Legal Procedure for Separation of the Child from his or her Parents: Inconsistency of Provisions of Russian Legislation with International Conventions

Abstract

The purpose of the study is detection of contradictions in the provisions of international conventions and Russian legislation, which regulates relations between parents and a child, who lives separately from them (one of parents); formulation and motivation of proposals regarding elimination of contradictions. The author studies subjective (based on parents’ wishes) and objective (based on relevant government authority’s decision) prerequisites for separate residence of the child and parents (one of parents) as an actual separation. Grounds and procedures, legal effects of separation of the child from his or her parents (one of parents) are stated and studied, potential conditions for restoration of co-residence and communication of the child with parents (one of parents) are studied. The provisions of family legislation regarding deprivation of paternal rights and restriction of paternal rights in the context of exercise of the child’s power of communication with each of parents are criticized. The paper analyzes grounds, provided by the Family Code of the Russian Federation, for child and parents separation in terms of their consistency with requirements of The United Nations Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction. The neeed for taking into account child’s opinion and consent when establishing the regime of communication with parents (one of parents) is stated. Objective need for juridical terminology enhancement is demonstrated: development of “parental custody”, “right of access” and other notions. The need for amendments and additions in Russian legislation regarding provisions that enforce provisions of international acts in the area of child’s and parents’ rights protection is concluded.

DOI: 10.5901/mjss.2015.v6n3s3p65