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Children's Rights' Provision by the Means of Civil Procedural Law in Disputes Regarding Children

ФИО студента: Tatiana Malina

Руководитель: Margarita Pavlova

Кампус/факультет: Faculty of Law

Программа: Lawyer in the Sphere of Justice and Law Enforcement (Master)

Оценка: 9

Год защиты: 2020

The protection of the rights and interests of children is an important objective of the Russian government. Nevertheless, the number of disputes over children rises annually, and minors’ rights and interests are inevitably affected by the judicial acts of such cases. Thus, it seems that children’s rights and interests need increased protection in those categories of disputes. However, civil procedural and family laws governing the procedure of disputes over children have serious problems and gaps in legal regulation that can lead to a violation of the children’s rights. For instance, the procedural status of minors is not regulated in disputes affecting their rights and interests. Meanwhile, the procedure for clarifying the views of a child also remains uncertain. Among other things, there is no legal regulation of the procedure for the participation of guardianship and custody bodies, also their specific duties are not fixed, which often leads to a formal approach of these bodies when preparing acts and conclusions for the court. There is a need to resolve the uncertainty regarding the pre-trial procedure of certain categories of disputes over children, as well as on many other problematic issues. Thus, these and other problems that currently exist when considering disputes over children determine the relevance of this research. The main goal of the present research is to identify the most significant and urgent problems that arise when considering disputes over children both at the stage of preparing cases and in court proceedings. To achieve this goal, this research analyzes the subjects participating in the case, as well as the procedure of disputes over children on the basis of the legislation of the Russian Federation, international legal acts, judicial practice, and doctrinal sources. As a result of the research, the author proposes possible ways of resolving the identified problems, including amendments and additions to the current procedural legislation. The master's thesis consists of an introduction, four chapters, and a conclusion. The first chapter examines the basic personal rights of the child, as well as the general procedural features of their protection in court. In the second chapter, the author explores the features of the subjective composition of persons participating in disputes over children. There is the research over the participation of the prosecutor and guardianship authorities, as well as the civil procedural status of the child when considering disputes affecting his rights and interests, the special attention is paid to the process of taking a child’s opinion into account by the court. The third chapter is devoted to the procedure of court proceedings over certain categories of disputes about children - disputes on determining the child’s place of residence, on the procedure for exercising parental rights by a separately living parent, on removing obstacles to communication with a child by his close relatives, on deprivation of parental rights and their restoration, as well as the restriction of parental rights and the cancellation of such a restriction. The fourth chapter discusses the procedure for resolving disputes over children with a foreign element. On the basis of the Code of Civil Procedure, international legal acts and judicial practice, the author researches the issue of jurisdiction and obtaining evidence in disputes over children with the participation of foreign citizens, as well as the procedure for disputes of a child’s return to a home country on the basis of international treaties of the Russian Federation.

Full text (added May 15, 2020)

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