parental care. In accordance with paragraph 6 of the commented article, the administration has the right to apply to the guardianship and guardianship body, which maintains a database of candidates for guardians (trustees) with a request to provide information about citizens who wish to accept a child into a family temporarily. Thus, the guest mode can become a preliminary stage for the subsequent adoption, guardianship or guardianship. The acquaintance of the child with the host family at this stage can develop into a longer relationship.

Citizens who receive a child in the order of the guest mode of his stay do not become the legal representatives of the child and do not acquire any other rights of a guardian (custodian). They only have the responsibility to ensure the safety of the child. These citizens are prohibited from taking the child out of the Russian Federation.

The procedure and conditions for the temporary transfer of a child to a family of citizens permanently residing on the territory of the Russian Federation, as well as the requirements for such citizens, are determined by Decree of the Government of the Russian Federation of May 19, 2009 N 432 "On the temporary transfer of children in organizations for orphans and children left without parental care to the families of citizens permanently residing on the territory of the Russian Federation. This by-law made such strict requirements for citizens wishing to take a child for a short period of time that the guest regime for the stay of children in families was in jeopardy.

In accordance with the Rules for the temporary transfer of children in organizations for orphans and children left without parental care to the families of citizens permanently residing in the territory of the Russian Federation, citizens, having expressed a desire to take a child for one or two days, must first obtain a conclusion from the authority guardianship and guardianship at the place of residence of a citizen on the possibility of temporary transfer of a child (children) to the family of a citizen or a conclusion on the possibility of a citizen to be an adoptive parent, guardian or trustee. For this purpose, the same documents must be submitted to the guardianship and guardianship authority as in the case of the adoption of a child in a family for upbringing. The body of guardianship and guardianship, having received the documents and the application, within 15 days, checks the documents submitted with the application, examines the living conditions of the citizen and his family "in order to assess the living conditions of the citizen, the relations that have developed between the members of the citizen's family" and draws up a conclusion . At the same time, the guardianship and guardianship body has the right to request additional documents from the citizen in writing. Only after receiving positive test results, including data from a medical examination of a citizen and his family, the organization where the child is located will be able to transfer the child to the weekend (holidays). However, the named organization has the right to refuse the applicant. The decision to temporarily transfer a child (children) to a citizen's family or to refuse such a transfer is made by the head of the organization for orphans and children left without parental care, within 15 days from the date the citizen submits documents.

Article 155.3. The rights of children left without parental care and who are in organizations for orphans and children left without parental care

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

1. adoption (adoption),

2. guardianship (guardianship),

3. transfer to a foster family,

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

1.atsonship (adoption) - this is a priority form of placement of children left without parental care for family upbringing.

Terms and conditions of adoption

At present, adoption is carried out only by the court (previously it was carried out by guardianship and guardianship authorities).

Only minor children left without parental care can be adopted as adoptees. When the child reaches the age of ten, his consent is required. adoption of brothers and sisters by different persons is generally not allowed.

One of the most important conditions for adoption is the consent of the persons specified in the law. Thus, for the adoption of a child, the consent of his parents is necessary, 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 court of parental rights,

For reasons recognized by the court as disrespectful, they do not live together with the child for more than six months and evade his upbringing and maintenance.

at the same time, the same legal relations (including personal non-property and property relations) arise between the adoptive parents and adopted children as between parents and natural children by origin.

Cancellation of adoption

An adoption may be canceled by a court in the following cases:

Evasion of adoptive parents from fulfilling the duties of parents assigned to them,

Abuse of these rights

Abuse of adopted children

In this case, the consent of the child to cancel the adoption is not required.

2.Custody and guardianship of children

guardianship (guardianship )– a form of accommodation for children left without parental care for the purpose of their maintenance, upbringing and education, as well as the protection of their rights and interests. Over children under the age of 14 is established guardianship, aged 14 to 18 – guardianship.

The appointment of guardians and trustees is carried out by the guardianship and guardianship authorities at the place of residence of the child. requirements for guardians (custodians) are largely identical to the requirements for adoptive parents. Only fully capable persons of full age may be appointed guardians (custodians) of children. At the same time, their moral and other personal qualities, the ability to perform duties, the relationship between the guardian (trustee) and the child, the attitude of the family members of the guardian (trustee) towards the child, as well as the desire of the child himself are taken into account.

Persons deprived of parental rights, patients with chronic alcoholism or drug addiction, limited parental rights, former adoptive parents, if the adoption is canceled due to their fault, as well as persons who, for health reasons, cannot fulfill the duties of raising a child, cannot be appointed guardians (trustees). .

Relatives and acquaintances who have adopted the child often act as guardians (custodians).

The rights and obligations of guardians (custodians) are in many respects similar to those of parents. In particular, guardians are obliged to take care of the maintenance, upbringing and education of the child, of his moral and physical development. Guardians make transactions on behalf of minors and carry out other necessary legal actions, 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 body of guardianship and guardianship. In addition, the state pays monthly funds to the guardian (custodian) for the maintenance of the child.

Children under guardianship retain the right to receive alimony, pensions, allowances and other social benefits, the right to own or use housing, the right to communicate with their relatives.

The grounds for termination of guardianship and guardianship are:

The achievement by the child of the age of 14 and 18, respectively, or his emancipation,

Death of a guardian (custodian) or ward,

Return of minor to parents

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

Suspension of guardians (custodians), which is carried out in cases of improper performance of their duties. The consequence of this is the impossibility in the future to be an adoptive parent, guardian (trustee), foster parent.

3.foster family - relatively new institution in family law – is a kind of family-type orphanage, which includes some features of the institution of adoption and guardianship (guardianship). This form of raising children is common abroad. In Russia, by the beginning of the 21st century, there were about 1,000 foster families.

The legislation does not establish the minimum number of children that can be transferred to a foster family. The maximum number of adopted children, including relatives and adopted children, should not exceed eight. For the transfer to a foster family of a child who has reached the age of ten, his consent is required.

Adoptive parents are subject to the same restrictions as adoptive parents. Foster parents acquire the rights and obligations of a guardian (custodian) in relation to the adopted child. There are no alimony and inheritance legal relations between foster parents and foster children. Foster children retain the right to alimony received before being placed in a foster family, as well as inheritance rights in relation to relatives.

The main feature of the foster family is that it is formed on the basis of agreements on the transfer of a child to be raised in a family, which is between the body of guardianship and guardianship and adoptive parents. This agreement is legally contract for the provision of services(Article 783 of the Civil Code of the Russian Federation). The general provisions on contract, if this does not contradict the specifics of the subject matter of the service agreement.

The basis for the conclusion of the contract is the application of persons wishing to take the child for upbringing, which is submitted to the guardianship and guardianship authority at the place of residence of the child. The application is accompanied by the conclusion of the guardianship and guardianship authorities on the possibility of being foster parents, as well as relevant documents. The contract provides for the obligations of adoptive parents (raising a child, creating the necessary conditions for them to receive an education, caring for health, physical, mental, spiritual and moral development, ensuring the protection of the rights and interests of the child, etc.). The body of guardianship and guardianship undertakes to transfer monthly funds for the child and other payments, as well as to 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 the 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. To organize a family-type orphanage, the desire of both spouses to bring up at least 5 and no more than 10 children is necessary, if the family has native or adopted children who have reached the age of 10, then their consent is also necessary. The spouses are the organizers of a family-type orphanage.

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

A feature 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 the executive authorities of the subject of the Russian Federation or local governments.

Relations between the body of guardianship and guardianship and a family-type orphanage are determined treaty concluded between them, which unites a family-type orphanage with a foster family.

Unlike other forms of placement of children for upbringing, when creating a family-type orphanage, the organizers (spouses), in addition to the documents presented when adopting a child, must submit a document on education. When organizing an orphanage, preference is given to spouses who have experience in raising children, working in children's social, educational and medical institutions, who are adoptive parents or guardians (trustees).

Test questions:

1. Expand the content of the concept, subject, principles of family law.

2. What sources of family law are used in Russia?

3. Expand the content of the concept of marriage. Describe the legal conditions

marriage and the procedure for its conclusion.

4. Grounds for declaring a marriage invalid.

5. Expand the content of the legal mechanism for divorce in the registry office and

judicial order.

6. Describe the content of the rights and obligations 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.

Children left without parental care

Children left without parental care are children who have lost their parents in the event of their death, deprivation of their parental rights, restriction of their parental rights, recognition of parents as incapacitated, illness of parents, prolonged absence of parents, parents' evasion from raising children or from protecting their rights and interests, including when parents refuse to take their children from educational organizations, medical organizations, organizations providing social services, or similar organizations, when the actions or inaction of parents create conditions that pose a threat to the life or health of children or hinder their normal upbringing and development, as well as in other cases of lack of parental care.

In this case, the protection of the rights and interests of children left without parental care is entrusted to the guardianship and guardianship authorities.

Guardianship and guardianship authorities identify children left without parental care, keep records of such children and, based on the specific circumstances of the loss of parental care, select forms of placement for children left without care, and also exercise subsequent control over the conditions of their maintenance, upbringing and education.

The device of children without parental care

Article 123 of the Family Code of the Russian Federation presents the following family forms of device:

• Adoption (adoption).
• Guardianship (guardianship).
• foster or foster family.

In the absence of the above opportunities, children can be transferred to organizations intended for orphans and children left without parental care. In accordance with Art. 1 of the Federal Law "On additional guarantees for social support for orphans and children left without parental care", such organizations are educational institutions in which orphans are supported (trained and brought up). In addition, these organizations are represented by orphanages, boarding schools for disabled children, social rehabilitation centers, social shelters, as well as healthcare institutions (in particular, orphanages).

It should be noted that Article 155 of the Family Code of the Russian Federation implies an expansion of the list of the above institutions. In particular, the list of organizations for orphans and children left without parental care also includes non-profit organizations. At the same time, a condition must be met without fail, namely, the implementation of supervision of children is not in conflict with the goals of the activities of these organizations.

A child may be transferred to an organization for orphans and children left without parental care for permanent or temporary residence. If a child is placed in a specialized educational, medical or similar institution on a permanent basis, then the obligations related to the maintenance, upbringing, education of the child, protection of his rights and legitimate interests are fully assigned to these institutions.

When a child is placed in one of the listed institutions temporarily, then the parents (adoptive parents, guardians or trustees) retain all rights and obligations. The stay may be temporary in the event that there are good reasons for which the parents (adoptive parents, guardians or trustees) do not fulfill their duties in relation to the child. For example, due to a serious illness, a long business trip, etc.

Regardless of the nature of the device (permanent or temporary), the child is transferred to a specialized institution by issuing a decision (act) of the guardianship and guardianship authority.

The guardianship and guardianship authorities, which are directly involved in the fate of the child, perform the following legislative functions:

• Provide placement of the child in an organization for orphans and children left without parental care.
• Control over the activities of these organizations - first of all, the emphasis is on assessing the conditions of maintenance, upbringing, education and treatment of children.

Guardianship and guardianship authorities perform the duties of a guardian or custodian until the child reaches 18 years of age.

Help for children left without parental care

If you want to help children left without parental care, it is better to apply directly to the institutions where they stay. On the Children's Houses website you can find the addresses of such institutions throughout Russia.

There are also regional websites where you can find the addresses and phone numbers of the Funds for helping children left without parental care, or orphanages. For example, Orphanages in the Kaliningrad region or Children of Mordovia.

Data bank of children without parental care

Forms of placement of children left without care

Adoption (adoption) is the adoption of a child into the family on the basis of blood rights with all the ensuing rights and obligations. It is a priority form of the device. For parents, the highest degree of responsibility for the fate of the child and his full development. Not every child deprived of parental care can be adopted.

Custody and trusteeship - the adoption of a child into the family as a foster child. Guardianship is established over children under 14 years of age, and guardianship - over children from 14 to 18 years of age. The guardian has almost all the rights of a parent in matters of upbringing, education, maintenance of the child, and responsibility for the child. However, the guardianship authorities are obliged to exercise regular control over the conditions of maintenance, upbringing and education of the child. Guardianship may be appointed for a fixed term or without a term. Often guardianship is used as an intermediate form to adoption.

Foster family. A foster family is the guardianship or guardianship of a child or children, which are carried out under an agreement on a foster family, concluded between the guardianship and guardianship authority and the adoptive parents or foster parent, for the period specified in this agreement. Usually, children who cannot be transferred for adoption or guardianship are transferred to a foster family, for example, to raise 2-3 or more children of brothers and sisters in one family. Such a family replaces the child's stay in an orphanage or shelter with home education and is created on the basis of an agreement between the foster parent (parents) and guardianship and guardianship authorities.

Social guarantees, protection and rights of children left without parental care

State support for children left without parental care consists of several points. This is support in the following areas:

• The right to education.
• The right to medical care.
• The right to property and housing.
• Right to work.
• Judicial protection of rights.

Right to education

• Orphans and children left without parental care, orphans and children left without parental care, have the right to study at the preparatory departments of educational institutions of higher education at the expense of the appropriate budget of the budgetary system of the Russian Federation.
• Orphans and children left without parental care, orphans and children left without parental care, have the right to receive a second secondary vocational education under the training program for skilled workers without charging a fee.
• Orphans and children left without parental care, persons from among orphans and children left without parental care studying in educational programs of secondary vocational education or higher education in full-time education at the expense of the relevant budgets of the budget system of the Russian Federation, and also, students who have lost both parents or a single parent during the period of study are credited to full state support until the end of their studies.
• During the period of study in educational programs of secondary vocational education or higher education in full-time education at the expense of the relevant budgets of the budget system of the Russian Federation for persons from among orphans and children left without parental care, for students who have lost both or only one during this period parents, if they reach the age of 23, they retain the right to full state support and additional guarantees for social support when receiving secondary vocational education or higher education until graduation from the specified educational programs.
• Orphans and children left without parental care, persons from among orphans and children left without parental care, who study at the expense of the relevant budget of the budget system of the Russian Federation for basic educational programs, along with full state support, are paid a scholarship, an annual allowance for the purchase of educational literature and writing materials in the amount of a three-month scholarship, as well as one hundred percent of the wages accrued during the period of industrial training and industrial practice.
• Graduates of organizations engaged in educational activities - orphans and children left without parental care, persons from among orphans and children left without parental care, who come on vacation, weekends and holidays to these organizations, by decision of their bodies management can be credited for free meals and accommodation for the period of their stay in them.
• Graduates of organizations engaged in educational activities who studied under the main educational programs at the expense of the federal budget - orphans and children left without parental care, persons from among orphans and children left without parental care, with the exception of persons continuing education under the main educational programs full-time at the expense of the federal budget, are provided once at the expense of the organizations in which they studied or were kept, brought up, with clothes, shoes, soft stock and equipment in accordance with the standards approved by the Government of the Russian Federation, as well as a one-time cash allowance not less than five hundred rubles.
• Graduates of organizations engaged in educational activities, who studied under the main educational programs at the expense of the budgets of the constituent entities of the Russian Federation or local budgets - orphans and children left without parental care, persons from among orphans and children left without parental care, for with the exception of persons continuing their studies in the main educational programs full-time at the expense of the budgets of the constituent entities of the Russian Federation or local budgets, are provided with clothing, footwear, soft furnishings, equipment and a one-time cash allowance in the manner established by the laws of the constituent entities of the Russian Federation or regulatory legal acts of executive bodies authorities of the constituent entities of the Russian Federation.
• When students - orphans and children left without parental care, persons from among orphans and children left without parental care, academic leave for medical reasons, they are retained for the entire period of full state support, they are paid a scholarship.
• Orphans and children left without parental care, persons from among orphans and children left without parental care, who study at the expense of the federal budget for basic educational programs, are provided with free travel in urban, suburban, rural areas on intra-district transport (except taxi), as well as free travel once a year to the place of residence and back to the place of study.

Right to health care

• Orphans and children left without parental care, as well as persons from among orphans and children left without parental care, are provided with free medical care in medical organizations of the state health care system and the municipal health care system, including high-tech medical care, clinical examination, rehabilitation, regular medical examinations, and they are sent for treatment outside the territory of the Russian Federation at the expense of the budgetary allocations of the federal budget
• Orphans and children left without parental care, persons from among orphans and children left without parental care are provided with vouchers to health camps, to sanatorium organizations if there are medical indications, and travel to and from the place of treatment is also paid .

Right to property and housing

• Orphans and children left without parental care, persons from among orphans and children left without parental care who are not tenants of residential premises under social tenancy agreements or family members of the tenant of residential premises under a social tenancy agreement or owners of residential premises, as well as orphans and children left without parental care, persons from among orphans and children left without parental care who are tenants of residential premises under social tenancy agreements or family members of the tenant of residential premises under a social tenancy agreement or owners of residential premises , in the event that their residence in previously occupied residential premises is recognized as impossible, the executive authority of the constituent entity of the Russian Federation on whose territory the place of residence of these persons is located, in the manner established by the legislation of this constituent entity of the Russian Federation, provides comfortable residential premises once renting specialized housing stock under contracts for the rental of specialized residential premises.
• Residential premises are provided upon reaching the age of 18, as well as in the event that they acquire full legal capacity before reaching the age of majority.
• Upon application in writing, residential premises are provided to them at the end of their stay in educational organizations, social service organizations, healthcare institutions and other institutions created in the manner prescribed by law for orphans and children left without parental care, as well as upon completion of receipt vocational education, or the end of military service by conscription, or the end of serving a sentence in correctional institutions.
• The executive authorities of the constituent entities of the Russian Federation are obliged to exercise control over the use of residential premises or the disposal of residential premises by tenants or family members of tenants under social employment contracts or whose owners are orphans and children left without parental care, ensuring the proper sanitary and technical condition of these residential premises. premises.
• The executive authority of the constituent entity of the Russian Federation draws up a list of orphans and children left without parental care, persons from among orphans and children left without parental care, who are subject to provision with living quarters.
• The list includes persons over the age of 14 years. Providing orphans and children left without parental care, persons from among orphans and children left without parental care, living quarters is the basis for the exclusion of these persons from the list.
• Accommodation of orphans and children left without parental care, persons from among orphans and children left without parental care, in previously occupied residential premises, by tenants or members of the families of tenants under social employment contracts or whose owners they are, is recognized as impossible, if it is contrary to the interests of these persons due to the presence of one of the following circumstances:

1. Living on any legal basis in such residential premises of persons deprived of parental rights in relation to these orphans and children left without parental care, persons from among orphans and children left without parental care, persons suffering from a severe form of chronic diseases, in which it is impossible to live together with them in the same living quarters.
2. Residential premises are unsuitable for permanent residence or do not meet the sanitary and technical rules and regulations established for residential premises, or other requirements of the legislation of the Russian Federation.
3. The total area of ​​the dwelling per one person living in this dwelling is less than the accounting norm of the area of ​​the dwelling, including if such a decrease occurs as a result of the moving into this dwelling of orphans and children left without parental care, persons from the number of orphans and children left without parental care.
4. Other circumstance established by the legislation of the subject of the Russian Federation.

The procedure for establishing the fact of the impossibility of residence of orphans and children left without parental care, persons from among orphans and children left without parental care, in previously occupied residential premises, by tenants or members of the families of tenants under social tenancy agreements or whose owners they are , is established by the legislation of the subject of the Russian Federation.

The term of the lease agreement for specialized residential premises is five years.

In the event that circumstances are identified that indicate the need to provide assistance in overcoming a difficult life situation, a lease agreement for specialized residential premises may be concluded for a new five-year period by decision of the executive authority of the constituent entity of the Russian Federation. The procedure for revealing these circumstances is established by the legislation of the subject of the Russian Federation. A lease agreement for specialized residential premises may be concluded for a new five-year term no more than once.

Under contracts for the rental of specialized residential premises, they are provided in the form of residential buildings, apartments, well-maintained in relation to the conditions of the corresponding settlement, according to the norms for providing living space under a social contract.

Additional guarantees of the rights of orphans and children left without parental care, persons from among orphans and children left without parental care, to property and housing are related to the expenditure obligations of the constituent entity of the Russian Federation.

The right to provide living quarters is reserved for persons who belonged to the category of orphans and children left without parental care, persons from among orphans and children left without parental care, and have reached the age of 23 years, until they are actually provided with living quarters .

Right to work

• Bodies of the State Employment Service, when contacting them with orphans and children left without parental care, aged from fourteen to eighteen years, carry out career guidance work with these persons and provide diagnostics of their professional suitability, taking into account the state of health.
• Officials who are guilty of violating the terms of employment contracts regulating their relations with orphans and children left without parental care, persons from among orphans and children left without parental care, are liable in the manner established by the legislation of the Russian Federation.
• Job seekers for the first time and registered with the state employment service in the status of unemployed orphans, children left without parental care, persons from among orphans and children left without parental care, are paid unemployment benefits for 6 months in the amount of the average wages prevailing in the republic, territory, region, cities of Moscow and St. Petersburg, autonomous region, autonomous district.
• Employment service bodies carry out professional orientation within 6 months, send them for vocational training or additional vocational education, and organize employment for persons in this category.
• Employees - orphans and children left without parental care, persons from among orphans and children left without parental care, released from organizations in connection with their liquidation, reduction in the number or staff, employers (their legal successors) are obliged to provide at the expense of own funds necessary vocational training with their subsequent employment in this or another organization.

Judicial protection of rights

For the protection of their rights, orphans and children left without parental care, as well as their legal representatives, guardians (custodians), guardianship and guardianship authorities and the prosecutor have the right to apply in the prescribed manner to the appropriate courts of the Russian Federation.

Orphans and children left without parental care are entitled to free legal assistance in accordance with the Federal Law "On Free Legal Aid in the Russian Federation".