On the practice of the courts' application of legislation on the adoption of children

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2016 No. 2.

     Having studied the practice of applying legislation on the adoption of children by courts and for the purpose of uniform application of the norms of the current marriage and family legislation, the plenary session of the Supreme Court of the Republic of Kazakhstan

    Decides:

The legislation of the Republic of Kazakhstan on the adoption of children at the national and international levels (hereinafter referred to as adoption) is based on the Constitution of the Republic of Kazakhstan and consists of the Code of the Republic of Kazakhstan "On Marriage and Family" (hereinafter referred to as the Code), the Law of the Republic of Kazakhstan dated August 8, 2002 No. 345-II "On rights of the Child in the Republic of Kazakhstan", Convention on the Rights of the Child (adopted by the United Nations General Assembly on November 20, 1989, ratified by Resolution of the Supreme Council of the Republic of Kazakhstan on June 8, 1994 No. 77-XIII) (hereinafter – Convention on the Rights of the Child), Convention on the Protection of Children and Cooperation in Respect of Foreign Adoption (ratified by the Law of the Republic of Kazakhstan dated March 12, 2010 No. 253-IV, entered into force for the Republic of Kazakhstan on November 1, 2010) (hereinafter – Convention on the Protection of Children and Cooperation in Respect of Foreign Adoption), normative resolutions of the Constitutional Council and the Supreme Court of the Republic of Kazakhstan, Resolutions of the Government of the Republic of Kazakhstan dated September 21, 2010 No. 966 "On measures to ensure the fulfillment by the Republic of Kazakhstan of obligations arising from the Convention on the Protection of Children and Cooperation in Respect of Foreign Adoption", dated March 30 2012 No. 380 "On Approval of the Rules for the transfer of children who are citizens of the Republic of Kazakhstan for adoption", dated July 10, 2014 No. 787 "On approval of the Rules for the Appointment, return and amount of a lump sum payment in connection with the adoption of an orphaned child and (or) a child left without parental care", Orders of the Minister of Education and Science of the Republic of Kazakhstan dated December 9, 2014 No. 513 "On approval of the Rules for the Accreditation of adoption agencies and organizations providing assistance in the placement of orphaned children, children left without parental care, in the families of citizens of the Republic of Kazakhstan", dated June 29, 2016 No. 407 "On approval of the Rules for registration of persons, who are citizens of the Republic of Kazakhstan, permanently residing in the territory of the Republic of Kazakhstan, wishing to adopt orphaned children, children left without parental care, dated January 16, 2015 No. 13 "On Approval of the Rules of Operation and the composition of the commission issuing an opinion on the possibility (impossibility) of issuing a permit for the transfer of children who are citizens of the Republic of Kazakhstan for adoption", dated January 16, 2015 No. 16 "On Approval of the Rules for the organization of registration of orphans and children left without parental care and access to information about them", Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated August 28, 2015 No. 692 "On approval of the list of diseases in which a person cannot adopt a child, take him under guardianship or guardianship, foster care" (hereinafter referred to as the List of diseases in which a person cannot adopt a child, take him under guardianship or guardianship, patronage), the order of I.O. Minister of Foreign Affairs of the Republic of Kazakhstan dated June 14, 2016 No. 11-1-2/262 "On Approval of the Rules for Registration of Persons who are Citizens of the Republic of Kazakhstan permanently Residing outside the Republic of Kazakhstan, foreigners wishing to adopt orphaned children, children left without parental care who are citizens of the Republic of Kazakhstan and other regulatory legal acts.

    The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication); dated 30.09.2021 No. 2 (effective from the date of the first official publication).

An application for the adoption of a child is submitted by citizens wishing to adopt a child to the court at the place of residence (location) of the child according to the rules of jurisdiction.

     Cases of child adoption are under the jurisdiction of specialized inter–district juvenile courts (part three of Article 27 of the Civil Procedure Code of the Republic of Kazakhstan - hereinafter CPC).

    Citizens of the Republic of Kazakhstan permanently residing outside the territory of the Republic of Kazakhstan, as well as foreign citizens, including in cases where they permanently reside in the territory of the Republic of Kazakhstan, also submit an application for adoption to the specialized inter-district juvenile court.

     At the request of the legal representative of a minor, filed before the completion of the preparation of the case for trial, cases of adoption applications may be considered or may be transferred to the district (city) court at the place of residence (location) of the child, with the exception of cases within the jurisdiction of district (city) courts located within the city of republican significance and the capital, regional centers (part three of Article 27 of the CPC).

    It should be borne in mind that a person who has applied for adoption acquires the rights of the child's legal representative only after the court decision on the adoption of the child enters into force, except in cases where the applicant is a guardian or trustee, foster parent (foster parents), foster carer or other substitute legal representative person responsible for the adoption of the child. in accordance with the legislation of the Republic of Kazakhstan, the care, education, upbringing, protection of the rights and interests of the child (subparagraph 12) of paragraph 1 of Article 1 of the Code).

    The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

When accepting an application for adoption, the court verifies whether the application in form and content meets the general requirements of Article 148 of the CPC for a statement of claim and the requirements of Article 311 of the CPC.

     Based on the specifics of cases in this category, the court must verify that the application contains information about the adoptive parents themselves, the children they wish to adopt, the place of residence (location) of the children, their parents, whether the children have full and half-siblings, requests for possible changes in the birth records of the children being adopted, and the circumstances which the Code connects with the possibility of being an adoptive parent, supporting evidence, as well as the presence of the necessary documents in the annex to the application, the list of which is contained in Article 312 of the CPC.

    If it is impossible for the applicant to obtain these documents, they must be requested by the court from the relevant authorities at the request of the applicant.

     When adopting children by relatives, the application must contain information about the location of the adoptive parents in a relationship with the biological parents of the children and attach documents confirming the relationship between the biological parents of the child and the adoptive parents (birth certificates, documents on the change of surname, court decisions on the establishment of kinship, etc.). When determining the circle of persons related to the relatives of an adopted child, the court should be guided by subparagraph 36) of paragraph 1 of Article 1 of the Code, according to which relatives are persons who are related and have common ancestors before great-grandparents. In the absence of evidence confirming family ties, the application is not subject to satisfaction, in which case the absence of other obstacles to the adoption of the child has no legal significance. The applicant should be informed about the need to comply with the procedure established by law for the adoption of a child.

    Note from <url>!      See the Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated 06/01/2023 No. 18.

     When adopting a child in respect of whom paternity has been established by the applicant's spouse, the conclusion of a molecular genetic examination confirming paternity in respect of the adopted child must be attached to the application. In the absence of such a conclusion, the application must be returned with reference to subparagraph 3) of the first part of Article 152 of the CPC due to the inconsistency of the application with the requirements of subparagraph 5) of the second part of Article 148 of the CPC.

    In order to prepare a case for trial, the court should clarify the motives for adoption in order to exclude the facts of adoption in order to obtain the status of a mother with many children or a family with many children, to access state benefits and benefits, to obtain a stay of execution and other benefits unrelated to the purposes of adoption.

     By virtue of the second part of Article 54 of the CPC, the participation of the prosecutor in civil proceedings is mandatory in cases where the protection of citizens who cannot defend themselves on their own is required, which include adopted children, and therefore the adoption case is subject to consideration with the mandatory participation of the prosecutor.

    Citizens of the Republic of Kazakhstan permanently residing outside the Republic of Kazakhstan, foreigners, including those with a residence permit in the Republic of Kazakhstan, who wish to adopt children, must provide written consent from the authorized body for the protection of children's rights of the Republic of Kazakhstan (the Committee for the Protection of Children's Rights) to initiate the adoption procedure.

    The application must be signed personally by the adoptive parent(s), and the application must not be submitted by anyone in the interests of the adoptive parents. When submitting an application in the form of an electronic document, it is certified by the electronic digital signature of each applicant.

The mandatory personal participation of adoptive parents in the court session does not exclude the possibility of the participation of authorized representatives on the basis of Articles 57, 58, 60 of the CPC, who have the right, without the personal participation of the principal outside the trial stage, to collect and provide the necessary evidence, at the request of the judge to provide additional evidence, to raise the issue of assistance in requesting written and material evidence.

    The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

In accordance with subparagraph 8) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory Payments to the Budget (Tax Code)", applications (complaints) in special proceedings, with the exception of those specified in subparagraphs 2), 3), 4) and 13) of paragraph 1 of the above article, are charged a state fee. in the amount of 0.5 monthly calculation index (hereinafter – MCI), established by the Law on the Republican Budget and effective on the date of payment of the state fee.

    By virtue of the above, it should be borne in mind that since cases on applications for adoption are considered in a special rather than claim procedure, the state fee should be charged in the amount of 0.5 MCI, regardless of the number of adoptive parents (one adoptive parent or a married couple) and the children being adopted indicated in the application.

    The footnote. Paragraph 4, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication); dated 30.09.2021 No. 2 (effective from the date of the first official publication).

When adopting a found, abandoned (rejected) child, it is not enough to have a protocol or an act on the discovery of the child drawn up by the internal affairs body or the local executive body. When accepting applications for the adoption of such a child, the judge checks whether a copy of the birth certificate and the birth certificate confirming the registration of the child in accordance with Article 196 of the Code are attached to the application.

     If, at the time of filing an application for adoption, the found, abandoned (rejected) child is not registered in accordance with the procedure provided for in Article 196 of the Code, and it is impossible to eliminate this deficiency at the stage of pre-trial preparation of the case, the court, in accordance with subparagraph 3) of the first part of Article 152 of the CPC, must decide whether to return the application to the applicant in order to eliminate the circumstances preventing initiation of a case.

When considering cases of adoption of children of citizens of the Republic of Kazakhstan by foreigners, courts should keep in mind that foreigners enjoy procedural rights and perform procedural duties on an equal basis with citizens and legal entities of the Republic of Kazakhstan, unless otherwise provided by an international treaty ratified by the Republic of Kazakhstan (part two of Article 472 of the CPC).

    Documents issued, drawn up or certified in the prescribed form by the competent authorities of foreign states, committed outside the Republic of Kazakhstan in accordance with the laws of foreign states in respect of organizations of the Republic of Kazakhstan or foreign persons, are accepted by the courts of the Republic of Kazakhstan in the presence of consular legalization or apostille affixing, unless otherwise provided by legislation and (or) an international treaty of the Republic of Kazakhstan.

     At the same time, it should be borne in mind that the legalization of documents is not required in relations between the States parties to the Convention abolishing the requirement for the legalization of foreign official documents (The Hague, October 5, 1961), which entered into force for the Republic of Kazakhstan on January 30, 2001 (hereinafter – the Convention).

     In accordance with the requirements of articles 3 and 5 of the Convention, instead of the diplomatic or consular legalization of official documents in the States parties to the Convention, an apostille is affixed to the document by the competent authority of the State in which the document was executed to confirm the authenticity of the signatures of officials, seals or stamps. The Court should pay attention to the observance of the procedure for affixing the apostille provided for in Article 4 of the Convention, namely: the apostille is affixed to the document itself or on a separate sheet attached to the document, it must comply with the model attached to the said Convention.

    If an apostilled document issued by a foreign agency has a limited validity period that has expired by the time it is presented to the court, then it is necessary to resolve the issue of recognizing such a document as inadmissible evidence.

By virtue of Article 314 of the CPC, cases of child adoption must be considered with the mandatory participation of the adoptive parents themselves (the adoptive parent), representatives of the body performing the functions of guardianship or guardianship, as well as the prosecutor. It should be borne in mind that if the participation in a court hearing of adoptive parents, representatives of the body performing the functions of guardianship or guardianship is mandatory by law, then the parents (parent) or other legal representatives of the adopted child, his relatives and other interested persons, as well as the child himself, who has reached the age of ten years, the court may involve to participate in the case if necessary. When preparing a case for trial, the judge should decide whether to involve these persons in the case in order to ensure the interests of the child. When involving biological parents in the case, the judge must explain the legal consequences of the adoption.

     If the court comes to the conclusion that it is advisable to interview an adopted child who has reached the age of ten at a court hearing in order to clarify his opinion on the issue under consideration, the court should first find out the opinion of the body performing guardianship or guardianship functions so that the child's presence in court does not adversely affect him. Along with this, the courts should take into account the provisions of article 12 of the Convention on the Rights of the Child and article 62 of the Code, according to which a child, regardless of age, has the right to freely express his opinion on all issues affecting his interests, as well as to be heard during any judicial or administrative proceedings.

    When interviewed at a court hearing with the participation of a psychologist, it is necessary to find out whether the child's opinion is the result of the influence of one of the parents or other interested parties on him, whether he is aware of his own interests when expressing this opinion and how he justifies it.

    If, for health reasons, a child who has reached the age of ten cannot appear at a court hearing (for example, the child has been disabled since childhood and is restricted in movement), the court, taking into account the interests of the child, can find out his opinion regarding adoption at his place of residence.

    The footnote. Paragraph 7, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication); dated 30.09.2021 No. 2 (effective from the date of the first official publication).

If the child has parents, their consent is a prerequisite for adoption. Parental consent to the adoption of a child must be expressed in an application notarized or certified by the head of the institution where the child is without parental care, or by the body responsible for guardianship or guardianship at the place of adoption of the child or at the place of residence of the parents, and may also be expressed directly in court during the adoption process. The consent to adoption given by the parent in court must be reflected in the protocol (short protocol) and signed by him personally, as well as reflected in the decision. Taking into account that this category of cases is considered in a closed court session, the court has the right, at the request of the applicants, not to conduct audio-video recording of the process, in which case a full protocol of the court session is drawn up.

    Based on the priority of the parents' rights, it should be noted that any of them may revoke their prior consent to adoption before making a decision, regardless of the motives that prompted them to do so (article 93 of the Code). In this case, the court makes a decision to refuse to satisfy the adoption requirement.

     The requirement of the law on the need for parental consent to adopt a child also applies to children who have parents (parents) and are under the care (guardianship) of educational, medical, therapeutic and preventive institutions, social protection institutions and other similar institutions, except in cases provided for in Article 94 of the Code.

    When adopting a child of minor parents who have not reached the age of sixteen, the consent of legal representatives is also required. In the absence of legal representatives of minor parents, or if a child is abandoned by minor parents in a medical organization after birth and no one is interested in his fate for more than three months, the consent of the body performing the functions of guardianship or guardianship is required.

     In accordance with paragraph 7 of Article 77 of the Code, adoption of a child in case of deprivation of parental rights by parents is allowed after six months from the date of entry into force of the court decision on deprivation of parental rights. The adoption of a child, one of whose parents is deprived of parental rights, is allowed with the consent of the other parent.

    The refusal of the guardian (trustee) or the heads of the above–mentioned institutions to consent to adoption, unlike the refusal of parents to adopt, does not prevent the court from positively resolving the issue of adoption if the interests of the child require it (paragraphs 1, 4-6 of Article 93 of the Code).

Article 94 of the Code restricts the court's right to demand other documents confirming the parents' consent to adoption if there is a duly executed written application for the child's abandonment at the medical organization of the unmarried mother (matrimony). In this case, the court should check whether the mother's consent to adopt the child has been revoked at the time of the court hearing by sending a request to the notary chamber, the guardianship or guardianship authorities, or the head of the medical organization, depending on who issued the child's rejection and consent to adoption.

The adoption of a child by one of the spouses requires the written consent of the other spouse for adoption, if the child is not adopted by both spouses (article 96 of the Code).

     The exception is cases where the court considering the adoption application finds that the spouses have terminated family relations, have not lived together for more than a year, and the applicant's spouse's place of residence is unknown. These circumstances can be established by evidence provided for in Article 63 of the CPC (witness statements on the termination of family relations between spouses, certificates from address services, internal affairs bodies on the results of the search, etc.), as well as a court decision that has entered into legal force declaring this spouse missing.

    When adopting a child by one spouse, the court should clarify the relationship that has developed in the adoptive parent's family, establish the motive and reason for the refusal of adoption by the other spouse, whether there are circumstances that exclude the right of this spouse to be an adoptive parent under the law, and whether the totality of established circumstances corresponds to the interests of the adopted child.

The adoption of brothers and sisters raised in the same family by different persons is not allowed, except in cases where the adoption is in the best interests of the children and the children do not know about their relationship, did not live and were not raised together (paragraph 2 of Article 90 of the Code).

     Since the law does not establish that this rule applies only to full-siblings, and by virtue of subparagraph 13) of paragraph 1 of article 1 of the Code, full-siblings and half-siblings are close relatives, the provision of paragraph 2 of article 90 of the Code should also apply to cases of adoption by different persons of half-siblings. In this regard, regardless of whether the adoption application or the materials attached to it indicates that the adopted child has full and half siblings, the court should, at the stage of preparing the case for trial, find out whether the adopted child has full and half siblings and whether they are subject to adoption..

    The footnote. Paragraph 10 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

When considering cases of adoption of a child of a citizen of the Republic of Kazakhstan, by citizens of the Republic of Kazakhstan permanently residing outside the territory of the Republic of Kazakhstan, and by foreign citizens, courts should keep in mind the following:

    1) adoption of children is allowed only in cases where it was not possible to transfer these children to the families of citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan (adoption, guardianship, guardianship, foster care, foster family or other forms of placement of children left without parental care provided for by law), or for adoption relatives of children, regardless of the place of residence and citizenship of these relatives (paragraph 4 of Article 84 of the Code).

    To clarify these circumstances, the courts must require from the body performing the functions of guardianship or guardianship, documents confirming the impossibility of transferring a child to a family of citizens of the Republic of Kazakhstan or for adoption to relatives of the child, regardless of the nationality and place of residence of these relatives, data on the registration of the adopted child for primary, regional registration, as well as from the authorized body in the field of protection of the rights of children of the Republic of Kazakhstan, data on the registration of an adopted child on centralized registration. When examining these documents, it should be checked from what time the child has been registered, whether the three-month period for centralized registration has expired, whether the child has been offered for upbringing or adoption to citizens of the Republic of Kazakhstan or relatives of the child, if so, for what reason they refused to accept the child into the family, to interrogate relatives and persons who refused from the adoption of this child, have they signed applications for familiarization with information about the child and refusal of adoption or adoption into a family;

    2) citizens applying for the adoption of a child who is a citizen of the Republic of Kazakhstan and registered in accordance with the established procedure through accredited adoption agencies must submit to the court the conclusion of the competent authority of the state of which they are citizens or have permanent residence on their living conditions and the possibility of being an adoptive parent, the permission of the competent authority for the entry of the adopted child from the Republic Kazakhstan to the host state. When examining by the court the conclusion on the living conditions of these citizens and on the possibility of being adoptive parents drawn up by a foreign adoption organization (adoption agency), it is necessary to check whether this organization has been given the authority to draw up such conclusions on behalf of the competent authority of the relevant State.

    The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).

When checking documents confirming a person's right to be an adoptive parent, it should be borne in mind that the fact of having or not having a criminal record should be confirmed only by the competent authority of the country of residence of the person wishing to adopt a child.

    In case of adoption of a child who is a citizen of the Republic of Kazakhstan by foreign citizens who have a residence permit for a foreigner in the Republic of Kazakhstan, the court is obliged to request documents on the presence or absence of a criminal record drawn up by the competent authorities of the country of which they are citizens and the competent authorities of the Republic of Kazakhstan for the period of residence of these citizens in the Republic of Kazakhstan.

     When checking whether the applicants have any diseases listed in the List of Diseases for which a person cannot adopt a child, take him under guardianship or guardianship, or foster care, it is necessary to examine the medical certificate issued in the applicants' country of residence. In case of doubt about their admissibility and sufficiency as evidence, the court has the right to invite the adoptive parents to undergo a medical examination in medical institutions of the Republic of Kazakhstan.

    In the case of the adoption of a child raised in organizations for orphans and children left without parental care, the court should make sure that the candidates for adoptive parents are registered with persons wishing to adopt children.

    The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

     12-1. Adoptive parents may not be persons who have not received psychological training in accordance with the procedure established by paragraph 4 of Article 91 of the Code (with the exception of the child's close relatives) (subparagraph 15) of paragraph 2 of Article 91 of the Code).

    This restriction does not apply to persons who are or have been adoptive parents and in respect of whom the adoption has not been canceled, and persons who are or have been guardians (trustees) of children and have not been suspended from fulfilling their duties.

    It should be borne in mind that psychological training is mandatory for citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan who wish to adopt orphaned children, children left without parental care, to be raised in their family (paragraph 4 of Article 91 of the Code).

    Such training is provided by organizations that assist in the placement of orphaned children, children left without parental care, in the families of citizens of the Republic of Kazakhstan, as well as educational organizations for orphaned children, children left without parental care, at the expense of these organizations.

    The requirements for the content of the psychological training program, the procedure for organizing psychological training activities and the form of the certificate of completion of such training were approved by Order No. 165 of the Minister of Education and Science of the Republic of Kazakhstan dated April 27, 2020 "On Approval of the requirements for the content of the psychological training program, the procedure for organizing psychological training activities for citizens of the Republic of Kazakhstan permanently residing in the Territory of the Republic of Kazakhstan Kazakhstan, willing to accept orphaned children, children left without parental care, to be raised in your family and the form of a certificate of completion of such training.

    The footnote. The regulatory resolution was supplemented by paragraph 12-1, in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

Adoption of children by foreigners is allowed only to citizens of a country that has international obligations equivalent to the Republic of Kazakhstan in the field of protecting the rights and interests of children. In order to clarify these circumstances, it is necessary to verify the fact of ratification and recognition by the country of adoptive parents of a number of Conventions in the field of protection of children's rights, ratified by the Republic of Kazakhstan, as well as the existence of bilateral agreements on legal assistance concluded between the Republic of Kazakhstan and the country of adoptive parents.

Citizens of the Republic of Kazakhstan permanently residing in the territory of the Republic of Kazakhstan who wish to adopt children must personally choose a child and have direct contact with him for at least two weeks. Citizens of the Republic of Kazakhstan permanently residing outside the Republic of Kazakhstan and foreigners applying for the adoption of a child must have direct contact with the child for at least four weeks. These deadlines must be met by the specified persons before submitting an application for adoption to the court.

     An application for adoption submitted before the expiration of these terms, according to subparagraph 1) of the first part of Article 152 of the CPC, is returned to the applicant, since the law obliges adoptive parents to personally get acquainted with the adopted child within the prescribed time, during the court session the court should investigate the circumstances of the applicants' communication with the adopted child, make sure that contact is established between them.

In order to ensure the legally protected secrecy of adoption, the court, in accordance with the second part of Article 19, Article 314 of the CPC, considers cases of this category in a closed court session, including the announcement of a court decision. Taking into account that the consideration of adoption cases in a closed court session is provided for by law, the judge at the stage of preparing the case must make such a decision and indicate this in the ruling on the appointment of the case to trial.

    At the court session, the court must warn the persons participating in the case about the non-disclosure of information that became known to them during the consideration of the application and the possibility of bringing them to criminal responsibility for disclosing the secret of adoption, which should be reflected in the minutes of the court session in writing or in a short protocol and audio recording of the court session.

By virtue of paragraph 1 of Article 84, paragraph 1 of Article 91 of the Code, adoption is allowed in relation to minor children only in their interests, taking into account the possibilities for the adoptive parents to ensure the full-fledged physical, mental, spiritual and moral development of the adopted child.

    The interests of children during adoption should be understood as creating favorable conditions (both material and moral) for their upbringing and comprehensive development.

    When making a decision on adoption, courts should check and take into account the moral and other personal qualities of the adoptive parent, as well as members of his family living with him (information characterizing their behavior at work, at home, facts of criminal, administrative responsibility, etc. the state of health of the adoptive parent and the members of his family living with him, the relationships that have developed in the family between family members, the relationships that have arisen between the adoptive parent and the child, family members and the child, the position of family members on the issue of adopting a child, as well as the material and housing living conditions of future adoptive parents.

    These circumstances should be equally taken into account when adopting a child, both by outsiders, the stepfather, the stepmother, and the child's relatives.

    The footnote. Paragraph 16 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

By virtue of the requirements of paragraphs 1 and 2 of Article 100 of the Code, adopted children and their offspring in relation to adoptive parents and their relatives, and adoptive parents and their relatives in relation to adopted children and their offspring are fully equated in personal non-property and property rights and obligations to relatives by origin. Adopted children lose the above-mentioned rights and are released from duties towards their blood parents.

    The mentioned legal consequences occur regardless of the record of the adoptive parents as parents in the birth certificate of this child. The exception is cases when one of the parents of an adopted child has died and close relatives on the part of that parent, based on the interests of the child, ask for the rights and obligations of the relatives of the deceased in relation to the adopted child to be preserved.

    The court may also preserve the personal non–property and property rights and obligations of one of the parents in the case when the child is adopted by only one person, and this is requested by the father if the adoptive parent is a woman, or the mother if the adoptive parent is a man (paragraph 3 of Article 100 of the Code). In this regard, when preparing a case for trial, the courts should explain to these persons the possibility of preserving the personal non-property and property rights of one of the parents of an adopted child or relatives of his deceased parent.

    The preservation of the adopted child's relationship with one of the parents or with the relatives of the deceased parent is indicated in the court's decision on the adoption of the child.

    The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).

In the operative part of the adoption decision, which satisfied the application of the adoptive parents (adopter), it is necessary to indicate whether the applicants (applicant) have granted the request for adoption of the child, whether the child has been recognized as adopted by specific persons (person), as well as the need to make appropriate changes to the record of the birth certificate, including the record of the adoptive parents (adopter) as parents in the birth register, to change the surname, first name, patronymic, date and place of birth of the child, if such a request is contained in the application and the child's consent is given, who has reached the age of 10, as well as the preservation of the personal non-property and property rights of one of the parents of the adopted child or relatives of his deceased parent, if these issues were positively resolved by the court at the request of the applicant or interested persons. When changing the surname and patronymic of the adopted child, the data is indicated by the surname and first name of the adoptive parents (adopter), further changes in the spelling of the surname and patronymic of the adopted child according to the traditions of the Kazakh people are made by the authorized state body in accordance with the established procedure.

    Changing the nationality of a child in case of adoption is not within the jurisdiction of the court and is determined in accordance with article 65 of the Code, and changing the place of birth of a child by the court is possible only within the territory of the Republic of Kazakhstan (paragraph 1 of Article 98 of the Code).

     It should be borne in mind that according to paragraph 2 of Article 10 of the Law of the Republic of Kazakhstan dated January 12, 2007 No. 223-III "On National Registers of Identification Numbers", an individual identification number is conditionally excluded from the National Register of Individual Identification Numbers after the entry into force of the court decision on adoption, if information about the adopted child changes, his personal data.

     In the operative part of the decision, it should be indicated that the provisions of paragraph 4 of Article 86 of the Code on the need to provide reports on the living conditions, education, upbringing and health status of the adopted child should be explained to the adoptive parents in accordance with the Rules and deadlines for providing a report on the living conditions, education, upbringing and health status of the adopted child and its forms, approved by the Order of the Minister of Education and Science of the Republic of Kazakhstan dated September 7, 2016 No. 551.

    The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

In the presence of exceptional circumstances directly affecting the interests of the child, the court, in accordance with Article 244 of the CPC, has the right, at the request of the applicant, to apply the decision for immediate execution, stating the reasons for which he came to the conclusion that immediate execution of the court decision is necessary (for example, urgent hospitalization of the adopted child is required for treatment or surgery, and delay puts endangering the life and health of the child).

The Code provides grounds for both the cancellation of the adoption and the recognition of the adoption as invalid.

     In accordance with article 108 of the Code, the parents, the adoptive parent's spouse, the adoptive parents of the child, the adopted child who has reached the age of 14, the body performing the functions of guardianship or guardianship, as well as the prosecutor in the interests of the child have the right to demand the cancellation of the adoption of the child.

     The request to cancel the adoption is made if there are grounds provided for in paragraph 1 of Article 106 of the Code. It is necessary to draw the attention of the courts to the fact that the subject of the claim should be a claim for the cancellation of adoption, and not for the deprivation of parental rights, since parental rights and obligations arise for adoptive parents as a result of adoption, and not the origin of their children.

     Clarification of the child's consent to the cancellation of adoption in the cases provided for in paragraph 1 of Article 106 of the Code is not required.

     In accordance with paragraph 2 of Article 106 of the Code, the court has the right to cancel the adoption of a child even in the absence of culpable behavior of the adoptive parent, based on the interests of the child and taking into account his opinion. Such circumstances, in particular, include: the failed relationship between the adoptive parent and the adopted child due to their personal qualities; the identification after adoption of mental disability or hereditary abnormalities in the child's health, significantly complicating or making impossible the process of education, the presence of which the adoptive parent was not warned at the time of adoption.; restoring the legal capacity of the child's parents, to whom he is strongly attached, cannot forget them, which negatively affects his emotional state, etc.

    An application for the cancellation of an adoption is considered by a court in the order of claim proceedings with the mandatory involvement of the adoptive parents, the body performing the functions of guardianship or trusteeship, as well as the prosecutor (paragraph 2 of Article 107 of the Code).

In accordance with article 103 of the Code, an adoption is declared invalid by a court in the following cases::

1) adoption of a court decision on adoption based on forged documents;

     2) adoption without the consent of the persons specified in Article 93 of the Code;

    3) adoption by a married person without the written consent of the other spouse;

     4) violations of the provisions provided for in paragraph 2 of Article 91 of the Code.

    The parents of the adopted child, the spouse of the adoptive parent, persons whose rights have been violated by the adoption, the prosecutor, the body performing the functions of guardianship or guardianship may present a claim for recognition of the adoption as invalid.

It should be borne in mind that within three working days from the date of entry into force of the court's decision on the adoption of a child, an extract from this decision must be sent to the registration authority and to the body performing guardianship or guardianship functions at the place where the adoption decision was made, and an extract from the court's decision on the cancellation of the adoption and the recognition of the adoption as invalid It must be sent to the registration authority and the bodies performing guardianship or trusteeship functions within the same period., at the place of state registration of birth (Articles 88 and paragraph 4 of Article 105 of the Code).

     If the adoption by foreign citizens is cancelled or the adoption is declared invalid, an extract from the court decision must be sent to the Committee for the Protection of Children's Rights of the Ministry of Education and Science of the Republic of Kazakhstan to resolve the issue of returning the child, a citizen of the Republic of Kazakhstan, to the country of origin on the basis of paragraph 1 of article 21 of the Convention on the Protection of Children and Cooperation in Respect of Foreign Adoption.

    The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

     22-1. If, when considering cases of adoption, invalidating the adoption, or canceling the adoption, the court finds cases of violations of the law or finds signs of a criminal offense in the actions of a party, other participants in the process, an official or another person, it issues a private ruling in accordance with Article 270 of the CPC.

    The footnote. The regulatory resolution was supplemented by paragraph 22-1, in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 30.09.2021 No. 2 (effective from the date of the first official publication).

Invalidate them:

     1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000 No. 17 "On certain issues of application by courts of legislation on marriage (matrimony) and family in cases of adoption of children";

     2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 10 "On Amendments and Additions to Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000 No. 17 "On certain issues of Application by Courts of Legislation on marriage and family when Considering cases of adoption of children";

     3) regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 No. 14 "On Amendments to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2000 No. 17 "On certain issues of application by courts of legislation on marriage and family in cases of adoption of children".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

Chairman

The Supreme Court

Republic of Kazakhstan

Judge

The Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

K. MAMIE

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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