Persons who have the right to demand the cancellation of the adoption of a child

 

Persons who have the right to demand the cancellation of the adoption of a child include: the child's parents; the child's adoptive parents; the adoptive parent's spouse; the adopted child who has reached the age of fourteen; the body performing the functions of guardianship or guardianship; the prosecutor.  

From the content of Article 108 of the KBS, it is obvious that only interested persons have the right to demand the cancellation of adoption. Moreover, this interest may be of a personal nature (parents, adoptive parents of a child, an adopted child who has reached the age of fourteen), or arise from the functions of state and other bodies (the prosecutor, the body performing the functions of guardianship or guardianship).

Filing a claim by the guardianship authority or the prosecutor is necessary in cases where the child does not have parents or when, in the interests of the child, it is necessary to immediately make a decision to cancel the adoption if the culpable behavior of the adoptive parents is established (evading parenting duties or abuse of their rights, child abuse, immoral or antisocial behavior). behavior that has a harmful effect on the child, chronic alcoholism or drug abuse, etc.).

The prosecutor's right to apply to the court in defense of the rights and legitimate interests of others is directly provided for by law and follows from his authority to monitor compliance with legislation on human rights and freedoms. Moreover, the duty of the prosecutor's office staff directly includes filing and maintaining a claim in court in cases where the rights of persons who, for health reasons or age (for example, minors), cannot personally defend them are violated (art. 55 CPC; art. 29, part 2, paragraph 6 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office").

An adopted child who has not reached the age of fourteen cannot independently apply to the court with a request to cancel the adoption. However, the adopted child has the right to inform the guardianship authorities or the prosecutor about his desire to cancel the adoption (this is a situation where the fact of adoption is not a secret for the child). Government and public organizations, as well as citizens (relatives of an adopted child) who believe that the adoption is not in the best interests of the child, may do the same, since they themselves do not have the right to file a claim for the cancellation of the adoption. In such situations, the issue of whether to file a claim for the cancellation of an adoption is decided only by the body performing the functions of guardianship or the prosecutor.

A study of the cases showed that, in general, when considering cases on the cancellation of adoption, the requirements of the Marriage (Matrimony) and Family Code are respected by the courts. Cases are considered with the participation of the adoptive parents, the body performing the functions of guardianship and trusteeship, as well as the prosecutor.

As the cases studied show, the largest number of decisions on the cancellation of adoption are related to claims by adoptive parents against parents and parents against adoptive parents based on the interests of the child.

When considering cases in this category, procedural violations were identified, which should be noted.

Thus, Court No. 2 of the Mugalzharsky district of the Aktobe region, on March 20, 2015, considered B.'s claim for the cancellation of the adoption of a minor child, A., born on November 26, 1996, which the court satisfied.

The judge of the introductory part of the court decision did not indicate the participation of the plaintiff and the defendant, however, the case was considered with the participation of the plaintiff and the defendant. The reasons why she comes to this conclusion are not given.

The court concluded to satisfy the claim based on the arguments given by the plaintiff that the cancellation of B.'s adoption is in the interests of A., therefore, the specified adoption must be canceled.

Similar facts are found in other cases studied. Among the cases studied, there are claims by adoptive parents to cancel the adoption due to problems in the relationship with the adopted child due to the parent losing authority over the adopted child.

As an example, we should cite the case considered on March 19, 2014 by the Specialized Interdistrict Juvenile Court of the Karaganda region on the claim of S. and S. to the State Institution "Department of Education, Physical Culture and Sports of Shakhtinsk" on the cancellation of adoption, where the antisocial behavior of the adopted person was fully investigated.

The plaintiffs cite the inappropriate aggressive behavior of the adopted child as the reason for the cancellation of the adoption. To verify these arguments and investigate the child's behavior, the court engaged psychologists, who, based on the results of an examination of a minor child, gave a psychological assessment of his personality, which confirmed the mental abnormalities in the child indicated by the plaintiffs, as a result of which the adoption was canceled by the court.

Due to the fact that claims by adoptive parents on the above grounds are common in judicial practice, it is necessary to involve psychologists at the child's place of education for their objective consideration.

There is another extreme in decisions, when the volume of drafting a decision is reduced to the point that it loses the meaning of the circumstances of the case.

During the generalization, the issue of considering cases of this category in the appeal, cassation and supervisory procedures was not investigated due to the lack of such information in the ECCD database.

For the same reasons, the protests of prosecutors filed against judicial acts and their satisfaction were not investigated.

The conducted generalization showed that the courts mostly correctly apply the norms of substantive law governing legal relations when considering cases on the cancellation of adoption. At the same time, there are errors in the application of the rules of procedural law in the issuance of judicial acts, and the motivational and resolute part of the judicial act does not always comply with the requirements of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision".

In order to eliminate the mistakes made, the courts need to study more carefully the current legislation regulating both substantive and procedural law, as well as follow the Methodological Recommendations developed by the Supreme Court of the Republic of Kazakhstan for the correct and uniform drafting of judicial acts.

Basically, all decisions are made solely based on the interests of adopted children. Cases of this category did not cause difficulties for the courts during their consideration, therefore they were not subject to changes or cancellation.

The application of these norms is not particularly difficult, therefore, there are currently no proposals for improving legislation.

 

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