of September 30, 2004 No. 11
About practice of consideration by courts of the disputes connected with education of children
Having discussed practice of consideration by courts of the disputes connected with education of children for the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that children have the right to special, preferential and first-priority care both from parents, and from the state which is necessary for their wellbeing and harmonious development. Therefore by consideration of the disputes connected with education of children, courts should pass decisions for the purpose of the maximum protection of the rights and interests of children, creation of the best conditions for content and education by it.
2. By consideration of the disputes connected with education of children, courts should be guided by the Convention on the Rights of the Child accepted by the United Nations General Assembly on November 20, 1989 (it is ratified by the Republic of Belarus on October 1, 1990), Conventions on legal assistance and legal relations on civil, family and criminal cases of January 22, 1993 and of October 7, 2002, the Constitution of the Republic of Belarus, the Code of the Republic of Belarus about scrap and family *, the Law of the Republic of Belarus of November 19, 1993 "About the child's rights" (in edition of the Law of October 25, 2000), the Regulations on guardianship and custody bodies in the Republic of Belarus approved by the resolution of Council of Ministers of the Republic of Belarus of October 28, 1999 No. 1676, other regulatory legal acts.
* Further - KOBS.
3. Courts need to mean that disputes belong to the disputes connected with education of children, in particular: about the residence of the child in case of separate accommodation of parents (the p. 3 of Art. 74 of KOBS); about elimination of disagreements in questions of education of children, between parents (the p. 2 of Art. 75 of KOBS); about implementation of care over the child one parent and restriction of the rights and obligations of other parent on this child (the p. 4 of Art. 76 of KOBS); about participation of separately living parent in education of children (Art. 77 of KOBS); about removal of obstacles to communication with grandsons of the grandfather and the grandma (Art. 78 of KOBS); about return to parents of children from persons holding them at themselves without legal causes (Art. 79 of KOBS); about return to guardians (custodians) of wards, and also to adoptive parents of children from persons holding them at themselves without legal causes (the Art. 159, the p. 3 of Art. 173 of KOBS).
4. Explain to courts that the statement for initiation of proceedings on the dispute connected with education of children is accepted to production of court with observance of the rules of cognizance established by the Art. of the Art. 46, 47 GPK. If requirements are declared together with the action of rescission of scrap, then the rules of cognizance established for the action of rescission of scrap are applied.
Put cognizance of cases in which foreign citizens, stateless persons participate and also on which at least one of the parties lives outside the Republic of Belarus, 544 GPK are determined according to the Art.
For citizens of the State Parties of Conventions on legal assistance and legal relations on civil, family and criminal cases courts of the Republic of Belarus are competent to consider the disputes connected with education of children if parents and children take the permanent joint residence in the Republic of Belarus, and in the absence of the permanent joint residence of parents and children - if the child is citizen of the Republic of Belarus.
5. Courts should consider that legal relationship between parents on the questions connected with education of children are lasting therefore availability of the judgment is not obstacle for excitement of res nova between the same parties and about the same subject if circumstances on which the decision is based changed.
6. For the purpose of providing the timely and correct dispute resolution, the children connected with education, courts shall carry out proper preparation of cases for legal proceedings, paying at the same time special attention on quality of the documents submitted to court by guardianship and custody body, and in the presence of shortcomings of their creation to take measures to elimination of these shortcomings before purpose of case to legal proceedings.
According to the procedure of the Art. 262 GPK the judge causes the parties for poll and refining of their line item on the arisen dispute, and also determines circle of the proofs necessary for clarification of the facts of the case makes other necessary actions for the purpose of providing the rights and interests of children, in particular, resolves questions of challenge in judicial session of the psychologist, about appointment in the matter of judicial and psychological examination, etc.
7. Draw the attention of courts that on the disputes connected with education of children, participation in case of guardianship and custody body is obligatory (Art. 86 of KOBS).
According to Regulations on guardianship and custody bodies in the Republic of Belarus implementation of functions on guardianship and custody concerning minors is assigned to managements (departments) of formation of district, city executive committees and local administrations of areas in the cities. In contentious case, connected with education of children, the guardianship and custody body can act as state body, authorized to draw the conclusion on case.
In all cases the court has no right to appoint legal proceedings before obtaining from guardianship and custody body of the conclusion on case. Therefore if in case of submission of the action for declaration about initiation of proceedings the conclusion of guardianship and custody body on the substance of dispute was not attached to it, then by preparation of case for legal proceedings the court shall charge to guardianship and custody body to conduct examination of living conditions of the child and persons applying for his education and to draw the conclusion on the substance of dispute.
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