It will be possible to remove children from families only by a court decision - a corresponding bill has been submitted to the State Duma. If adopted, the Civil Code will be supplemented with a new category of cases of special proceedings - on the removal of a child from the parents or one of them, as well as from the guardians in the event of a threat to his life and health.
At the same time, the Family Code is supposed to preserve the extrajudicial procedure for this procedure only in exceptional cases, when “there is a risk of the death of a child within a few hours”.
The bill limits the powers of the guardianship officers. The reason for this is a series of high-profile scandals that leaked to the media about how children were taken from their parents for no good reason. The last high-profile case is about a family in Orenburg who dared to complain to the authorities about the emergency condition of the house. In social networks, stories about difficulties in families due to the pandemic periodically pop up: someone lost their job, someone lost their home. Complaining to the custody of parents is not only ashamed, but also scary. What if he decides to take the children?
If the bill, which, by the way, is consistent with the constitutional amendments on the protection of children and families, is adopted, the guardianship will be able to take the child only if he is threatened with an early death.
As an example: parents are drunk, the house is not heated, and there is a four-month-old baby on the floor. Guardianship should involve the police, record the fact of a threat to the baby's life, remove him and immediately go to court. Remark: there will also be amendments to the police law.
In all other cases, guardianship officials who believe that the parents are not doing their duty in relation to the child will have to prove this in court. The meeting is closed. In addition to the guardianship representative and the prosecutor, parents or guardians are present, and if necessary, other interested persons and the child himself.
If the court takes a positive decision, the bailiffs, accompanied by social services, will have to confiscate the child. The situation is commented on by a member of the working group on amendments to the constitution, secretary of the Public Chamber, doctor of jurisprudence, specialist in family law Lidia Mikheeva.
- The most important thing is that the intervention of the administrative body is replaced by a court decision.
- In most cases, illegal seizure occurs through the fault of local guardianship authorities. Does the new bill somehow regulate this moment?
- Yes, they actually do not make more of these decisions, they just participate in the withdrawal procedure, but little depends on them. They initiate the procedure, go to court, but they themselves do not administer what should administer justice.
This is a fairer algorithm, believes Anton Zharov, a lawyer at the Moscow City Bar.
Anton Zharov, lawyer of the Moscow City Bar Association “Finally, we began to draw up procedurally this very obscure and not prescribed procedure for removing a child from a family with an immediate threat to life and health. It is very good that now the court will deal with the issues of selection, because this does not require the guardianship authorities, which do not have the same qualifications as a judge, to understand the general situation, as a judge does, does not require such a complex decision by the guardianship and guardianship authority., and now this decision will be made by the court. To date, everything hung on the guardianship and trusteeship body. And you yourself determine whether there is a threat to life and health, and make a decision yourself, and choose it yourself, and place it yourself, and within seven days go to court with a claim for deprivation of parental rights."
On the one hand, the bill looks reasonable. On the other hand, unscrupulous care workers may still have room for abuse. In disputable cases, they do not carry out the official removal of children, but act in a different way, says Pavel Kantor, a lawyer from the legal group of the Center for Curative Pedagogy.
Pavel Kantor Lawyer of the legal group of the RBOO Center for Curative Pedagogy “For example, they exert very tough pressure on parents for the parents to sign a voluntary consent to transfer the child, and this is not called a withdrawal, because it is called“the parents agree on their own”. Or the guardianship authorities pretend that they have found a child on the street, a homeless child, and instead of removing the child from the family, they draw up an application protocol for identifying a neglected child. It may be feared that if the guardianship authorities are obliged to go to court to consider such cases, they will practice such quasi-exemptions."
The guardianship authorities make decisions not only on the removal of children, but also on their adoption. And in this area, some employees were reproached for lack of specialized knowledge, partiality and legal arbitrariness.
