A bill has been introduced to the State Duma, according to which guardianship will not be able to take children from families without a court decision. But it can only get worse

Before the start of consideration of the merits of the claim of the guardianship authorities to limit the rights of parents. Photo: Anton Novoderezhkin / TASS

Disguised seizure

Article 77 of the Family Code regulates the removal of children from families in Russia (removal of a child in the event of an immediate threat to life or health). According to it, social workers can remove children without a court decision if they receive a signed act from the executive authorities or the head of the municipality. But NGO experts point out that guardianship authorities also use other methods to remove children from families.

According to the head of the charity organization “Volunteers to Help Orphans” Elena Alshanskaya, there are few exemptions under Article 77, guardianship often bypasses it because it is difficult to work on it: you need to notify the prosecutor’s office about this and collect a package of documents for the court seven days in advance to deprive parents of their rights or limit them. That is, if guardianship has taken away a child, it is obliged to deprive the parents of their rights or limit them. This leads to another reason: it can be difficult for guardianship authorities to assess the situation on the spot.

“Employees come [to the family’s home] and objectively understand that they cannot make a decision in one visit, which sometimes lasts 20 minutes, or even several hours, whether there really are no alternatives and whether the parents’ rights will then need to be deprived or limited.” , says Alshanskaya.

Therefore, guardianship and trusteeship authorities often use other mechanisms instead of selection. For example, they come to the family with the police. And, if it is not possible to make an unambiguous decision, the police draw up an act to identify the neglected person. “Although this situation, to put it mildly, is on the verge of a foul, because there can be no child neglected in the presence of parents,” notes Alshanskaya.

Also, Elena says, there are cases everywhere when parents are forced to write an application for the voluntary placement of a child in a shelter. Her words are confirmed by the director of the Orenburg charitable foundation “Saving Life” Anna Mezhova. In fact, parents are given a choice, she explains: either they sign papers on the voluntary placement of children in an orphanage, or a procedure will begin to remove the children and deprive them of parental rights.

“In fact, this is not a voluntary appeal of families to the state for help, but a seizure formalized as a non-seizure. This causes people to protest. We must call a spade a spade,” says Mezhova. She also points out the danger of such guardianship actions in cases where the child really needs to be taken away from the family due to a real threat to his life and health. “Take, for example, parents who drink and abuse their child. Today the guardian will persuade them to give the child to a shelter, and tomorrow they will take him back and beat him in a drunken fight,” she gives an example.

As a result, Alshanskaya concluded, there are not so many removals of children from families on the basis of Article 77. And there are “full” of seizures that are documented as identification of a neglected person or voluntary placement in a shelter. “But precisely because they do not look like seizures, we cannot calculate how many there really are,” the expert comments.

How to appeal the removal of a child?

An appeal against an order to remove a child is carried out through administrative proceedings, where the respondent is a representative of the government agency that issued the act.

The step-by-step procedure looks like this:

1. Parents file an administrative claim within 10 days from the date of removal of the minor (Article 219 of the CAS RF).
2. The case is considered within 10 days, and based on the results, a decision is made to cancel the contested act or to leave it unchanged (Article 226 of the CAS RF).

If they disagree with the decision, parents or other interested parties who acted as plaintiffs have the right to challenge it before it enters into legal force - within 1 month after its adoption in final form (Article 298 of the CAS RF).

Sample statement of claim

The application must meet the requirements established by Art. 220 CAS RF.

Its contents include the following:

• name and address of the court;
• Full name, addresses of the plaintiff and defendant;
• details of the disputed order: number, date;
• the circumstances under which the act of selection was issued;
• grounds for challenging (absence of a selection act, illegal execution of the act, etc.);
• links to regulations;
• requirement to declare the order illegal.

At the end, an inventory of the submitted documents is made, and the plaintiff’s signature is affixed. The defendant is a representative of the OOiP. The claim may include a request to call witnesses who will confirm that the family is prosperous and the child receives the necessary parental care and attention.

Sample statement of claim for declaring illegal a decision, action (inaction) of a body or person:

Documentation

When going to court you will need a full set of documents:

• a copy of the disputed order;
• statement of claim;
• plaintiff's passport;
• characteristics from the place of work;
• income certificate.

Additionally, any written evidence indicating the unlawful removal of a minor shall be submitted.

Where to contact

The statement of claim is filed with the district court at the place of registration of the defendant.

State duty

The state duty for individuals is 300 rubles.

Arbitrage practice

An analysis of judicial practice shows that most often the courts refuse to satisfy claims challenging the orders of the POiP and the administration.

Let's consider an example according to Decision No. 2A-11765/2015 2A-11765/2015~M-12179/2015 M-12179/2015 dated December 8, 2015 in case No. 2A-11765/2015:

The daughter lives with her biological father, paternity is being established, DNA testing has confirmed the relationship, but a decision has not yet been made. The Department of Internal Affairs receives a statement that the child is in a socially dangerous situation. The girl is seized and placed in the hospital.

The man is trying to challenge the selection, citing the absence of threats to the life and health of the child. After the hospital, the girl was handed over to her mother.

The court refused to satisfy the demands, citing the lack of rights to the child: there is a dash in the “father” column of the daughter’s birth certificate. The decision has not yet been made, so he cannot be considered the father.

No social support for families

All the experts interviewed agreed that the current legislation works in one direction - to remove children, and not to prevent families facing difficulties.

“If the guardianship has decided to remove the child for any reason, it will file a lawsuit to limit or deprive the parents of the rights, because the law requires it. This is not a choice of custody, not an individual consideration of each situation, this is simply a formal obligation,” Alshanskaya said.

The selection procedure itself is very cruel, merciless to both mother and children, Leonova believes. In her opinion, even if the situation was threatening the life and health of children, the child has the right to an explanation of where and why he is leaving, why this happened. “And in acute situations, when adults in the family behave inappropriately and pose a threat not only to the child, but also to specialists, the child deserves a very delicate explanation and conversation in a calm atmosphere. The sensational stories of confiscation always look the same: adults fight with adults, but they don’t pay attention to children,” said Leonova.

Ideally, she says, the seizure procedure should take place in the most gentle environment possible. The child needs to explain everything that is happening as clearly and delicately as possible. “The first thing a specialist should do is contact relatives or close family members so that the child can spend some time with familiar people,” Leonova said.

Can guardianship authorities come without warning?

In many cases, government officials give advance notice of an upcoming visit. But they can come without prior notice.

This may happen if it was not possible to contact family members, or there are other reasons.

When there is a suspicion that a crime is being committed right now, social services arrive without warning along with the police.

Will the new bill help solve the problems?

“The long-term practice of applying Article 77 of the Family Code of the Russian Federation often indicates arbitrary interference by authorities in family affairs, which affects both children and parents (adoptive parents, guardians),” says the explanatory note to the bill. According to the proposal of its authors, cases of removal of children in case of a threat to their life and health should be considered by the court in an expedited manner - within 24 hours from the receipt of an application from the guardianship authorities or the police. The meetings will be held behind closed doors.

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What needs to be changed?

It is necessary to build a system that will tactfully and accurately sort out all complaints, “so that the guardianship authorities, on the one hand, take signals of child abuse seriously, and on the other hand, do not take the child away in all situations that seem wrong or strange to them.” , says Alshanskaya. She adds that the reason for taking away a child should only be cruel treatment, violence on the part of parents. Unfavorable living conditions or low family income are a signal that the family needs social support.

Who should I call for help, and is it possible to record the conversation?

At home, any persons whom the child’s legal representatives deem necessary to invite can be present during the conversation with the employees of the guardianship authority. Because this is their home. It will not be possible to bring a large “support group” to the territory of the guardianship authority.

It is most useful to invite a lawyer who specializes in family or property law to the meeting.

If the guardianship authority’s claims are related to medical issues, you can ask the child’s attending physician for support.

A doctor is also needed in cases where the health status of a minor may worsen during communication with representatives of the guardianship authority. For example, if the child has a palliative status.

Official communication between parents and guardianship officials may be recorded.

Any person present can make an audio or video recording of a conversation.

Information obtained as a result of audio or video recording can be used in court, even if the participants in the conversation were not warned about the recording in advance.

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