Legal Procedure for Separation of the Child from his or her Parents: Inconsistency of Provisions of Russian Legislation with International Conventions

Olga Yuryevna Ilyina

doi:10.5901/mjss.2015.v6n3s3p65

Abstract

The purpose of the study is detection of contradictions in the provisions of international conventions and Russian legislation, which regulates relations between parents and a child, who lives separately from them (one of parents); formulation and motivation of proposals regarding elimination of contradictions. The author studies subjective (based on parents’ wishes) and objective (based on relevant government authority’s decision) prerequisites for separate residence of the child and parents (one of parents) as an actual separation. Grounds and procedures, legal effects of separation of the child from his or her parents (one of parents) are stated and studied, potential conditions for restoration of co-residence and communication of the child with parents (one of parents) are studied. The provisions of family legislation regarding deprivation of paternal rights and restriction of paternal rights in the context of exercise of the child’s power of communication with each of parents are criticized. The paper analyzes grounds, provided by the Family Code of the Russian Federation, for child and parents separation in terms of their consistency with requirements of The United Nations Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction. The neeed for taking into account child’s opinion and consent when establishing the regime of communication with parents (one of parents) is stated. Objective need for juridical terminology enhancement is demonstrated: development of “parental custody”, “right of access” and other notions. The need for amendments and additions in Russian legislation regarding provisions that enforce provisions of international acts in the area of child’s and parents’ rights protection is concluded. DOI: 10.5901/mjss.2015.v6n3s3p65

Highlights

Upbringing, co-residence of the child and parents at least before attaining majority are considered by society a peculiar standard of relations
It’s important to take into account position, provided in clause 1 article 9 of the United Nations Convention on the Rights of the Child of 1989, that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child
In pursuance of the provisions of mentioned Conventions a Russian legislator should clearly establish grounds and procedure for child’s separation from the parents, legal effects of the judgment delivered by a court or another competent government authority

Summary

Introduction

Upbringing, co-residence of the child and parents at least before attaining majority are considered by society a peculiar standard of relations. In case when the child and parents (one of parents) cannot live together for one reason or another, it’s necessary to establish grounds for separate residence, present legal evaluation of the situation developed, observe regime establishment procedure for child’s communication with each of parents for the purpose of ensuring child’s and his or her parent’s power of communication with each other. In pursuance of the provisions of mentioned Conventions a Russian legislator should clearly establish grounds and procedure for child’s separation from the parents, legal effects of the judgment delivered by a court or another competent government authority. The problem of ensuring child’s power of communication with one of parents within the framework of regime of communication of the child and his or her parent living separately established by court has become pressing Approved by the Presidium of Supreme Court of the RF, July 20, 2011)

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