Conciliation procedures for reconciliation of the parties, in dispute settlement at all stages of the process

According to parts 1, 2 of Article 174 of the CPC, the court takes measures to reconcile the parties, assists them in settling the dispute at all stages of the process. The parties may settle the dispute in full or in part by concluding a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or using other methods in accordance with the procedure established by this Code. A generalization of judicial practice in cases of disputes over the upbringing of children has shown that courts often use the practice of resolving disputes by inviting the parties to conclude a settlement agreement or an agreement on the settlement of a dispute (conflict) through mediation. These actions of the courts deserve a positive assessment, as they contribute to the establishment of friendly relations between the parties and, therefore, meet the interests of the children and allow them to resolve the dispute without injuring the psyche and health of the child living with one of the parents.

 

Statistics show that conciliation procedures were mainly applied by the courts in cases of determining the place of residence of children and determining the order of communication with children. Thus, in 2017, 428 cases on disputes concerning the determination of a child's place of residence were completed with the use of conciliation procedures, while 530 cases were completed with the issuance of a decision. These figures in 2016 were 365 and 397, respectively. In cases of determining the order of communication with a child in 2016, 341 cases were completed with the use of conciliation procedures, with a decision – 288 cases, whereas in 2017 these figures amounted to 470 cases with the use of conciliation procedures and 360 cases with a decision. As a result of studying the materials of civil cases, the facts of court approval of mediation and settlement agreements were revealed without examining the living conditions of the child and the person claiming to raise him, as well as without clarifying the opinion of a child who has reached the age of ten. It seems that such judicial practice contradicts the current legislation. In accordance with part 2 of Article 48 of the CPC, the court does not accept the plaintiff's rejection of the claim, recognition of the claim by the defendant, and does not approve a settlement agreement of the parties or an agreement of the parties to settle a dispute (conflict) through mediation or an agreement to settle a dispute through a participatory procedure if these actions contradict the law or violate someone's rights, freedoms and legitimate interests. When approving a mediation or settlement agreement on a dispute related to the upbringing of children, the court must ensure that its terms do not contradict the law and do not violate the rights of the child (paragraph 4 of Article 177, paragraph 2 of Article 180 of the CPC). Meanwhile, in the absence of an act of examination by the guardianship and guardianship authority of the living conditions of the child and the person(s) claiming to raise him, as well as without clarifying the opinion of the child himself, who has reached the age of ten, whose right to expression is enshrined in article 12 of the Convention on the Rights of the Child and in article 62 of the Code, the court can hardly unequivocally and comprehensively resolve the issue of whether the terms of the settlement agreement violate the rights and legitimate interests of the child.

Example: The Lisakovsky city Court of the Kostanay region in a civil case on the claim of T. K. E. on determining the order of communication with children approved a mediation agreement without requesting an act of examination of the guardianship and guardianship authority of the living conditions of the child and the person(s) claiming his upbringing. Reconciliation procedures are conducted by individual courts in cases of deprivation or restriction of parental rights, in which proceedings are terminated due to the approval of a settlement agreement or an agreement on the settlement of a dispute through mediation. Example: By a ruling of the Atyrau Region Juvenile Court dated February 14, 2017, a settlement agreement was approved in a civil case involving the claim of the State Institution "Specialized Orphanage for Children with Central Nervous System Disorders" against M. on the restriction of parental rights. The court ruling states that the plaintiff refuses the claim. The defendant undertakes to take a minor child for his upbringing by July 15, 2017. Approving the settlement agreement, the court indicated that the defendant is not registered in psychiatric or drug treatment dispensaries and has no criminal record. At the same time, the question of whether the defendant has conditions for living and raising a child was not discussed by the court. Whereas in the statement of claim, the basis for the restriction of parental rights is indicated by the behavior of the mother, who, having no permanent place of residence, placed the child at the age of 1 in a children's institution until he turned 3, but did not pick him up and does not regularly visit him. On February 15, 2017, the same court in the case of deprivation of parental rights approved a settlement agreement between the KSU "Regional Orphanage for Orphans and children left without parental Care named after S. Kazybayeva" and A., according to which the plaintiff waives the claim, and the defendant undertakes to take three young children for his upbringing on February 15, 2017, that is, on the day of approval of the settlement agreement.  It follows from the statement of claim that the reason for depriving the defendant of parental rights is the defendant's lack of the necessary standard of living for full-fledged physical, mental, moral and spiritual development. Minor children were placed in a children's institution based on the decision of the akim of Aktau city as children left without parental care. While approving the settlement agreement, the court did not establish whether the defendant had created adequate conditions for the maintenance and upbringing of children. This practice of the courts seems to be incorrect. In this regard, it should be clarified that, based on the nature of disputes about the deprivation or restriction of parental rights, the use of conciliation procedures in such cases is unacceptable. 

  

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