NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of March 31, 2016 No. 2

About practice of application by courts of the legislation on adoption (adoption) of children

Having studied practice of application by courts of the legislation on adoption (adoption) of children and for the purpose of uniform application of regulations of the existing matrimonial legislation, the plenary session of the Supreme Court of the Republic of Kazakhstan

decides:

1. The legislation of the Republic of Kazakhstan on adoption (adoption) of children at the national and international levels (further - adoption), is based on the Constitution of the Republic of Kazakhstan (further - the Constitution) and consists of the Code of the Republic of Kazakhstan "About scrap (matrimony) and family" (further - the Code), the Law of the Republic of Kazakhstan of August 8, 2002 No. 345-II "About the child's rights in the Republic of Kazakhstan", the Conventions on the Rights of the Child (it is accepted by the General Assembly of the United Nations on November 20, 1989, it is ratified by the resolution of the Supreme Council of the Republic of Kazakhstan on June 8, 1994 No. 77-XIII) (further – the Convention on the Rights of the Child), Conventions on protection of children and cooperation concerning foreign adoption (it is ratified by the Law of the Republic of Kazakhstan of March 12, 2010 No. 253-IV, became effective for the Republic of Kazakhstan on November 1, 2010) (further – the Convention on protection of children and cooperation concerning foreign adoption), normative resolutions of the Constitutional Court and the Supreme Court of the Republic of Kazakhstan, the orders of the Government of the Republic of Kazakhstan of September 21, 2010 No. 966 "About measures for ensuring accomplishment by the Republic of Kazakhstan of the obligations following from the Convention on protection of children and cooperation concerning foreign adoption" of March 30, 2012 No. 380 "About approval of Rules of transfer of the children who are citizens of the Republic of Kazakhstan on adoption", orders of the Minister of Education and Science of the Republic of Kazakhstan of December 9, 2014 No. 513 "About approval of Rules of accreditation of the agencies on adoption and the organizations for rendering assistance in the device of orphan children, children without parental support, in families of citizens of the Republic of Kazakhstan", of June 29, 2016 No. 407 "About approval of Rules of accounting of the persons who are citizens of the Republic of Kazakhstan, constantly living in the territory of the Republic of Kazakhstan, persons interested to adopt orphan children, children without parental support, of January 16, 2015 No. 13 "About approval of Rules of activities and structure of the commission issuing the conclusion about possibility (impossibility) of issue of permission about transfer of the children who are citizens of the Republic of Kazakhstan on adoption" of January 16, 2015 to No. 16 "About approval of Rules of the organization of accounting of orphan children and children without parental support, and information access about them", the order of the Minister of health and social development of the Republic of Kazakhstan of August 28, 2015 No. 692 "About approval of the list of diseases in the presence of which person cannot adopt the child, accept it under guardianship or custody, patronage" (further – the List of diseases in the presence of which person cannot adopt the child, accept him under guardianship or custody, patronage), the order of the deputy. The Minister of Foreign Affairs of the Republic of Kazakhstan of June 14, 2016 No. 11-1-2/262 "About approval of Rules of accounting of the persons who are citizens of the Republic of Kazakhstan, constantly living outside the Republic of Kazakhstan, the foreigners wishing to adopt orphan children, children without parental support, being citizens of the Republic of Kazakhstan and other regulatory legal acts.

2. Cases on adoption (adoption) of the child and his cancellation, recognition of adoption (adoption) invalid are considered and permited by specialized interdistrict juvenile courts (part three of Article 27 of the Code of civil procedure of the Republic of Kazakhstan - further to GPK) at the place of residence (stay) of the child.

Specialized interdistrict juvenile courts consider and resolve civil cases on the disputes affecting the rights and legitimate interests of minors.

According to the petition of the legal representative of the minor declared before the end of preparation of case for legal proceedings, cases on statements for adoption can be considered or can be transferred to district (city) court at the place of residence (stay) of the child, except for put, cognizable to the district (city) courts which are in limits of the cities of republican value and the capital, the regional centers (Article part three 27 GPK).

The citizens of the Republic of Kazakhstan who are constantly living outside the territory of the Republic of Kazakhstan and also foreign citizens, including in cases when they constantly live in the territory of the Republic of Kazakhstan, the application for adoption is submitted to specialized interdistrict juvenile court.

It must be kept in mind that person who filed petition for adoption acquires the rights of the legal representative of the child only after the introduction of the judgment about adoption of the child in legal force, except as specified, when the applicant is guardian or the custodian, the adoptive parent (adoptive parents), the foster tutor or other person replacing the legal representative performing care, education, education, protection of the rights and interests of the child according to the legislation of the Republic of Kazakhstan (the subitem 12) of Item 1 of article 1 of the Code).

3. Adopting the statement for adoption, the court checks whether there corresponds the statement on form and content to the general requirements shown by Article 148 GPK to the claim, and requirements of Article 311 GPK.

Proceeding from specifics of cases of this category, the court needs to check specifying in the statement of information about adoptive parents, children whom they wish to adopt, for the residence (stay) of children, their parents, availability at children of full and not full brothers and sisters, requests for possible changes in record of acts of the birth of the adopted children, for circumstances with which the code connects opportunity to be adoptive father, the proofs, and also availability confirming them in appendix to the statement of necessary documents which list contains in Article 312 GPK.

In case of impossibility of receipt of these documents by the applicant, they from relevant organs shall be requested by court according to the petition of the applicant.

In case of adoption of children by relatives data on finding of adoptive parents in family relation with biological parents of children shall be specified in the statement and the documents confirming family relation between biological parents of the child and adoptive parents are enclosed (certificates of birth, documents on change of surname, decision of the courts about establishment of the related relations, etc.). In case of determination of the group of people, belonging to relatives of the adopted child, the court should be guided by the subitem 36) of Item 1 of article 1 of the Code according to which relatives are the persons which are in family relation, having general ancestors to the great-grandfather and the great-grandmother. In case of failure of evidence, confirming family relations, the statement to satisfaction is not subject, in this case lack of other obstacles to adoption of the child has no legal value. It is necessary to explain to the applicant about need of observance of the procedure established by the law for adoption of the child.

According to the procedure of preparation of case for legal proceedings the court should find out motives of adoption for exception of the facts of adoption for the purpose of receipt of the status of mother having many children or large family for access to the state privileges and benefits, receipt of delay of execution of sentence and other benefits which are not connected with the adoption purposes.

Owing to Article part two 54 GPK participation of the prosecutor in civil legal proceedings is obligatory on cases when protection of citizens who cannot independently protect themselves, whom the adopted children in this connection case on adoption is subject to consideration with obligatory participation of the prosecutor treat is required.

The citizens of the Republic of Kazakhstan who are constantly living outside the Republic of Kazakhstan the foreigners including having the residence permit in the Republic of Kazakhstan persons interested to adopt children, shall provide written consent of authorized body in the field of protection of the rights of children of the Republic of Kazakhstan (Committee on protection of the rights of children) to the beginning of the procedure of adoption.

Obligation of personal participation of adoptive parents in judicial session does not exclude possibility of participation of authorized representatives based on Articles 57, of 58, 60 GPK which the principal having the right without personal participation out of stage of legal proceedings to collect and provide necessary proofs, upon the demand of the judge to provide corroborating evidences, to put question of assistance in reclamation of written and physical evidences.

4. According to the subitem 8) Item 1 of article 610 of the Code of the Republic of Kazakhstan "About taxes and other obligatory payments in the budget (Tax code)" the state fee in the amount of 0,5 of the monthly settlement indicator (further - MRP) established by the Law on the republican budget and operating on payment date of the state fee is collected from statements (claims) for the special proceeding, administrative claims within the Administrative procedural Procedure Code of the Republic of Kazakhstan except for specified in subitems 2) 3), 4) and 13) of Item 1 of the above-stated Article.

Owing to stated it must be kept in mind that as cases on statements for adoption are considered according to the procedure of special, but not claim production, the state fee shall be collected in the amount of 0,5 MRP, irrespective of the number of adoptive parents (one adoptive father or married couple) and the adopted children specified in the statement.

5. In case of adoption of the found, thrown (negative) child availability of the protocol or statement of detection of the child which is drawn up by law-enforcement body or local executive body is not enough. Adopting statements for adoption of such child, the judge checks whether the copy of the birth statement and the certificate on its birth confirming registration of the child according to article 196 of the Code are enclosed to the application.

If at the time of filing of application about adoption the found, thrown (negative) child is not registered according to the procedure, stipulated in Article 196 Codes, and elimination of this shortcoming on stages of pre-judicial preparation of case, then court according to the subitem 3) is impossible for Article part one 152 GPK shall resolve issue of return of the statement to the applicant for elimination of the circumstances interfering initiation of proceedings.

6. Considering cases on adoption of children - citizens of the Republic of Kazakhstan foreigners, courts should mean that foreign persons have procedural law and carry out procedural obligations on an equal basis with citizens and legal entities of the Republic of Kazakhstan if other is not provided by the international treaty ratified by the Republic of Kazakhstan (Article part two 472 GPK).

The documents issued, constituted or certified in the established form by competent authorities of foreign states, made outside the Republic of Kazakhstan under the laws of foreign states concerning the organizations of the Republic of Kazakhstan or foreign persons are accepted by courts of the Republic of Kazakhstan in the presence of consular legalization or putting down of apostille if other is not stipulated by the legislation and (or) the international treaty of the Republic of Kazakhstan.

At the same time it must be kept in mind that legalization of documents is not required in the relations between the State Parties of the Convention canceling the requirement of the legalization of foreign official documents (the Hague, on October 5, 1961) which became effective for the Republic of Kazakhstan on January 30, 2001 (further - the Convention).

According to requirements of articles 3 and 5 of the Convention instead of diplomatic or consular legalization of official documents in the State Parties of the Convention in confirmation of authenticity of signatures of officials, seals or stamps on the document by the competent authority of the state in which this document was made puts down apostille. The court needs to pay attention to observance of procedure for putting down of apostille, stipulated in Article 4 Conventions, namely: the apostille is put down on the document or on the single sheet fastened to the document, it shall correspond to the sample attached to the specified Convention.

If the apostilled document issued by the foreign agency has limited effective period which expired by the time of its presentation to court, then it is necessary to resolve issue of recognition of such document by the inadmissible proof.

7. Owing to Article 314 GPK cases on adoption of the child shall be considered with obligatory participation of adoptive parents (adoptive father), representatives of the body performing functions on guardianship or custody and also the prosecutor. It must be kept in mind that if participation in judicial session of adoptive parents, representatives of the body performing functions on guardianship or custody is obligatory under the law, then parents (parent) or other legal representatives of the adopted child, his relatives and other interested persons, and also the child who reached age of ten years, the court can recruit in case in necessary cases. By preparation of case for legal proceedings the judge should resolve issue of attraction to participation in case of specified persons for the purpose of ensuring interests of the child. When attracting to participation in case of biological parents the judge shall explain adoption consequence in law.

If the court comes to conclusion about feasibility of poll in judicial session of the adopted child who reached ten years for clarification of his opinion on case in point, then the court should find out previously opinion of the body performing functions on guardianship or custody in order that presence of the child at court did not make on it adverse effect. Along with these courts it is necessary to consider provisions of article 12 of the Convention on the Rights of the Child and article 62 of the Code according to which the child irrespective of age has the right to express freely the opinion on all questions infringing on its interests and also to be heard during any legal or administrative proceedings.

In case of poll in judicial session with participation of the psychologist it is necessary to find out whether the opinion of the child is consequence of impact on it one of parents or other interested persons, whether he realizes own interests in case of expression of this opinion and as he proves it.

If for health reasons the child who reached age of ten years cannot be in judicial session (for example, the child is disabled person since the childhood and it is limited in movement), the court taking into account interests of the child can find out his opinion concerning adoption in the place of its stay.

8. In the presence at the child of parents their consent is the compulsory provision of adoption. The consent of parents to adoption of the child shall be expressed in the statement which is notarially certified or certified by the head of organization in whom there is child without parental support, or and also can be expressed by the body performing functions on guardianship or custody on production site of adoption of the child or at the place of residence of parents directly in court in case of adoption production. Consent to the adoption this by the parent in court shall be reflected in the protocol (brief protocol) and is signed by it personally, and also is reflected in the decision. In view of that this category of cases is considered in the closed judicial session, the court the process audio-video fixing having the right not to spend applicants according to the petition, in this case is constituted the complete protocol of judicial session.

Proceeding from priority of the rights of parents, it is necessary to consider that any of them can cancel before decision agreed by it earlier to adoption irrespective of the motives which induced it to make it (article 93 of the Code). In this case the court passes the decision on refusal in satisfaction of the requirement about adoption.

The requirement of the law on need of consent of parents of adoption of the child extends also to the children having parents (parent) and being under guardianship (guardianship) educational medical, treatment and prevention facilities, organizations of social protection of the population and other similar organizations, except cases, stipulated in Article 94 Codes.

In case of adoption of the child of the minor parents who did not reach age of sixteen years also the consent of legal representatives is necessary. In case of absence of legal representatives of minor parents or if the child is thrown by minor parents in the medical organization after the birth and its destiny nobody is interested more than three months, the consent of the body performing functions on guardianship or custody is necessary.

According to Item 7 of article 77 of the Code adoption of the child in case of deprivation of parents of the parent rights is allowed after six months from the date of the introduction in legal force of the judgment about deprivation of the parent rights. Adoption of the child, one of parents of which is deprived of the parent rights, it is allowed with the consent of other parent.

The refusal of the guardian (custodian) or heads of the organizations stated above to agree to adoption, unlike refusal of parents on adoption, does not interfere with positive permission court of question of adoption if it is required by interests of the child (Items 1, 4 - 6 articles 93 of the Code).

Article 94 of the Code limits the right of court to request other documents confirming the consent of parents to adoption in the presence of the written application issued in accordance with the established procedure about refusal of the child in the medical organization of mother who is not married (matrimony). In the specified case the court should check whether the consent of mother to adoption of the child at the time of consideration of the case in court by sending an inquiry in notarial chamber, bodies performing functions on guardianship or custody, the head of the medical organization depending on the one who drew up refusal of the child and consent to adoption is withdrawn.

Owing to article 95 of the Code adoption of the child who reached age of ten years requires its consent which is established by court in the presence of parents or other legal representatives of the child, the prosecutor.

9. Adoption of the child by one of spouses requires the written consent of other spouse to adoption if the child is not adopted by both spouses (article 96 of the Code).

The exception is constituted by cases when by the court considering the application for adoption it is determined that spouses stopped the family relations, do not live jointly over a year and the residence of the spouse of the applicant is unknown. The specified circumstances can be established by proofs, the stipulated in Article 63 GPK (the testimony about the termination of the family relations between spouses, certificates of address services, law-enforcement bodies of results of search etc.), and also the judgment which took legal effect about recognition of this spouse is unknown absent.

In case of adoption of the child by one spouse the court should sort out the relations which developed in the adoptive father's family, to establish motive, cause of failure from adoption by other spouse whether there are no circumstances excluding the right of this spouse to be adoptive father under the law whether there corresponds to interests of the adopted child set of the established circumstances.

10. Adoption of the brothers and sisters who were brought up in one family by different persons is not allowed, except as specified, when adoption is equitable to interests of children and children do not know about the relationship, did not live and were not brought up jointly (Item 2 of article 90 of the Code).

As by the law it is not established that the specified rule extends only to full brothers and sisters, and owing to the subitem 13) of Item 1 of article 1 of the Code full and not full brothers and sisters are close relatives, the provision of Item 2 of article 90 of the Code should be applied also to cases of adoption by different faces of not full brothers and sisters. With respect thereto irrespective of whether it is specified in the statement for adoption or the materials attached to it about availability at the adopted child of full and not full brothers and sisters, to court it is necessary to find out at stage of preparation of case for legal proceedings whether the adopted child has full and not full brothers and sisters and whether they are subject to adoption.

11. Considering cases on adoption of the child - the citizen of the Republic of Kazakhstan, the citizens of the Republic of Kazakhstan who are constantly living outside the territory of the Republic of Kazakhstan, foreign citizens courts should mean the following:

1) adoption of children is allowed only in cases if it was not provided possible to transfer these children to education to families of the citizens of the Republic of Kazakhstan who are constantly living in the territory of the Republic of Kazakhstan (adoption, guardianship, guardianship, foster education, foster home or other forms of child placement, without parental support, provided by the law), or on adoption to relatives of children irrespective of the residence and nationality of these relatives (item 4 of article 84 of the Code).

For clarification of the specified circumstances courts need to request the body performing functions on guardianship or custody, the documents confirming impossibility of transfer of the child on education in seven citizens of the Republic of Kazakhstan or on adoption to the child's relatives irrespective of nationality and the residence of these relatives, data on registration of the adopted child for primary, regional accounting and also from authorized body in the field of protection of the rights of children of the Republic of Kazakhstan data on statement of the adopted child on centralized accounting. In case of research of the called documents it is necessary to check since what time the child stays on the registry whether the three-months term of statement on centralized accounting expired, whether the child on education or adoption was offered citizens of the Republic of Kazakhstan or the child's relatives if it was offered, then for what reason they refused acceptance of the child in family, to interrogate relatives and persons who refused adoption of this child whether applications for acquaintance with information about the child and refusal of adoption or acceptance on education in family were signed by them;

2) the citizens applying for adoption of the child - the citizen of the Republic of Kazakhstan and registered in accordance with the established procedure through accredited adoption agencies, shall provide to court the conclusion of competent authority of the state which citizens they are or have the permanent residence, about conditions of their life and about opportunity to be adoptive father, permission of competent authority to entrance of the adopted child from the Republic of Kazakhstan to the host state. In case of research court of the conclusion about living conditions of these citizens and about opportunity to be adoptive parents, constituted by the foreign organization for adoption (adoption agency), it is necessary to check whether powers are conferred to this organization to constitute such conclusions on behalf of competent authority of the relevant state.

12. In case of verification of the documents confirming the right of person to be adoptive father it must be kept in mind that the fact of availability or lack of criminal record shall be confirmed only with competent authority of the country of accommodation of person wishing to adopt the child.

In case of adoption of the child who is the citizen of the Republic of Kazakhstan, foreign citizens having the residence permit of the foreigner in the Republic of Kazakhstan, the court shall request the documents on availability or lack of criminal record constituted by competent authorities of the country which citizens they are, and competent authorities of the Republic of Kazakhstan for the period of residence of these citizens in the Republic of Kazakhstan.

Checking whether are available for applicants of the diseases listed in the List of diseases in the presence of which person cannot adopt the child accept it under guardianship or custody, patronage, it is necessary to research the medical certificate issued in the country of accommodation of applicants. In case of doubt in their admissibility and sufficiency as proofs the court has the right to suggest adoptive parents to undergo physical examination in medical institutions of the Republic of Kazakhstan.

In case of adoption of the child who is brought up in the organizations for orphan children and children without parental support, the court should make sure that candidates for adoptive parents stay on the registry of persons wishing to adopt children.

12-1. Persons who did not have psychological training according to the procedure, stipulated in Item 4 articles 91 of the Code (except for close relatives of the child) (the subitem 15) of Item 2 of article 91 of the Code) cannot be adoptive parents.

This restriction does not extend to persons who are or were adoptive parents and concerning whom adoption was not cancelled, and persons who are or were guardians (custodians) of children and were not discharged of execution of the obligations assigned to them.

It must be kept in mind that psychological preparation is obligatory for the citizens of the Republic of Kazakhstan who are constantly living in the territory of the Republic of Kazakhstan, persons interested to accept orphan children, children without parental support, on education in the family (item 4 of article 91 of the Code).

Such preparation is performed by the organizations for rendering assistance in the device of orphan children, children without parental support, in families of citizens of the Republic of Kazakhstan, and also the organizations of education for orphan children, children without parental support, at the expense of means of the specified organizations.

Requirements to contents of the program of psychological preparation, procedure for the organization of activities for psychological preparation and form of the certificate on passing of such preparation are approved by the Order of the Minister of Education and Science of the Republic of Kazakhstan of April 27, 2020 No. 165 "About approval of requirements to contents of the program of psychological preparation, procedure for the organization of activities for psychological training of the citizens of the Republic of Kazakhstan who are constantly living in the territory of the Republic of Kazakhstan, persons interested to accept orphan children, children without parental support, on education in the family and forms of the certificate on passing of such preparation.

13. Adoption of children by foreigners is allowed only to citizens of the country having the international obligations, equivalent with the Republic of Kazakhstan, in the field of protection of the rights and interests of children. For the purpose of clarification of the specified circumstances it is necessary to check the fact of ratification and recognition by the country of adoptive parents of number of Conventions in the field of protection of the rights of the children ratified by the Republic of Kazakhstan and also availability of the bilateral agreements about rendering legal assistance signed between the Republic of Kazakhstan and the country of adoptive parents.

14. The citizens of the Republic of Kazakhstan who are constantly living in the territory of the Republic of Kazakhstan persons interested to adopt children, shall choose personally the child and have with him direct contacts at least two weeks. The citizens of the Republic of Kazakhstan who are constantly living outside the Republic of Kazakhstan and the foreigners applying for adoption of the child shall have with the child direct contact at least four weeks. These terms shall be observed by specified persons before filing of application about adoption in court.

The application for adoption submitted before the expiration of these terms according to the subitem 1) of Article part one 152 GPK returns to the applicant as the law obliges adoptive parents to get acquainted personally at the scheduled time with the adopted child, during judicial session the court should research circumstances of communication of applicants with the adopted child, to be convinced of establishment of contact between them.

15. Court according to Article part two 19, Article 314 GPK consider cases of this category in the closed judicial session, including judgment announcement. That hearing of cases about adoption in the closed judicial session is provided by the law the judge at stage of preparation of case shall make such decision and specify about it in determination about purpose of case to legal proceedings.

In judicial session the court shall warn persons who are involved in consideration of the case about nondisclosure of the data which became to them known in the course of consideration of the application, and possibility of attraction them to criminal liability for disclosure of secrecy of adoption that shall be reflected in the protocol of judicial session in writing or in the brief protocol and audio recording of judicial session.

16. Owing to Item 1 of Article 84, of Item 1 of article 91 of the Code adoption is allowed concerning minor children only in their interests taking into account opportunities of providing with adoptive parents of full physical, mental, spiritual and moral development of the adopted child.

In case of adoption it is necessary to understand creating favorable conditions (both material, and moral nature) for their education and all-round development as interests of children.

In case of decision about adoption courts should check and consider moral and other personal qualities of the adoptive father, and also the members of his family living together with it (the data characterizing their behavior at work in life, the facts of attraction to the criminal, administrative responsibility, etc.), the state of health of the adoptive father and the members of his family living together with it, the relations which developed in family between family members, the relations which arose between the adoptive father and the child, family members and the child, line item of family members concerning adoption of the child and also material and housing conditions of life of future adoptive parents.

These circumstances equally shall be considered in case of adoption of the child as strangers, the stepfather, the stepmother, and the child's relatives.

17. Owing to requirements of Items 1 and 2 of article 100 of the Code the adopted children and their posterity in relation to adoptive parents and their relatives, and adoptive parents and their relatives in relation to the adopted children and their posterity are completely equated in personal non-property and property rights and obligations to relatives by origin. The adopted children lose the rights stated above and are exempted from obligations in relation to the blood parents.

The mentioned consequence in law come irrespective of record of adoptive parents as parents in the birth record of this child. The exception is constituted by cases when one of parents of the adopted child died also close relatives from this parent, proceeding from interests of the child, ask about preserving the rights and obligations of relatives of the dead in relation to adopted.

By court personal non-property and property rights and obligations of one of parents can be also kept in case the child is adopted only by one person, and about it ask the father if the adoptive father - the woman, or mother if the adoptive father - the man (Item 3 of article 100 of the Code). In this connection to courts it is necessary to explain by preparation of case for legal proceedings to specified persons possibility of preserving personal non-property and property rights of one of parents adopted or relatives of his died parent.

About preserving the relations of the adopted child with one of parents or with relatives of the died parent it is specified in the judgment about adoption of the child.

18. In substantive provisions of the decision on adoption by which the application of adoptive parents (adoptive father) was granted it is necessary to specify about satisfaction of request for adoption of the child by applicants (applicant), about recognition of the child adopted by particular persons (person) and also about need to make corresponding changes to the birth statement, including about record of adoptive parents (adoptive father) as parents in the blotter of births, about change of surname, name, middle name, birth date and birth place of the child if such request contains in the statement and the child who reached the age of 10 years, and also about preserving personal non-property and property rights of one of parents adopted or relatives of his died parent is agreed if these questions were positively resolved by court at the request of the applicant or interested persons. In case of change of surname and the middle name adopted data are specified on surname and name of adoptive parents (adoptive father), further change of writing of surname and middle name of the adopted child by traditions of the Kazakh people is made by authorized state body in accordance with the established procedure.

Change of nationality of the child in case of adoption is not included into competence of court and change of the birthplace of the child by court perhaps only within the territory of the Republic of Kazakhstan (Item 1 of article 98 of the Code) is determined according to article 65 of the Code, and.

It must be kept in mind that according to Item 2 of article 10 of the Law of the Republic of Kazakhstan of January 12, 2007 "About national registers of identification numbers" individual identification number is conditionally excluded No. 223-III from the National register of individual identification numbers after entry into force of the judgment about adoption (adoption) in case of change of information about the adopted child, its personal data.

In substantive provisions of the decision it is necessary to specify about explanation to adoptive parents of provision of item 4 of article 86 of the Code about need of provision of reports on living conditions, training, education and about the state of health of the adopted child in form and according to Rules and terms of provision of the report on living conditions, training, education and about the state of health of the adopted child and his forms, approved by the Order of the Minister of Education and Science of the Republic of Kazakhstan of September 7, 2016 No. 551.

19. In the presence of the exceptional circumstances which are directly infringing on interests of the child, court according to Article 244 GPK has the right to turn at the request of the applicant the decision to immediate execution, having stated motives for which he came to conclusion about need of immediate execution of the judgment (for example, urgent hospitalization of the course of treatment adopted for carrying out or surgery is required, and the delay threatens life and health of the child).

20. The code provides the bases of both adoption cancellation, and adoption recognition by invalid.

His parents, the adoptive father's spouse, the child's adoptive parents, the adopted child who reached age of 14 years, the body performing functions on guardianship or custody and also the prosecutor for the benefit of the child have rights to require cancellation of adoption of the child according to article 108 of the Code.

Requirement about cancellation of adoption is imposed in the presence of the bases, stipulated in Item 1 article 106 of the Code. It is necessary to draw the attention of courts that the requirement about adoption cancellation, but not about deprivation of the parent rights as the parent rights and obligations arise at adoptive parents as a result of adoption, but not origin of children from them shall be subject of action.

Clarification of consent of the child to cancellation of adoption in cases, stipulated in Item 1 article 106 of the Code, is not required.

The court according to Item 2 of article 106 of the Code has the right to cancel adoption of the child and in the absence of guilty behavior of the adoptive father, proceeding from interests of the child and taking into account his opinion. In particular, it is possible to carry to such circumstances: not developed relations between the adoptive father and adopted owing to their personal qualities; identification after the adoption of intellectual inferiority or heritable variations in the state of health of the child significantly complicating or making impossible education process about which availability the adoptive father was not warned in case of adoption; recovery of capacity to act of parents of the child to whom he is strongly attached cannot forget them that has an adverse effect on its emotional condition, etc.

The claim for cancellation of adoption is considered by court according to the procedure of claim production with obligatory involvement of adoptive parents, the body performing functions on guardianship or custody and also the prosecutor (Item 2 of article 107 of the Code).

21. According to article 103 of the Code adoption is nullified by court in cases:

1) decision makings of court about adoption on the basis of false documents;

2) making of adoption without the consent of persons specified in article 93 of the Code;

3) adoptions by person who is married (matrimony), without written consent other spouse;

4) violations of provisions, stipulated in Item 2 articles 91 of the Code.

Parents adopted, spouses of the adoptive father, person whose rights are violated by adoption, the prosecutor, the body performing functions on guardianship or custody have the right to impose on invalid requirement about adoption recognition.

According to Item 3 of article 103 of the Code, when considering the case about adoption recognition invalid participation of adoptive parents, prosecutor and representative of the body performing functions on guardianship or custody, surely.

22. It is necessary to consider that within three working days from the date of the introduction in legal force of the judgment about adoption of the child the statement from this decision shall be sent to registering body and to the body performing functions on guardianship or custody for the place of decision about adoption, and the statement from the judgment about cancellation of adoption and recognition of adoption invalid in the same time shall be sent to the registering body and bodies performing functions on guardianship or custody for the place of state registration of the birth (Article 88 and item 4 of article 105 of the Code).

In case of cancellation of adoption by foreign citizens or adoption recognitions invalid the statement from the judgment shall be sent to Committee on protection of the rights of children of the Ministry of Public Education of the Republic of Kazakhstan for the solution of question of return of the child - the citizen of the Republic of Kazakhstan in country of source based on Item 1 of article 21 of the Convention on protection of children and cooperation concerning foreign adoption.

22-1. If by hearing of cases about adoption, adoption recognition invalid or about adoption cancellation the court reveals cases of violation of legality or will find in actions of the party, other participants of process, the official or other person signs of criminal offense, it according to Article 270 GPK takes out private determination.

23. Recognize invalid:

1) the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 22, 2000 No. 17 "About some questions of application by courts of the legislation on scrap (matrimony) and family by hearing of cases about adoption (adoption) of children";

2) the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 25, 2006 No. 10 "About modification and amendments in the resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan of December 22, 2000 No. 17 "About some questions of application by courts of the legislation on scrap and family by hearing of cases about adoption (adoption) of children";

3) the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 22, 2008 No. 14 "About introduction of amendments to the normative resolution of the Supreme Court of the Republic of Kazakhstan of December 22, 2000 No. 17 "About some questions of application by courts of the legislation on scrap and family by hearing of cases about adoption (adoption) of children".

24. According to article 4 of the Constitution this normative resolution is included the law in force, is obligatory and becomes effective from the date of the first official publication.

Chairman of the Supreme Court of the Republic of Kazakhstan

K. Mami

Judge of the Supreme Court of the Republic of Kazakhstan, secretary of plenary meeting

K. Shaukharov

 

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