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Judicial Protection of the Rights of the Children

Student: Gorozhankina Ekaterina

Supervisor: Elena Kudryavtseva

Faculty: Faculty of Law

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

Year of Graduation: 2021

The judicial protection of children's rights combines a fairly large number of disputes arising from the rights of children, enshrined in the Family Code (FC) of the Russian Federation: disputes about the place of residence of a child when parents live separately (clause 3, article 65 of the FC); on the exercise of parental rights by a parent living separately from the child (clause 2, article 66 of the FC); on deprivation of parental rights (clause 1 of article 70 of the FC; on the restriction of parental rights (clause 1 of article 73 of the FC); and many others. The master's thesis is devoted to the most «problematic» categories of disputes - disputes on deprivation of parental rights and determining the child's place of residence. The following are considered as problems arising in the consideration of disputes on the determination of the place of residence of children. 1. Despite the equality of rights and obligations of parents enshrined in the FC (article 61 of the FC), courts often initially put the father and mother of the child in an unequal position, giving priority to the mother. At the same time, there is no discrimination in cases where the court motivates the transfer of the child to the mother properly. 2. The procedure for communication between a separately living parent and a child, approved by the court, often contains vague formulations, such as by agreement with the parent, taking into account the opinion / interests of the child, the state of health, the regime of the child, and there is also no clear schedule, which creates an opportunity for abuse by the parent with whom the child's place of residence is determined. 3. Sometimes the courts do not pay enough attention to the «key person», namely the child and his interests. For example, the courts refuse to approve the procedure for communication with the child, according to which the time spent by each parent with the child is divided equally. 4. There are serious problems with the implementation of decisions on determining the place of residence of children and the procedure for communicating with them, since the question of whether it is possible to forcibly transfer a child is still open. 5. There is no definition of the concept of «child's interest». 6. The question of the possibility of separating brothers and sisters in determining their place of residence remains unresolved. No less «problematic» category of disputes is the dispute about deprivation of parental rights. Despite the fact that judicial statistics indicate a decrease in the number of claims filed for deprivation of parental rights, the number of persons deprived of parental rights is quite large. The grounds for deprivation of parental rights, enshrined in article 69 of the FC of the Russian Federation, are formulated quite broadly, as a result of which the courts have questions when considering this category of cases: what is meant by evasion of parental responsibilities, for any evasion it is possible to deprive parental rights, if not, then where is the «line», crossing which parents risk «losing» their child, what is meant by abuse of parental responsibilities, and so on. The judicial practice described in the work shows that often the courts either «too literally» or «too broadly» interpret the grounds for deprivation of parental rights, establishing evasion of parental responsibilities with poor furniture in the house, for attending unauthorized rallies, for non-payment of housing and utilities and the like, which does not «fit» not only into the framework of the law, but also common sense. Thus, at the moment there are many gaps in the legislation in the field of judicial protection of children's rights, there is an insufficient clarification of the Supreme Court in this area. Master's thesis, describes these problems and possible ways to solve them.

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