Presidential Council On Codification Did Not Support Mizulina's Amendments To The Family Code

Presidential Council On Codification Did Not Support Mizulina's Amendments To The Family Code
Presidential Council On Codification Did Not Support Mizulina's Amendments To The Family Code

Video: Presidential Council On Codification Did Not Support Mizulina's Amendments To The Family Code

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MOSCOW, November 13. / TASS /. The Presidential Council for Codification and Improvement of Civil Legislation opposed bills to amend family legislation, introduced earlier by a group of senators headed by Elena Mizulina. These amendments are in conflict with the current laws and provisions of the UN Convention on the Rights of the Child, the Council said in a statement, which is at the disposal of TASS.

"As a result of consideration, the Council did not support the submitted bills," the text says. The 34-page expert opinion indicates the controversy of the conceptual provisions of the draft laws, the lack of elaboration of the proposed legal regulations, "the presence of internal contradictions and a huge number of legal and technical flaws, as well as the narrowness of coverage of existing problems and isolation from law enforcement practice."

As noted by the Chairman of the Council, the head of the State Duma Committee on State Construction and Legislation Pavel Krasheninnikov, "many of the approaches proposed in the draft laws conflict with the current Russian legislation and with the provisions of the UN Convention on the Rights of the Child and, accordingly, with the obligations assumed by the Russian Federation under the Convention." In addition, he added, "reforming is harmful in the sphere of family law regulation," and therefore only a point-by-point amendment of those provisions of the legislation that proved to be erroneous is possible.

The Council, in particular, indicates that, according to the explanatory note to the draft law on amendments to the Family Code of the Russian Federation, the document is intended to strengthen the institution of the family, as well as to regulate "the legal protection of the interests of the family as a social institution." “However, as the Constitutional Court emphasized, the development of a universal concept of“family”is hardly possible and necessary, since this concept has a different content, depending on the goals of legal regulation,” the Codification Council notes.

They also considered it erroneous to oppose the interests of the family and its individual members, since "in the overwhelming majority of cases, these interests coincide," and in the presence of contradictions between the interests of individual family members, the legislator's goal is, first of all, to protect the rights and interests of a minor or disabled person who needs special support. The current international and national norms are based on the principle of protecting the rights and legitimate interests of the child, but from the concept of the draft law "this principle is excluded," the Council points out.

The senators also propose to consolidate the presumption of good faith in the exercise of parental rights by parents as a principle of family law. The Council pointed out that the assumption of good faith in itself cannot be a universal rule of law. In addition, no coherent procedure for refuting this presumption, a special procedure for obtaining evidence, has not been proposed. “The application of such a presumption in practice in many cases can make it difficult to protect the rights of the child,” the statement said.

In addition, the draft laws do not sufficiently disclose the concept of "family legal responsibility" introduced by them. There is only a mention that deprivation and restriction of parental rights are measures of family legal responsibility.According to the Council, this is primarily a measure to protect the rights of children, and responsibility for parents is spelled out in the Criminal Code and the Code of Administrative Offenses.

Blood ties and gender reassignment

The Council also criticized the wording of some of the definitions. For example, according to the bill, parents are blood-born, that is, the biological mother and father of the child. But we can talk, for example, about "social kinship" - when a man, knowing about the absence of genetic kinship, does not dispute paternity. Such categories of persons are considered by family law as parents, and the bill deprives them of the right to be recorded as parents in the birth certificate.

"With regard to the ban on marriage registration by persons who have changed their sex, which follows from the provisions of the draft laws, the Council pointed out the inadmissibility of this kind of limitation of the legal capacity of citizens," the text says.

Child protection

Another claim is related to the proposal to exclude from the list of grounds for deprivation and restriction of parental rights, cruelty to children and an attempt on their sexual integrity. There is no explanation of such a proposal in the explanatory materials, and "as a result, the application of protection measures for a victim of violence will be made dependent on the presence or absence of a court judgment in the relevant criminal case."

"The provisions on the application of temporary protection measures proposed by the bill provide for an administrative procedure for removing a child from a family without any judicial control. In practice, this may create an additional threat of unjustified interference in family affairs and violation of the rights of parents and children," the Council said.

About bills

In July Elena Mizulina, the head of the temporary commission of the Federation Council for the preparation of proposals for improving the Family Code, together with a group of senators, submitted to the State Duma a package of bills to amend family legislation, which, among other things, prohibits marriage and adoption of children not only to persons of the same sex, but also to those who previously changed sex. She explained that the proposed changes in the bill are conditioned by the new constitutional provisions.

The government commission on legislative activity did not support these initiatives.

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