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

Due to the change of the legislation on scrap (matrimony) and family and for the purpose of ensuring the most complete protection of the rights and the interests of minors protected by the law by consideration by courts of cases on adoption (adoption) of children (further in the text - adoption) the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. Draw the attention of courts that the law in force of the Republic of Kazakhstan about adoption at the national and international levels, is the Constitution of the Republic of Kazakhstan, the Convention on the Rights of the Child of November 20, 1989, the Convention on protection of children and cooperation concerning foreign adoption of May 29, 1993, the Code of the Republic of Kazakhstan "About scrap (matrimony) and family" of December 26, 2011 (further - the Code) of the Rule of transfer of the children who are citizens of the Republic of Kazakhstan, to adoption, approved by the order of the Government of the Republic of Kazakhstan No. 380 of March 30, 2012, Rules of implementation of the functions of the state on guardianship and custody approved by the order of the Government of the Republic of Kazakhstan No. 382 of March 30, 2012, the Rule of appointment and the amount of allowance payment to guardians or custodians on content of the orphan child (orphan children) and child(children), without parental support approved by the order of the Government of the Republic of Kazakhstan No. 383 of March 30, 2012, the Rule of accreditation of the agencies on adoption approved by the order of the Government of the Republic of Kazakhstan No. 385 of March 30, 2012, the Rule of accounting of persons wishing to adopt the children approved by the order of the Government of the Republic of Kazakhstan No. 386 of March 30, 2012, the Rule of activities and structure of the commission issuing the conclusion about possibility of issue of permission about transfer of the children who are citizens of the Republic of Kazakhstan, on adoption, approved by the order of the Government of the Republic of Kazakhstan No. 387 of March 30, 2012, the Rule of the organization of accounting of orphan children, children without parental support and subject to adoption, and information access about them approved by the order of the Government of the Republic of Kazakhstan No. 388 of March 30, 2012 and other corresponding regulatory legal acts, and also normative resolutions of the Constitutional Council and Supreme Court of the Republic of Kazakhstan.

2. According to Item 1 of article 87 of the Code cases on adoption are considered by court according to the procedure of special proceeding by the rules provided by the civil procedural legislation. Person wishing to adopt the child acquires the rights of the legal representative of the child only in case of satisfaction with court of its request and only after entry of decision into legal force (Item 1 of article 88 of the Code).

Considering stated, courts should mean that cannot be considered along with the statement for adoption of the requirement of the applicant for protection of property rights of the child (for example, about the property right of the child to the personal or real estate which carried over to it according to the gift agreement according to the procedure of inheritance or privatization of housing, etc.).

3. Adopting the statement for adoption, the court checks whether the statement on form and content conforms to requirements, stipulated in Article 150 Codes of civil procedure of the Republic of Kazakhstan (further in the text - 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 their parents, 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 the following necessary documents:

- the conclusion of the body performing functions on guardianship or custody at the place of residence (stay) of the child about justification and about adoption compliance to interests of adopted;

- act of inspection of living conditions of adoptive parents;

- copy of assembly record and certificate of birth of the child;

- the medical certificate of competent authority about the state of health, physical and intellectual development of adopted;

- the consent of parents to adoption of the child if it is required under the law;

- the consent of the child to adoption if the child reached age of 10 years;

- proofs, confirmatory that the applicant can be the adoptive father of this child.

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 the child by his stepfather or stepmother according to Item 3 of article 93 of the Code the conclusion of the body performing functions on guardianship or custody about justification and compliance of the adoption to interests adopted is not required.

The application shall be signed personally by the adoptive father (adoptive parents), filing of application by someone for the benefit of adoptive parents is inadmissible.

4. Courts need to mean that in case of adoption of the found or thrown 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. Concerning such child the copy of the birth statement and the certificate on its birth confirming registration of the child according to article 196 of the Code shall be enclosed to the application.

If at the time of filing of application about adoption the found or thrown child is not registered according to the procedure, stipulated in Article 196 Codes, then court according to articles 154 and 155 GPK shall resolve issue of leaving of the statement without movement or return to the applicant for elimination of the circumstances interfering initiation of proceedings.

5. In case of adoption of the child by the foreign citizen the court shall request also the applicant from the conclusion about living conditions and opportunity it to be adoptive father, this person issued by competent authority of the state which citizen he is, or the states, in which has the permanent residence, the document of diplomatic representation or consular establishment of the Republic of Kazakhstan confirming registration in the specified bodies of the foreign citizen as person wishing to adopt the child - the citizen of the Republic of Kazakhstan.

At the same time the court shall make sure that the child about whose adoption the foreign citizen or the citizen of the Republic of Kazakhstan who is constantly living abroad puts question stays on the centralized registry at least three months.

For verification of the specified requirements of the law the court should request data on registration of the adopted child for primary, regional and centralized accounting.

6. By hearing of cases about 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 of the Republic of Kazakhstan (part 2 Articles 413 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 citizens of the Republic of Kazakhstan or foreign persons are accepted by courts of the Republic of Kazakhstan in the presence of consular legalization if other is not provided by the law or the international treaty of the Republic of Kazakhstan.

Control of the children transferred to adoption to foreigners is performed by embassies or consular establishments of the Republic of Kazakhstan and authorized body in the field of protection of the rights of children of the Republic of Kazakhstan (Item 2 of article 251 of the Code).

Courts should mean that consular legalization is understood as giving of legal force - certification by the consul by the sign and seal of authenticity of signatures on any act or the document constituted within its consular district and approved by local authorities. Consular legalization is made when the document constituted abroad be shown in the country which appointed the consul and is required by the legislation of this state.

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 05, 1961) which became effective for the Republic of Kazakhstan on January 30, 2001.

According to requirements of Articles 3, of the 5th this 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, the competent authority of the state in which this document was made puts down apostille.

6-1. 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. This term shall be observed by them before filing of application about adoption in court.

The application for adoption submitted by the citizen of the Republic of Kazakhstan who is constantly living outside the Republic of Kazakhstan or the foreigner before the expiration of this term according to Article part one 155 GPK is subject to leaving without movement, and in case of failure to meet requirements, listed in determination about leaving of the statement without movement, returns to the applicant.

6-2. 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 non-recognition of such document by the admissible proof.

7. Cases on adoption of the child are considered with obligatory participation of the representative of the body performing functions on guardianship or custody. Besides, for the purpose of the maximum accounting of interests of the child the court shall recruit in the case of parents (parent) of the adopted child, his close relatives in the absence of parents, representatives of organization in which there is child without parental support, other interested persons, and also the child if it reached age of 10 years (Articles 93, 95 Codes, article 9 of the Convention on the Rights of the Child).

If the court comes to conclusion about feasibility of poll in judicial session of the adopted child who reached 10 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 presence of the child at court did not make on it adverse effect.

In case of poll 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.

8. For the purpose of providing the secrecy of adoption (article 91 of the Law) protected by the law, court according to Article 19 GPK according to the petition of persons participating in case, the case in the closed judicial session having the right to consider, including the announcement of the decision.

9. Permitting on the substance of the requirement about adoption, the court needs to discuss question of whether there are no bases excluding opportunity to be adoptive father for the applicant (Item 2 of Article 91, Item 1 of article 92 of the Code).

Proceeding from requirements of article 92 of the Code about need of age difference between the adoptive father and the adopted child at least 16 years and no more than 45 years, courts should mean that the Code allows reducing (increase) age difference for the reasons recognized by court valid (stay in the related relations or the child is attached to person wishing to adopt him and considers it the parent, etc.).

10. 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 and is signed by it personally, and also is reflected in the decision. However proceeding from priority of the rights of parents it is necessary to consider that any of them can withdraw 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 decides the decision on refusal in satisfaction of the requirement about adoption.

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

At the same time it must be kept in mind that 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 parents 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.

Refusal of the guardian (custodian), adoptive parents or heads of the organizations stated above to agree to adoption, unlike refusal of parents, 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).

11. In case of adoption of the child by one of spouses the written consent of other spouse to adoption is required 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 evidentiary facts, the stipulated in Article 64 GPK, and also the judgment which took legal effect about recognition of this spouse is unknown absent.

12. Adoption of brothers and sisters by different persons is not allowed, except as specified, when adoption is equitable to interests of children (for example, children are not informed on the relationship, did not live and were not brought up jointly, cannot live and be brought up together for health reasons).

13. In case of the solution of question of admissibility of adoption in each case it is necessary to check and consider moral and other personal qualities of the adoptive father (the circumstances characterizing behavior of the applicant at work in life, availability at the time of adoption of the outstanding or not removed criminal record for making of intentional crime), the state of his health, age which developed in family of relation, the relations which arose between these persons and the child and also material and housing conditions of life of future adoptive parents.

In case of verification of the documents confirming the right of person to be adoptive father, courts should mean 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.

For confirmation of correctness of transfer of the documents submitted by persons wishing to adopt children, courts if necessary should recruit in the case of the corresponding specialists.

14. 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).

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.

15. In substantive provisions of the decision on adoption it is necessary to specify about satisfaction of the requirement about adoption of the child by the applicant, and also about need to make corresponding changes to the birth statement, including about record of the adoptive father (adoptive parents) as the parent in the blotter of births if such request contains in the statement and the child who reached age of 10 years, about change of surname, name, middle name, birth date and birth place of the child, 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.

At the same time it is necessary to draw the attention of courts that change of nationality of the child in case of adoption is not included into competence of court and is determined according to article 65 of the Code.

16. Courts should mean that 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.

The requirement about cancellation of adoption can be delivered in the presence of the bases, stipulated in Item 1 article 106 of the Code. At the same time it is necessary to draw the attention of courts that the requirement shall be 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.

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

Court, proceeding from requirements of Item 2 of article 106 of the Code having 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 application 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).

17. 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.

18. Courts need to consider that within three 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 adoption (Article 88 and item 4 of article 105 of the Code).

19. In the presence of the exceptional circumstances which are directly infringing on interests of the child, court according to Article 238 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. Ceased to be valid

21. This resolution becomes effective from the date of its publication.

 

Chairman of the Supreme Court Republic of Kazakhstan

K. Mami

Secretary Plenuma, judge of the Supreme Court Republic of Kazakhstan

A. Zhukenov

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info