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NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of November 29, 2018 No. 15

About application of the legislation by courts in case of the dispute resolution, the children connected with education

For the purpose of ensuring protection of the rights and the interests of minors protected by the law in case of permission with courts of the disputes connected with education of children, and also the correct and uniform application of regulations of the Code of the Republic of Kazakhstan "About scrap (matrimony) and family" (further - the Code) the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. Considering the disputes connected with education of children courts shall be guided by the Code and other regulatory legal acts. In cases if the international treaties ratified by the Republic of Kazakhstan establish other rules, than those which contain in regulatory legal acts it is necessary to be guided by them.

2. Resolving issue of acceptance to production of court of the action for declaration on the disputes connected with education of children it must be kept in mind that according to the subitem 8) Item 1 of article 1 of the Code the child the person under the age of of eighteen years (age of majority) is recognized.

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 (Article 17, of 22-1 Civil code of the Republic of Kazakhstan (further – group of companies)), the judge taking into account provisions of Item 2 of article 68 of the Code refuses adoption of the action for declaration based on the subitem 1) to part one of Article 151 of the Code of civil procedure of the Republic of Kazakhstan (further – GPK) and if proceeedings are initiated, then it is subject to the termination according to the subitem 1) of Article 277 GPK.

By preparation of case for legal proceedings the judge should determine correctly the circumstances which are important for permission of the arisen dispute and subject to proof by the parties, having paid special attention on those from them which characterize personal qualities of the parents or other persons who are bringing up the child and also the developed relations of these persons with the child.

Hearing of cases about determination of the residence of the child, about procedure of the parent rights the parent living separately from the child about recovery in the parent rights, about restriction of the parent rights, about cancellation of consequences of restriction of the parent rights, about return to parents, guardians (custodians), the foster tutor of the child withheld not based on the law or the judgment is made by court with participation of the bodies performing functions on guardianship or custody, and hearing of cases about deprivation of the parent rights, besides, with participation of the prosecutor (Item 2 of article 76 of the Code).

The bodies performing functions on guardianship or custody shall conduct in accordance with the established procedure based on determination of court examination of living conditions of the child and person (persons) applying for his education and also to provide to court the act of inspection and the conclusion based on it on the substance of dispute.

The question of carrying out inspection is subject to permission to stages of preparation of case for legal proceedings.

The court estimates the conclusion of body in total with other proofs on case. Disagreement with the conclusion shall be motivated in the decision made on case.

3. In case of the dispute resolution, connected with education of children, courts should consider provisions of article 12 of the Convention on the Rights of the Child (New York, on November 20, 1989, the Resolution of the Supreme Council of the Republic of Kazakhstan of June 8, 1994 "About ratification of the Convention on the Rights of the Child") and article 62 of the Code according to which the child irrespective of age has the right to express freely the opinion on all questions infringing on its interests and also to be heard during any legal or administrative proceedings.

Survey should be carried out taking into account age and development of the child in the presence of the teacher and (or) the psychologist, in the situation excluding influence on it of interested persons. At the same time it is necessary to find out whether the opinion of the child is consequence of impact on it one of parents or other interested persons, whether he realizes own interests in case of expression of this opinion and as he proves it.

Presence in case of poll of the child of the representative of the bodies performing functions on guardianship or custody does not exempt court from fulfillment of requirements of part five of Article 77 GPK about obligatory participation in case of clarification of opinion of the child of the teacher and (or) psychologist.

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