Persons in Loco Parentis in the Letter of the Current Law

Abstract

The paper explores the conceptual and instrumental aspects of a family law concept, namely «persons in loco parentis». The culture of its normative and theoretical use is not well-established. The scientific incentive for this discourse was the proposed legislative replacement of this concept with a new one — «persons in the care of a child» (Bill No. 157281-8). The author raises a theoretical and methodological question about what can be done theoretically to achieve legal completeness and clarity in understanding the legal meaning that is embedded in the already existing concept of «persons in loco parentis». It is important to prevent the incomplete legal awareness accompanying it from passing to the new concept proposed for introduction into the Family Code of the Russian Federation, replacing its definition. The final conclusions of the paper reflect the author’s scientific views on the problem posed by her and consist in the following. The scientific description of the legal concept of «persons in loco parentis» requires reliance not only on its linguistic designation, but also on such methodological positions as: the purpose of the presence of this concept in the normative text in the form of the need to separate persons recognized by law parents, from other persons who, on other legal or factual grounds, are in close relationship with the child; the concept of «persons in loco parentis» is secondary in its normative meaning, its essential side is predetermined by the derivation from the main term «legal parents of the child». Hence, the legal meaning of this group concept cannot be known through its scientific description as a concept that exists «by itself». It is necessary to compare it both with the concept from which it originated — legal parents, and with other ordained group (other persons in whose care the child is — Article 77 of the Family Code of the Russian Federation; other relatives; legal representatives of the child) and personalized (stepfather/ stepmother, actual caregiver, grandmother/grandfather) legal concepts.