Features of the implementation of the rights of orphans and children left without parental care depend on various forms arrangements for such children, the main of which are transfer to guardianship or trusteeship, transfer to foster family, placement in organizations for orphans and children left without parental care, or in other organizations in accordance with Art.

35 of the Civil Code of the Russian Federation and Art. 3 Federal Law of the Russian Federation “On guardianship and trusteeship”.

The choice of one or another form of placement for a child rests directly with the guardianship and trusteeship authority, but the opinion of the child who has reached the age of 10 is taken into account. The RF IC indicates that “when placing a child, his ethnic origin, belonging to a particular religion and culture, native language, and the possibility of ensuring continuity in upbringing and education must be taken into account” (Part 3, Clause 1, Article 123).

The most common form family structure children left without parental care are guardianship and trusteeship.

Currently, guardianship and trusteeship are understood as a form of placement of orphans and children left without parental care, for the purpose of their maintenance, upbringing and education, as well as to protect their rights and interests (Article 145 of the Family Code, paragraph 1 of Article 31 Civil Code of the Russian Federation, Article 1 of the Federal Law of the Russian Federation “On guardianship and trusteeship”). The principle of “common and equal” responsibility of guardians (trustees) (“legal guardians”) for the upbringing and development of the child is enshrined in the norms international law(Article 18 of the Convention).

Since this principle is similar to the principle of “common and equal responsibility” of parents, then the personal rights and responsibilities of guardians and trustees almost completely coincide with the similar rights and responsibilities of parents. In accordance with paragraph 6 of Art. 148.1 SK, a guardian (trustee) has the right and obligation to raise a child under guardianship, take care of his health, physical, mental, spiritual and moral development. The “general and equal” responsibility of guardians and trustees for the upbringing of minor wards is manifested in the fact that “the guardianship and trusteeship authority, based on the interests of the person who needs to establish guardianship or trusteeship over him, can appoint several guardians or trustees for him” (clause 7, 8, Article 10 of the Federal Law of the Russian Federation “On guardianship and trusteeship”).

IN similar cases representation and protection of the rights and legitimate interests of the ward are carried out simultaneously by all guardians or trustees. If the management of the affairs of a ward is entrusted by guardians or trustees to one of them, this person must have powers of attorney from the other guardians or trustees. When appointing several guardians or trustees, the responsibilities of providing the ward with care and assisting in the timely receipt of medical care, and in relation to a minor ward, the responsibilities for his education and upbringing are also distributed between guardians or trustees in accordance with the act of the guardianship and trusteeship body on their appointment or the agreement on the implementation of guardianship or trusteeship. If the specified responsibilities are not distributed, the guardians or trustees bear joint liability for their failure to fulfill them or improper execution.

Just like parents, guardians are the legal representatives of minors and carry out all property transactions and other legally significant actions in their interests, with the exception of those very few transactions that minors have the right to carry out independently. Guardians are responsible for damage caused by their wards unless they prove that the damage was not their fault. Guardians can be the legal representatives of their minor wards. All property transactions, with the exception of those that minors have the right to carry out independently, must be made only with the written consent of the trustees. Trustees are liable for damage caused by minor wards, in a subsidiary manner, if the wards themselves do not have earnings or property sufficient to compensate for it.

There is some similarity with the legal status of parents in the property rights and responsibilities of guardians and trustees in relation to minor wards. The same as in Art. 6 of the RF IC, in paragraph 1 of Art. 17 of the Federal Law of the Russian Federation “On Guardianship and Trusteeship” provides that wards do not have the right of ownership to the property of guardians or trustees, and guardians or trustees do not have the right of ownership to the property of wards, including the amount of alimony, pensions, benefits and other benefits provided for maintenance wards social benefits. Property may belong to guardians or trustees and wards by right common property on the grounds provided for by civil law. Wards have the right to use the property of their guardians or trustees with their consent.

However, unlike parents, who, by mutual agreement with their children, have the right to own, use and manage the children’s property, guardians and trustees do not have the right to use the property of their wards in their own interests, except for the cases established by Art. 16 Federal Law of the Russian Federation “On guardianship and trusteeship”, that is, in those cases when, with the permission of the guardianship and trusteeship authorities, they have the right to use their property instead of remuneration under an agreement on the paid implementation of guardianship and trusteeship.

However, even in these cases it is provided a whole series restrictions in the interests of the wards. Firstly, permission to use their property is possible only at the request of a guardian or trustee who conscientiously performs his duties. Secondly, the agreement on the paid implementation of guardianship or trusteeship must indicate the composition of the property of the ward, in respect of which free use is permitted, and the period of use of the property of the ward. The guardianship and trusteeship body has the right to prematurely terminate the use of the ward’s property in the event of failure or improper performance by the guardian or trustee of his duties, as well as in the event of a significant violation of the property rights and interests of the ward. Free use by a guardian or trustee of residential premises belonging to a ward is permitted if the place of residence of the guardian or trustee is remote from the place of residence of the ward, as well as in the presence of other exceptional circumstances.

Unlike parents, who can, in principle, quite freely dispose of the property of their children, with the exception of cases where transactions for the alienation of their property require prior permission from the guardianship and trusteeship authorities, guardians and trustees have a much lesser degree of freedom in this regard. In accordance with paragraph 2 of Art. 19 of the Federal Law of the Russian Federation “On Guardianship and Trusteeship”, the guardianship and trusteeship authorities give guardians and trustees permissions and binding instructions in writing regarding the disposal of the property of the wards.

The guardian has the right to deposit the ward’s funds, and the trustee has the right to give consent to the deposit of the ward’s funds only in credit organizations, at least half of the shares (shares) of which belong to the Russian Federation. The expenditure of the ward's funds contributed to credit organizations is carried out in compliance with the provisions of civil legislation on the legal capacity of citizens and the provisions of paragraph 1 of Art. 37 Civil Code of the Russian Federation.

The guardian does not have the right to enter into a credit agreement and a loan agreement on behalf of the ward, who acts as a borrower, and the trustee does not have the right to give consent to the conclusion of such agreements, except in cases where the loan is required for the purpose of maintaining the ward or providing him with living quarters. Loan agreement, a loan agreement on behalf of the ward in these cases is concluded with the prior permission of the guardianship and trusteeship authority. When submitting an application for a permit, the guardian or trustee is obliged to indicate at the expense of which property the loan obligation will be fulfilled.

The ward’s property cannot be transferred for loan, except if the loan repayment is secured by a mortgage (mortgage of real estate). The guardian does not have the right to enter into an agreement on the transfer of the ward’s property for use, and the trustee does not have the right to give consent to the conclusion of such an agreement if the period of use of the property exceeds 5 years. In exceptional cases, the conclusion of an agreement on the transfer of the ward’s property for use for a period of more than 5 years is permitted with the prior permission of the guardianship and trusteeship authority in the presence of circumstances indicating the special benefit of such an agreement, if federal law no other deadline has been established.

Special restrictions are established regarding the disposal of real estate owned by wards. So, in accordance with Art. 20 of this Law, real estate belonging to the ward is not subject to alienation, with the exception of following cases:

– forced foreclosure on the grounds and in the manner established by federal law, including when foreclosure on the subject of pledge;

– alienation under annuity or barter agreements, if such agreements are made for the benefit of the ward;

– alienation of a residential building, apartment, part of a residential building or apartment belonging to the ward, when changing the place of residence of the ward;

– alienation real estate in exceptional cases (the need to pay for expensive treatment, etc.), if the interests of the ward require it.

To conclude the above transactions aimed at alienating real estate owned by a ward, prior permission from the guardianship and trusteeship authority is required. If it is discovered that the ward’s residential premises have been alienated without the prior permission of the guardianship and trusteeship authority, the latter is obliged to immediately apply on behalf of the ward to the court with a request to terminate such an agreement in accordance with civil law, except for the case if such an agreement was concluded for the benefit of the ward. Upon termination of such an agreement, the property that belonged to the ward is subject to return, and losses caused to the parties to the agreement are subject to compensation by the guardian or trustee in the amount and in the manner established by civil law.

The guardian, without the prior permission of the guardianship and trusteeship authority, does not have the right to carry out, and the trustee does not have the right to give consent to, transactions for the rental of the ward’s property for rent, lease, free use or collateral, for the alienation of the ward’s property (including exchange or donation) , making transactions entailing the renunciation of the rights belonging to the ward, the division of his property or the allocation of shares from it, and the completion of any other transactions entailing a decrease in the value of the ward’s property.

Preliminary permission of the guardianship and trusteeship authority is also required in all other cases if the actions of the guardian or trustee may entail a decrease in the value of the ward’s property, including when:

1) refusal of the claim filed in the interests of the ward;

2) concluding a settlement agreement in court proceedings on behalf of the ward;

3) concluding a settlement agreement with the debtor in enforcement proceedings, in which the ward is the claimant. Prior permission from the guardianship and trusteeship authority is required in cases of issuing a power of attorney on behalf of the ward.

However, guardians and trustees, unlike parents, are not required to bear the main financial responsibility for the well-being of children, that is, to support their wards at their own expense. Their maintenance is carried out from social payments due to them, such as alimony, pensions, benefits, etc., as well as from income from the property of the wards, received both from the disposal of property, which can be carried out by guardians or trustees, and as a result of trust management their especially valuable property transferred by the guardianship and trusteeship authorities under a separately concluded agreement with the trustee. In cases where the property of the ward is not enough for his maintenance, the guardianship and trusteeship authorities may raise the issue of issuing benefits to guardians or trustees for their maintenance to the competent government authorities (Article 31 of the Federal Law of the Russian Federation “On Guardianship and Trusteeship”).

However, they are obliged to take care of the proper maintenance of their wards, their physical development. In accordance with paragraph 1 of Art. 25 of this Law, a guardian or trustee annually no later than February 1 current year, unless another period is established by the agreement on the implementation of guardianship or trusteeship, submits to the guardianship and trusteeship body a report in writing for the previous year on the storage, use of the ward’s property and on the management of his property with the attachment of documents (copies of sales receipts, tax receipts , insurance amounts and other payment documents).

IN modern Russia Along with the institution of “classical” (in the words of L. Yu. Mikheeva) guardianship, in which historically the main goal was and remains the protection of the rights and legitimate interests of the ward, there are a number of other types and forms of guardianship (trusteeship). In particular, in accordance with the Federal Law of the Russian Federation “On Guardianship and Trusteeship”, guardianship (trusteeship) can be temporary (preliminary) and ordinary (permanent). It can be appointed at the request of the parents of a minor who, for a certain period of time, cannot good reason fulfill your parental responsibilities; the basis for its appointment may also be an application from the child’s only parent, who addresses the guardianship and trusteeship authorities with his written order in the event of death to appoint a specific person as a guardian or trustee of his child.

Guardianship can also be appointed at the request of the minor himself, aged 14 to 18 years. Of course, the final word in such cases belongs to the guardianship and trusteeship authorities, who may not agree with the proposed candidacy and are even obliged to reject it if the person proposed for this role does not meet the legal requirements for the personality of a teacher of a minor.

In Art. 145 of the RF IC and Art. 10 of the Federal Law of the Russian Federation “On Guardianship and Trusteeship” states that a guardian, trustee or adoptive parent can only be an adult, fully capable citizen who, due to his business and moral qualities, is able to cope with the fulfillment of the functions of guardianship and trusteeship, most importantly, with the performance of duties for the education of minors. He must be in sufficient health to at least so much so that, on the one hand, to cope with the responsibilities of caring for a minor, on the other hand, not to create for him an environment that is dangerous to his life and health. The list of diseases, in the presence of which citizens cannot accept children into their families, was approved by Decree of the Government of the Russian Federation of May 1, 1996 No. 742.

Persons accepting children for upbringing must have such living conditions that they not only do not need housing themselves and do not use residential premises belonging to the ward, but also accept the child into their family and provide him with appropriate living conditions. The financial situation of persons wishing to accept children into their families must be sufficient so that there is no temptation to take advantage of property and (or) in cash belonging to the ward.

Persons deprived of parental rights, limited in parental rights, recognized by the court incompetent or partially capable, persons in respect of whom the adoption was once canceled due to their fault, who were suspended from fulfilling the duties of guardianship or trusteeship, as well as persons with whom the agreement on the transfer of the child (children) to foster care was terminated family.

Persons who have or have had a criminal record, who are or have been subject to criminal prosecution (with the exception of persons against whom criminal prosecution was terminated on rehabilitative grounds) for crimes against life and health, freedom, honor and dignity of the individual cannot be appointed as guardians, trustees, or adoptive parents. (with the exception of illegal placement in a psychiatric hospital, slander and insult), sexual integrity and sexual freedom of the individual, against family and minors, public health and public morality, as well as against public safety.

It seems to us that the law should prohibit the appointment as guardians or trustees of persons previously convicted of intentional crimes against property, for example, theft, robbery, robbery, etc., since placing children in the hands of such “educators” does not ensure their personal safety, more In addition, it can lead to the fact that the juvenile ward may be taught the skills of criminal behavior. It seems that such a legislative solution would contribute to the maximum degree of realization of the child’s right to protection from negative influence on them by legal guardians and other persons caring for the child (Article 19 of the Convention).

However, in principle, it is not at all necessary to wait for a legislative prohibition in order to protect a minor from harmful influence on the part of the future guardian or trustee, including foster parents, since the issue of appointing a specific person as a guardian, trustee or adoptive parent is decided by the guardianship authorities individually in each specific case.

If previously guardianship and guardianship were only one of the forms of family education of children left without parental care, now all forms of such upbringing, with the exception of adoption, have become varieties of guardianship and trusteeship, including a foster family, which was previously independent, in addition to guardianship and trusteeship, a form of raising children of this category, as well as a foster family (foster care, foster care), if such a form of guardianship and trusteeship is provided for by the legislation of the relevant constituent entity of the Russian Federation.

The institution of foster family deserves special attention. Even having become a type of guardianship and trusteeship, in accordance with the federal law “On Guardianship and Trusteeship,” it is aimed, first of all, at raising the child. Adoptive parents, in relation to the adopted child or children, exercise the rights and perform the duties of a guardian or trustee and are responsible for failure to fulfill or improper performance of the duties assigned to them on a professional basis, that is, for remuneration.

The laws of some constituent entities of the Russian Federation provide for the necessary special training for adoptive parents. In this sense, the transfer of a child to be raised in a family of persons with pedagogical abilities and high moral qualities, is an attractive form for training and educating a minor left without parental care. According to the results of studying the adaptation of children, the effectiveness of the same correctional, rehabilitation and educational activities more than twice as high in foster care than in government agencies.

A foster family is created on the basis of an agreement on the provision of paid guardianship and trusteeship. Adoptive parents can be either spouses who take on the responsibility of jointly raising their adopted children, or single persons. The creation and activities of a foster family are regulated by the Rules “On the creation of a foster family”, approved by Decree of the Government of the Russian Federation of May 18, 2009 No. 423. Control over the conditions of upbringing and education of children left without parental care, including the living conditions and upbringing of children in the foster home family, is entrusted to the guardianship and trusteeship authorities (Part 1, Clause 1, Article 121 of the Family Code). They have the right to remove the guardian or trustee from performing their respective duties, terminate the contract with the adoptive parents, or file a claim in court to cancel the adoption.

As for adoption as a priority form of family education for children left without parental care, a child placed in an adoptive family loses social and legal status an orphan or a child left without parental care. The peculiarities of his family legal status, in contrast to a natural child, lie only in his right to marry the natural child of the adoptive parent, since Art. 14 of the RF IC, which does not allow for a broad interpretation, there is no prohibition on entering into such a marriage. One may doubt the moral justification of such a norm, however, legal point In view of this, it should be noted that there is almost absolute equality in rights between the natural child of the adoptive parent and the adopted child.

If we compare his family-legal status with the family-legal status of a minor ward, including an adopted child, we can highlight only one feature: the impossibility of communicating with blood parents and other blood relatives, since adoption breaks all legal ties of the adopted child with his blood family.

More on the topic § 3. Peculiarities of the legal status of orphans and children left without parental care, transferred to the families of citizens for upbringing:

1. § 4. Legal status of children placed in care in organizations for orphans and children left without parental care
2. Chapter 7. Features of the legal status of orphans and children left without parental care
3. § 2. Social guarantees for orphans and children left without parental care in modern Russia
4. Section 4.5. Raising children without parental care
5. § 1. Development of legislation on the legal status of orphans in pre-revolutionary and Soviet Russia
6. § 3. Administrative penalties for failure by parents (other legal representatives) of minors to maintain and raise children
7. § 3. Criminalization and general characteristics of parents’ evasion from maintaining children or from reimbursement of expenses spent by the state on the maintenance of children in state care
8. Responsibilities of children to support and care for their parents.

What's happening in society sudden change value orientation, psychological disadaptation of a significant part of the population, decrease moral standards negatively affects the socialization process of children and adolescents. Growing scale antisocial behavior among adults stimulate the development of similar processes in children's environment. The most significant feature of recent years has been a significant increase in the size of social orphanhood and the emergence of its new characteristics

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On establishing orphan status

In case No. 2-412/12

Accepted Oktyabrsky District Court of Tambov (Tambov Region)

1. October district court the city of Tambov consisting of:
2. presiding judge Dyakova S.A.,
3. with the participation of the prosecutor of the Oktyabrsky district of Tambov - Klyukin Yu.Yu.,
4. under secretary Leonova O.V.,
5. having considered in open court a civil case on the claim of the prosecutor of the city of Michurinsk, Tambov region in the interests of FULL NAME13 to the Labor Department and social development Tambov region on establishing his legal status, recognizing him as a person from among orphans and children left without parental care, on accepting a registration file, Full Name14, belonging to the category of persons from among orphans and children left without parental care, for sending him to the Department of Labor and Social Development of the Tambov Region to receive social benefits for purchasing housing,

6. Installed:

7. The prosecutor of Michurinsk, Tambov Region, in accordance with the Code of Civil Procedure of the Russian Federation, filed a lawsuit in the interests of FULL NAME15. to the Department of Labor and Social Development of the Tambov Region and the Department of Public Education of the Administration of the city of Michurinsk to establish his legal status, recognizing him as a person from among orphans and children left without parental care, to assign the obligation to the Department of Education and Science of the Tambov Region to accept registration case FULL NAME16, belonging to the category of persons from among orphans and children left without parental care, for sending him to the Department of Labor and Social Development of the Tambov Region to receive social benefits for the purchase of housing. In support of the stated demands, the prosecutor indicated that FULL NAME 17., in 2002, was left without parental care, since his father FULL NAME 18, 06/24/2002 was convicted by the Moscow District Court of Ryazan and served his sentence in FBU IK-5 of the Federal Penitentiary Service of Russia in the Ryazan region to DD.MM.YYYY, and the mother - FULL NAME19, was not involved in raising her children and her whereabouts were unknown, by the decision of the Michurinsky City Court of the Tambov Region dated DD.MM.YYYY she was deprived of parental rights in relation to her minor children, including including in relation to FULL NAME20. Since December 2002, the upbringing, maintenance, and education of the minor, Full Name 21, has been handled by Full Name 22, appointed as his guardian by the Decree of the administration of the city of Michurinsk dated DD.MM.YYYY No. “On establishing guardianship over minors Full Name 23.” The father, FULL NAME 24., after his release from prison did not return to the city of Michurinsk, did not inform anyone about his release, and was not involved in the upbringing and maintenance of his children. By the decision of the Michurinsky City Federal Court of the Tambov Region from DD.MM.YYYY, FULL NAME25. deprived of parental rights in relation to minor children. In relation to the eldest son, FULL NAME 26. FULL NAME27 was not deprived of parental rights, since at the time of consideration of the civil case on the claim of FULL NAME 28 and the Department of Public Education of the Michurinsk City Administration against FULL NAME 29 for deprivation of parental rights, Nikolai reached the age of majority. By the resolution of the head of the administration of Michurinsk dated DD.MM.YYYY, No. FULL NAME 30., who was left without parental care, was granted the right to priority receipt of housing, due to the lack of permanent place residence, since the residential premises in which he lived, located at the address:<адрес>, burned; real estate for FULL NAME31. not listed. In accordance with Article 6 of the Tambov Region Law dated July 23, 2010 No. 682-3 “On additional guarantees for orphans and children without parental care,” FULL NAME32 as a person from among the orphans and children without parental care, has the right to receive social benefits for the purchase or construction of residential premises. According to paragraph 2 of Article 1 of the Law of the Tambov Region dated July 20, 2005 No. 342-3 “On the procedure for maintaining bodies local government registration of citizens as those in need of residential premises and the provision of residential premises under social tenancy agreements of the municipal housing stock in the Tambov region" orphans, children left without parental care, and persons from among them are accepted for registration as those in need of residential premises. Asks the court to establish the legal status of Full Name 33., to recognize him as a person from among orphans and children left without parental care, and to oblige the Department of Education and Science of the Tambov Region to accept the registration file of Full Name 34., who belongs to the category of persons from among orphans and children, left without parental care, to send him to the regional department of labor and social development to receive social benefits for the purchase of housing.
8. At the court hearing, the prosecutor - FULL NAME35 supported the stated claims in full on the grounds set out in the claim.
9. The representative of the defendant, the Department of Labor and Social Development of the Tambov Region, did not object to the satisfaction of these claims at the court hearing.
10. The representative of the defendant, the Department of Public Education of the Administration of the city of Michurinsk, did not object to the satisfaction of these claims at the court hearing.
11. Representative of the defendant Department of Education and Science of the Tambov Region in court hearing did not appear, the day and time of the hearing of the case were duly notified, the reasons for the failure to appear in court are unknown.
12. The court, after listening to the persons participating in the case and examining the written materials of the case, comes to the following conclusions.
13. From the case materials it follows that FULL NAME36 DD.MM.YYYY year of birth is a person from among the children left without parental care. By the decision of the Michurinsky City Court of Tambov dated DD.MM.YYYY his mother FULL NAME37. deprived of parental rights in relation to FULL NAME38. The child's father - FULL NAME39, according to the verdict of the Moskovsky District Court of Ryazan dated DD.MM.YYYY, was sentenced to imprisonment, released from prison on December 25, 2008. By resolution of the administration of Michurinsk No. dated DD.MM.YYYY, guardianship was established in relation to FULL NAME40, and FULL NAME41 was appointed guardian by the decision of the Michurinsky City Court of the Tambov Region dated DD.MM.YYYY, FULL NAME42. deprived of parental authority over his children. At the time of deprivation of parental rights, Full Name43 Full Name44 reached the age of majority.
14. By resolution of the administration of Michurinsk, Tambov Region No. No. dated DD.MM.YYYY, it was decided in accordance with the Housing Code of the Russian Federation for a minor FULL NAME45. provide out-of-turn housing at the end of their stay under guardianship or in a children's boarding institution. Based on the message from the GUPTI of the Tambov region in the city of Michurinsk region dated DD.MM.YYYY year FULL NAME46 FULL NAME47 FULL NAME48 real estate objects in the territory of Michurinsk and the Michurinsky district do not have the right of ownership.
15. November 10, 2011 Full name 49. An application was written to the Department of Labor and Social Development of the Tambov Region for a subsidy for the purchase of housing after completing military service on November 9, 2011.
16. According to the inspection report living conditions regulations of October 13, 2010. Full name 50 lives with his guardian Full name 51 at the address<адрес>owned by unauthorized persons. Nikolay is registered at:<адрес>, which burned down, and therefore needs to receive social benefits for the purchase of housing.
17. To date, housing FULL NAME52 has not been provided, social payments for the purchase or construction of housing have also not been made.
18. At the same time, his right to receive housing or social benefits for its purchase or construction is based on the norms of the current legislation and is not disputed by the defendant.
19. proclaims the Russian Federation a social state, the policy of which is aimed at creating conditions that ensure decent life And free development person, for which, in particular, it is provided government support family, motherhood, fatherhood and childhood, the system is developing social services, are installed state pensions, benefits and other guarantees social protection(v. 7).
20. Protection of family, motherhood, paternity and childhood, as well as social protection, including social Security, the Russian Federation is classified as a subject of joint jurisdiction of the Russian Federation and its constituent entities (clause “g” of part 1), which implies the assignment of responsibility for the implementation social function states both on federal government bodies and on government bodies of the constituent entities of the Russian Federation.
21. At the same time, on subjects of joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation, including social sphere, the general principles of delimitation of powers of federal government bodies and government bodies of the constituent entities of the Russian Federation are established by Federal Law of October 6, 1999 N184-FZ “On general principles organizations of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation."
22. Resolution of issues of social support for orphans, street children and children left without parental care, in accordance with subparagraph 24 of paragraph 2 of Art. 26.3 of this Federal Law refers to the powers of state authorities of the constituent entities of the Russian Federation, exercised by them independently at the expense of the funds of the constituent entities of the Russian Federation (with the exception of subventions from the federal budget).
23. Federal Law No. 159-FZ dated December 21, 1996 “On additional guarantees for social support orphans and children left without parental care", which aims to specify the state powers of the constituent entities of the Russian Federation in this area, regulates the relations arising in connection with the provision and provision by public authorities of additional guarantees for the social protection of the rights of orphans and children left behind without parental care, as well as persons from among orphans and children left without parental care ().
24. In particular, this Federal Law provides for the obligation to provide orphans and children left without parental care, as well as children under guardianship (trusteeship) who do not have assigned living quarters, out of turn, with a living space not lower than the established social norms after the end of their stay in the educational institution or institution social services, as well as in institutions of all types of vocational education, either upon completion of service in the Armed Forces of the Russian Federation, or after returning from institutions executing a sentence of imprisonment, by executive authorities at the place of residence, out of turn, with a living space not lower than established social norms ( paragraph two of paragraph 1 of Article 8), while additional guarantees for social support for orphans and children left without parental care, provided in accordance with current legislation, are provided and protected by the state (Article 4) and are expenditure obligations of the constituent entities of the Russian Federation. , with the exception of additional guarantees for children studying in federal state educational institutions, which are expenditure obligations of the Russian Federation (Article 5).
25. The above legal norm provides that the right to provide housing out of turn is granted only to orphans and children without parental care, as well as children under guardianship (trusteeship) who do not have assigned housing. Such a category as “persons from among orphans and children left without parental care” is not named in this norm. This, however, does not mean that such persons do not have the right to priority provision of housing according to the specified rules of law, which follows from the position of the Constitutional Court of the Russian Federation, expressed in the Determination of 06/07/2011 N 746-О-О.
26. As the Constitutional Court of the Russian Federation indicated, since the provisions of paragraph 1 of Art. 8 of the said Federal Law regulate, in essence, the same relations as the Housing Code of the Russian Federation, by virtue of the principle “Lex posterior derogat legi priori” (“The subsequent law repeals the previous one”), in case of doubt about the compliance of these provisions with the norms of the courts and other law enforcement agencies authorities must proceed from the fact that the norms of a federal law adopted later have priority.
27. Taking into account that the Housing Code of the Russian Federation names persons from among orphans and children left without parental care, it is this law that takes precedence over the provisions of the Federal Law "On additional guarantees for social support of orphans and children left without parental care ".
28. Thus, in accordance with the Housing Code of the Russian Federation, residential premises are provided to citizens registered as needing residential premises in order of priority based on the time of registration of such citizens, with the exception of the cases established by Part 2. Such an exception is provided, in particular, by the Housing Code of the Russian Federation - out of turn, residential premises under social tenancy agreements are provided to orphans and children left without parental care, persons from among orphans and children left without parental care, upon completion of their stay in educational institutions. and other institutions, including social service institutions, foster families, family-type orphanages, upon termination of guardianship (trusteeship).
29. Enshrined in the Housing Code of the Russian Federation legal regulation cannot be considered as limiting the rights of orphans, children without parental care, as well as persons from among them, since in a systematic connection with the provisions of the Federal Law “On additional guarantees for social support of orphans and children without parental care” it is aimed at establishing additional guarantees for this category of citizens and provides for them, in particular, the right to be provided by executive authorities at their place of residence, out of turn, with living space not lower than established social norms (second paragraph of paragraph 1 of Article 8).
30. By virtue of Article 6 of the Tambov Region Law of July 23, 2010 No. 682-Z “On additional guarantees for orphans, children without parental care, as well as persons from among orphans and children without parental care” orphans and children left without parental care, persons from among orphans and children left without parental care who do not have assigned living quarters or if their return to the living quarters assigned to them is impossible, after the end of their stay in institutions for children -orphans, as well as in educational and other institutions, including social service institutions, in foster families, upon termination of guardianship (trusteeship), as well as upon completion of service in the Armed Forces of the Russian Federation or upon their return from institutions executing punishment in form of imprisonment, are provided by the authorized executive body of the Tambov region, out of turn, with residential premises with a total area of ​​at least 33 and no more than 37 square meters, by providing residential premises under a social tenancy agreement. In the absence of the necessary housing stock, orphans and persons of equal categories are provided with a one-time social payment for the purchase or construction of residential premises suitable for permanent residence and landscaped in relation to the conditions settlement, meeting the requirements for the total area of ​​residential premises per person living in this residential premises.
31. Decree of the administration of the Tambov region No. No. dated DD.MM.YYYY. The Department of Labor and Social Development of the Tambov Region was determined to be the regional executive body authorized to provide living space for orphans, children without parental care, as well as persons from among orphans and children without parental care.
32. Decree of the administration of the Tambov region No. No. dated DD.MM.YYYY. The procedure for providing persons from among orphans and children left without parental care with living space or providing these persons with social benefits for the purchase or construction of residential premises has been approved. According to clause 3.1. Procedure The Department of Education and Science of the region, before April 15 of the current year, submits to the Department of Labor and Social Development of the region information about persons from among orphans and children left without parental care specified in paragraph 1.2 of this Procedure for inclusion in a single list of persons from among orphans and children without parental care who have the right to receive living space or social benefits for the purchase or construction of residential premises, and accounting files for persons from among the orphans and children without parental care specified in the information. Providing a person from among orphans and children without parental care with social benefits is carried out on the basis of an order from the department of labor and social development of the region and a certificate.
33. The Law of the Tambov Region of July 20, 2005 No. 342-Z “On the procedure for local government bodies to register citizens as those in need of residential premises and the provision of residential premises under social tenancy agreements of the municipal housing stock in the Tambov Region” established the procedure for registering citizens who belonging to the category of orphans, children left without parental care, persons from among them, as those in need of residential premises.
34. According to Article 4 of the Tambov Region Law of May 10, 2011 No. 2-Z “On the organization and implementation of guardianship and trusteeship activities for minors in the Tambov Region,” guardianship and trusteeship authorities keep records of adopted children, as well as children in in respect of whom guardianship or guardianship has been established, including under foster care agreements or foster family agreements.
35. The court has established and is not disputed by the parties that FULL NAME53, DD.MM.YYYY year of birth, is a person from among the children left without parental care: By the decision of the Michurinsky City Court of Tambov dated DD.MM.YYYY, mother FULL NAME54 was deprived of parental rights in relation to Full name55. The child's father - FULL NAME 56, according to the verdict of the Moskovsky District Court of Ryazan dated DD.MM.YYYY, was sentenced to imprisonment. By resolution of the administration of Michurinsk No. dated DD.MM.YYYY, guardianship was established in relation to FULL NAME57. Resolution of the administration of the city of Michurinsk, Tambov Region No. No. dated DD.MM.YYYY, in accordance with the Housing Code of the Russian Federation, is to provide a minor, FULL NAME58, out of turn with residential premises upon completion of his stay under guardianship or in a children's boarding institution.
36. At the time of his release, FULL NAME59, from places of imprisonment on December 25, 2008, Nikolai was 17 years old, FULL NAME60 did not return to the city of Michurinsk, did not inform anyone about his release, and was not involved in the upbringing and maintenance of his children. In 2009, the guardian FULL NAME61 appealed to the Michurinsky City Court to deprive the parental rights of FULL NAME62 in relation to her children. By decision of the Michurinsky City Court of the Tambov Region dated DD.MM.YYYY, FULL NAME63 is deprived of parental rights in relation to his children. At the time of deprivation of parental rights, Full Name64 Full Name65 reached the age of majority.
37. Analyzing the above, the court comes to the conclusion that the claims of the prosecutor of the city of Michurinsk, Tambov region are satisfied in the interests of FULL NAME 66., since the latter belongs to the category of persons from among orphans left without parental care, does not have a residential premises assigned to him and due to the above norms of law has the right to be provided by executive authorities at the place of residence, out of turn, with living space not lower than established social norms.
38. Guided by the Code of Civil Procedure, the court

39. Decided:

40. Claims satisfy the prosecutor of the city of Michurinsk, Tambov region.
41. Establish the legal status of Full Name 67, recognize him as a person from among orphans and children left without parental care.
42. To oblige the guardianship and trusteeship authorities of the city of Michurinsk, Tambov Region, to transfer the registration file FULL NAME68, DD.MM.YYYY of birth, belonging to the category of persons from among orphans and children left without parental care, to the Department of Education and Science of the Tambov Region.
43. The decision can be appealed against the Tambov Regional Court through the Oktyabrsky District Court of Tambov within a month from the date the court decision was made in final form.
44. Judge: S.A. Dyakova
45. The final form of the decision was made on February 27, 2012.
46. Judge: S.A. Dyakova

adoption orphan parent foreign

Orphans are persons under the age of 18 whose both or only parent has died. Children left without parental care - persons under the age of 18 who were left without the care of one or both parents due to the absence of parents or deprivation of their parental rights, restriction of their parental rights, recognition of parents as missing, incompetent, or in medical treatment. institutions, declaring them dead, serving their sentence in institutions in the form of imprisonment, being in places of detention of suspects and accused of committing crimes; evasion of parents from raising children or from protecting their rights and interests, refusal of parents to take their children from educational, medical institutions, social protection institutions and other similar institutions, and in other cases recognizing a child as left without parental care in the manner prescribed by law.

Persons from among orphans and children left without parental care - persons aged 18 to 23 years, who, when they were under the age of 18, died both or a single parent, as well as who were left without the care of a single or both parents and have, in accordance with this Federal Law, the right to additional guarantees for social support.

Institutions for orphans and children left without parental care are:

Educational institutions where orphans and children without parental care are kept (trained and/or raised);

Social service institutions (orphanages for disabled children with mental retardation and physical disabilities,

Social rehabilitation centers for children without parental care, social shelters);

Institutions of the healthcare system (orphanages) and other institutions created in accordance with the procedure established by law.

The law provides for complete state provision orphans and children left without parental care in the form of:

Providing them during their stay in the relevant state and municipal institution, in the family of a guardian, trustee, foster parents free food, free set of clothes and shoes, free hostel and free medical care or reimbursement of their full cost;

Students in secondary and higher vocational education institutions from among orphans and children left without parental care aged 18 years and older, but not more than 23 years old, have the right to full state support and additional social guarantees until the end vocational training in full-time educational institutions (Article 1 of the Federal Law “On additional guarantees for social support for orphans and children left without parental care”)

Protection of the rights and interests of children in cases of death of parents, deprivation of their parental rights, restrictions on their parental rights, recognition of parents as incompetent, illness of parents, prolonged absence of parents, evasion of parents from raising children or from protecting their rights and interests, including refusal parents take their children from educational institutions, medical institutions, social protection institutions and other similar institutions, as well as in other cases of absence parental care entrusted to the guardianship and trusteeship authorities.

Guardianship and trusteeship 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, and also carry out subsequent monitoring of the conditions of their detention, upbringing and education

Activities of others, except for guardianship and trusteeship authorities, legal and individuals to identify children left without parental care is not allowed.

The guardianship and trusteeship bodies are local government bodies. Issues of the organization and activities of local government bodies for the implementation of guardianship and trusteeship 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 Russian Federation, this code, the civil code of the Russian Federation (Article 121 of the RF IC).

The Russian state and society have always paid great attention protection of the rights and interests of children left without parental care.

Destitute orphans, children abandoned and abandoned by their parents have always been among those in need of so-called charity (care) from the state. Currently, the term “children without parental care” has received official recognition. About their right to special protection, state aid It is specifically stated in Art. 20 of the Convention on the Rights of the Child.

Leaving children without parental care can be caused by various reasons. It is difficult to list them exhaustively in the law. Article 121 of the RF IC defines only the main ones. We have to deal with reasons of both objective and subjective nature.

The first include: death of parents; their serious illness, which makes it impossible to care for the child and protect his rights; recognition of parents as incompetent; restriction or deprivation of parents' parental rights.

Other reasons for the loss of parental care are a consequence of either the inability to protect the child, take care of him due to the parents being in isolation (places of imprisonment, medical institution, etc.), or the unwillingness to fulfill their parental duty. True, such reluctance, in turn, can be explained as an unmotivated avoidance of fulfillment parental responsibilities, and by coincidence ( new family, living in another area, etc.).

Most acute form manifestations of indifference to the child on the part of the parents is the refusal to take him out of the institution where he is located. If this is a hospital or other medical institution, then as a result of such a refusal, after treatment, the minor falls into the category of children who have lost parental care. The same can be said about situations when a child is in an educational institution, a social welfare institution, or another similar institution where he was placed by his parents for a while. Reluctance to take a child can be considered as a basis for his subsequent placement. In this case, it does not matter what considerations the parent is guided by, what prevents him from taking his child to him without good reason.

It is possible that some other life situation may arise that could lead to the termination of care of the child by his parents. The absence of restrictions in the Family Code in determining the causes and signs of such a situation turns this provision of the law into a flexible tool for helping children in distress. But if a child grows up in a family of refugee parents, temporary migrants, then he, according to general rule, shares all the difficulties with them. Therefore, he cannot be counted among the children left without parental care: they take care of the child to the best of their ability. If for some reason there is no such care, all the signs of loss of parental care take place, aggravated by the situation of a refugee child, a temporary migrant.

In the presence of the circumstances listed in Art. 121 of the Family Code, the duty of guardianship and trusteeship authorities arises to take measures to protect the rights and interests of children, which at the same time is the right of these bodies, as authorized by the state, to implement it.

The death of parents is certified by a death certificate. The beginning of the loss of parental care in this case will be the day on which it occurred. In case of deprivation of parental rights, restrictions on parental rights, or recognition of parents as incompetent, the loss of parental care occurs from the moment the court decision enters into force. legal force. The same applies to a situation where a parent is deprived of his freedom. In such cases, the date of detention should be taken as the reporting point. If the parents are ill, the situation is somewhat more complicated. If it is associated with placement for long-term treatment, then the loss of parental care occurs when the parent is placed in a medical institution. The issue is resolved in a similar way if parents suffer from chronic alcoholism or drug addiction.

If the exact date of loss of parental care cannot be determined, it is determined depending on specific situation representative of the guardianship and trusteeship authority at the child’s location. After checking the information received by these authorities, an examination report is drawn up with conclusions about the presence or absence of loss of parental care.

To identify and register children left without parental care, officials of institutions (preschool educational institutions, educational institutions, medical institutions and other institutions) and other citizens who have information about the children specified in paragraph 1 of Article 121 of the Family Code are required to report this to the guardianship and trusteeship authorities at the place of the actual location of the children. Guardianship and trusteeship authority during three days from the date of receipt of such information, he is obliged to conduct an examination of the child’s living conditions and, upon establishing the fact of the lack of 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 decided. Heads of educational institutions, medical institutions, social protection institutions and other similar institutions, in which there are children left without parental care, they are obliged to report this to the guardianship and trusteeship authority at the location of this institution within seven days from the day when they learned that the child could be placed in a family for upbringing (clause 1 of Art. 122 RF IC).

The guardianship and trusteeship authority within a month from the date of receipt of the information specified in paragraphs. 1 and 2 tbsp. 123 of the RF IC, ensures the placement of the child and, if it is impossible to transfer the child to be raised in a family, sends information about such a child after the specified period to the relevant executive authority of the constituent entity of the Russian Federation. The executive authority of a constituent entity of the Russian Federation, within a month from the date of receipt of information about the child, organizes his placement in a family of citizens living on the territory of this constituent entity of the Russian Federation, and in the absence of such a possibility, 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 providing subsequent placement of the child into a family of citizens of the Russian Federation permanently residing in the territory of the Russian Federation. The procedure for forming use state bank data on children left without parental care is determined by federal law (clause 2 of article 122 of the RF IC).

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 concealing a child from being placed in foster care, the heads of institutions and officials of the bodies specified in paragraphs 2 and 3 of this article are subject to prosecution. to liability in the manner established by law (clause 4 of article 122 of the RF IC).

Identifying and recording children left without parental care is not an easy task, since there are approximately more than a million of them in Russia. The article establishes the procedure for identifying children left without parental care, as well as the procedure for registering them at the local (guardianship and trusteeship authorities), regional (executive authorities of the constituent entities of the Russian Federation) and federal (federal executive authority determined by the government of the Russian Federation) levels. An important prerequisite for guardianship authorities to take measures to protect the rights and interests of children left without parental care is their timely identification. This is immediate functional responsibility officials of guardianship and trusteeship authorities authorized to carry out activities to protect the rights of children. At the same time, in order to assist the guardianship and trusteeship authorities in identifying such children, the law obliges other officials and citizens to immediately report all cases of loss of parental care by children that become known to them.

The following information is obligated to inform the guardianship and trusteeship authorities: close relatives of the child, housing authorities, registry offices (if, when registering a death or declaring persons dead, they become aware of children left without care), the court when making appropriate decisions, internal affairs bodies (when taking custody custody or sentencing to imprisonment of persons who have minor children in their care), other officials who by their nature professional activities related to work with children and family, managers preschool institutions, schools, children's clinics, as well as public associations that have information about such children, other institutions and citizens.

This obligation is not provided with direct legal sanctions, and it should be considered as consolidating proper behavior in the interests of protecting the rights of the child. Guardianship and trusteeship authorities maintain constant contact with those who may have information about the unfavorable situation in the family, about street children. Family Code establishes a rule according to which the guardianship and trusteeship authorities, after receiving information about children left without parental care, are obliged to conduct an initial examination within three days, the purpose of which is to verify the accuracy of the information received (get to know the child, become familiar with the conditions in which he is located) , and when it is established that the child has lost parental care, identifying his relatives who can provide temporary care for the child. Depending on the circumstances, the child must immediately be assigned to an educational, medical institution, or social welfare institution.

Based on the initial examination, two documents are drawn up: an examination report and a conclusion based on it (an assessment of the collected facts, conclusions and proposals on the form of the child’s possible placement). At the same time, if necessary, measures must be taken to protect his property (an inventory has been drawn up, etc.). All data about the child is entered into the primary register of the established form, and then measures are taken for his placement. A legal obligation is established for the heads of institutions (regardless of their departmental affiliation and organizational and legal form) in which children are located to report to the guardianship and trusteeship authority at the location of this institution information about each child left without parental care who can be transferred to foster care to the family. In case of failure to provide such information, violation of the deadlines established by law for their provision (no later than 7 days from the day they became aware of this, i.e., there were grounds established by law for the transfer of the child to the family), provision of knowingly false information, as well as when committing for other actions aimed at concealing a child from being placed in foster care, the heads of institutions are held accountable in the manner prescribed by law.