The participation of the guardianship and guardianship authority in the consideration of disputes related to the upbringing of children
Paragraph 1 of Article 67 of the Code establishes that the protection of the rights and legitimate interests of a child is carried out by the parents or other legal representatives of the child, and in cases provided for by legislative acts of the Republic of Kazakhstan, by the body performing the functions of guardianship or guardianship. The legislation provides for the participation of the guardianship and guardianship authority in the consideration of disputes related to the upbringing of children, both as a party to the case and as a State body competent to give an opinion on the merits of the dispute, and this body also conducts a survey of the living conditions of children and persons applying for their upbringing. The study of cases has shown that in cases where the guardianship and guardianship authority is not a party to the case, it is involved in the case by some judges as an interested or third party. For example, according to the claim of J. K. on determining the place of residence of children (the juvenile court of South Kazakhstan Region), the guardianship and guardianship authority was involved in the case as an interested party, in the case of the claim of I. K. D. on determining the place of residence of the child, the Aktau City Department of Education was involved in the case as a third party who does not make independent claims. Whereas in these cases, the guardianship and guardianship authority has no interest in the merits of the dispute and it is wrong to involve it as a third party or an interested party.
The participation of the guardianship and guardianship authority in the consideration of disputes related to the upbringing of children
By virtue of the provisions of Articles 43, 56 of the CPC, the guardianship and guardianship authorities are the persons involved in the case as a State body competent to give an opinion on the merits of the dispute, designed to represent the interests of the child and protect the constitutional rights of the child. The basis for their participation in cases of disputes about children is the State's interest in the proper resolution of cases with an important social orientation and the protection of the interests of minors, who in most cases do not have the opportunity to participate independently in the process and protect their interests. The generalization showed that there are facts of improper performance by representatives of the guardianship and guardianship authority of the duties assigned to them. According to paragraphs 6, 7 of the Rules, guardianship and guardianship authorities, in accordance with the procedure established by law, ensure the protection of the rights and interests of children through participation in court in cases involving the deprivation or restriction of parental rights, restoration of parental rights, cancellation or invalidation of adoption, recognition of marriage concluded with a minor invalid, restriction or deprivation of the right of a minor to dispose of independently with monetary funds, as well as other matters in accordance with the Code. From the materials of the studied civil cases, it has been established that representatives of the guardianship and guardianship authority, who are duly notified of the time and place of the court session, often do not appear at the court session, do not inform about the reasons for non-appearance in court, ask to consider the case without their participation, which leads to repeated postponement of the hearing, since to resolve the dispute about the upbringing of a child without direct It is not possible for a representative of the guardianship authority to participate in the court session. In such cases, the courts, in accordance with part 1 of Article 270 of the CPC, issue private rulings that draw the attention of the leadership of the Educational Body to the improper performance by the guardianship and guardianship authorities of their functions to protect the rights of minors. For example, in a civil case against S. E. for determining the order of communication with a child, a private ruling was issued stating that court sessions were repeatedly postponed due to the failure of a representative of the State Institution "Department of Education of the city of Kentau" without valid reasons. A private ruling was sent to the Mayor of Kentau and the head of the Department of Education for appropriate measures (the Juvenile court of South Kazakhstan Region).
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