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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of November 14, 2017 No. 44

About practice of application by courts of the legislation in case of the dispute resolution, the rights connected with protection and legitimate interests of the child in case of direct threat of his life or to health, and also in case of restriction or deprivation of the parent rights

Each child has the right to live and be brought up in family, the right to cohabitation with parents and education by them, and also the right not to be separated from the parents contrary to their desire, except as specified, when competent authorities, according to the judgment, determine according to the applicable law and procedures that such separation is necessary in the best interests of the child (Item 1 of Article 8, Item 1 of article 9 of the Convention on the Rights of the Child, Item 2 of article 54 of the Family code of the Russian Federation).

For the purpose of ensuring unity of practice of application by courts of the legislation in case of the dispute resolution, connected with restriction or deprivation of the parent rights, and also confiscation of the child in case of direct threat of his life or to health, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:

General provisions

1. The family code of the Russian Federation (further - the IC RF), having fixed priority in education of children for their parents, determined that the parent rights cannot be performed in contradiction with interests of the child; when implementing the parent rights parents have no right to do harm to physical and mental health of children, their moral development, and methods of education of children shall exclude the scornful, cruel, rough, degrading human dignity address, insult or exploitation of children (Item 1 of Article 63, Item 1 of Article 65 IC RF).

The parents performing the parent rights to the detriment of the rights and interests of children can be limited to court in the parent rights or are deprived of the parent rights (Item 1 of Article 65, Article 69, Article 73 IC RF).

In exceptional cases, in case of direct threat of life of the child or to his health the guardianship and custody body has the right according to Article 77 IC RF immediately to take away the child from parents (one of them) or from other persons on whose care it is, based on the act of executive body of the subject of the Russian Federation or the head of the municipality if the law of the subject of the Russian Federation local government bodies are given authority on guardianship and custody according to the Federal Laws (further - the act of executive body of the subject of the Russian Federation or the head of the municipality of confiscation of the child). In case of disagreement with the act of executive body of the subject of the Russian Federation or the head of the municipality of confiscation of the child parents or persons on whose care the child was can take a legal action with the claim for recognition of the specified act invalid and about return of the child to family.

2. Cases on restriction or on deprivation of the parent rights, on cancellation of restriction of the parent rights or on recovery in the parent rights, and also on recognition invalid the act of executive body of the subject of the Russian Federation or the head of the municipality of confiscation of the child and of return of the child to family are subject to permission district court at the place of residence (stay) of the defendant (articles 24 and 28 of the Civil Procedure Code of the Russian Federation, further - the CCP of the Russian Federation). If along with the claim for restriction or for deprivation of the parent rights the requirement about collection of child maintenance is declared (for example, the parent with whom the child lives), then such claim proceeding from provisions of part 3 of article 29 CCP of the Russian Federation can be made by the claimant in court in the place of his residence.

Resolving issue of acceptance to production of court of the action for declaration on these cases, it must be kept in mind that according to Item 1 of Article 54 IC RF the child are recognized person under the age of of eighteen years (age of majority).

If the child reached age of eighteen years or acquired full legal capacity before achievement of the called age as a result of emancipation or marriage (Item 2 of Article 21, Item 1 of Article 27 of the Civil code of the Russian Federation, further - the Civil Code of the Russian Federation), the judge taking into account provisions of Item 2 of Article of 61 IC RF refuses adoption of the action for declaration based on Item 1 of part 1 of article 134 CCP of the Russian Federation and if proceeedings are initiated, the court stops proceeedings according to the paragraph the second article 220 CCP of the Russian Federation.

3. Taking into account Article provisions 78 IC RF and articles 47 CCP of the Russian Federation cases of the specified category are considered by court with participation of guardianship and custody body which shall conduct examination of living conditions of the child and his parent (parents) concerning which, (which) the question of restriction or of deprivation of the parent rights, or person applying for education of the child (the parent (parents) who took a legal action with the claim for cancellation of restriction of the parent rights or for recovery in the parent rights, the parent (parents) or person on whose care the child was requiring return of the child who is taken away from them based on Article 77 IC RF) is raised.

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