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The Norms and Content

31.08.2016

Galyna Lefor, attorney at Ilyashev & Partners Law Firm
Source: Yurydychna Praktyka

Deprivation of parental rights does not relieve parents from the obligation to support their children

As it is stated in the Convention on the Rights of the Child (1959) “the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.

As a matter of law parents bear certain obligation towards their child and failure to fulfil such obligations may result in deprivation of parental rights.

Factors and deviations

Article 164 of the Family Code of Ukraine stipulates for the grounds under which parents may be deprived of their parental rights. Mother or father may be deprived of their parental rights if: they failed to take their child from maternity home or from any other health protection facility without the good cause and within six months failed to take towards such child their parental care, avoided carrying out their obligations on upbringing of the child, abuse the child; resort to any types of child’s exploitation, force the child to begging and vagrancy. Alcohol and narcotics addiction of any of the parents, conviction for intentional crime committed in relation of a child are also included into the list of grounds for deprivation of parental rights.

It needs to be indicated that the Family Code of Ukraine allows depriving parents of their parental rights only under a court decision and only upon availability of certain grounds. This is why mother’s claim on having the father deprived of his parental rights on the grounds of his failure to pay alimony will not be sustained by the court.

In its order as of March 30, 2007 “On the practices of application by the courts of legislation in the process of consideration of cases related to adoption and deprivation of parental rights” the Plenum of the Supreme Court of Ukraine stated that deprivation of parental rights should be used as a measure of last resort to exert influence onto the persons failing to fulfill their parental obligations.

Pursuant to Article 150 of the Family Code of Ukraine (“Parental Responsibilities in respect of the Child’s Education and Development”) the parents are obliged to educate the child in the spirit of respect for the rights and freedoms of the others, love to his/her family and relatives, people and Motherland; the parents are obliged to have the duty to care of the child’s health, his/her physical, spiritual and moral development; the parents are obliged to ensure that the child receives full general secondary education and shall prepare him/her to making his/her own life. The legislator imposes an obligation onto parents to have respect towards their child, forbids physical punishment of a child by the parents, as well as application by them of other kinds of punishments assaulting dignity of a child. At the same time there are no clarifications regarding practical application of this norm. Very rare are the occasions of bringing the parents to responsibility for willful failure of the parental obligations established by law which caused grave consequences (Article 166 of the Criminal Code of Ukraine). As a rule parents or surrogate parents are brought to administrative responsibility for avoidance of performance of legally established obligations on provision of conditions necessary for guaranteeing life, education and upbringing of their underage children. But, as the practice shows, imposing a fine to such fail-parents does not influence their attitude towards their own children and, sooner or later, leads to deprivation of the parental rights.

While providing clarifications to the courts on how to use legislation in the process of consideration of cases on deprivation of parental rights the Plenum of the Supreme Court established that parents’ failure to fulfil their parental obligations means failure to ensure proper children’s nutrition, medical examination or treatment which negatively influences his/her physical development. Insufficient communication with a child, failure to provide access to cultural and other intellectual values, demonstration of no interests to the child’s inner world also constitute the forms of deviation.

At the same time the Supreme Code of Ukraine recommended to review these facts of deviation from upbringing both separately and in their entirety only in case of improper behavior of the parents and willful disregard of their obligations. If one of the parents is unable to control his/her actions because of a psychological illness or invalidity such parent cannot be deprived of his/her parental rights. In case of absence of their guilt the parents will not be deprived of their parental rights, but the court may establish custody over the child pursuant to Article 19 of the Family Code of Ukraine.

The fact of deviation of one or both parents from providing education and support to their child must be confirmed by written proof (acts, letters), as well as by witness statements. At the same time it will not be necessary to have an independent decision of the court in confirmation of such fact.

Article 165 of the Family Code of Ukraine grants the right to lodge a claim to the court containing a request on deprivation of parental rights not only to one of the parents, guardian, custodian, person in the family with whom the child resides, but also to a health protection, educational or any other children care establishment, tutorship and guardianship authorities or to a prosecutor. Family legislation grants the right to a child who reached 14 years of age to independently protect his/her interests, including by lodging a claim to the court in relation to deprivation his/her parents of their parental rights. Cases of individual bringing the case by a child to the court are quite common. As a rule the courts sustain such claims if the evidence of parents’ deviation from providing education and support to their child are available.

In addition, pursuant to Article 258 (2) and Article 262 (2) of the Family Code of Ukraine a grandmother, a grandfather, a sister, a brother, mother-in-law, father-in-law have the right to apply for protection of the rights and interests of minor and underage children, as well as of incapacitated persons (grandchildren etc.) to the child custody and welfare agencies or to the court without the special authorities.

Taking the child’s opinion into consideration

The cases on deprivation of parental rights are the cases of adversary proceedings, this is why they are subject to consideration under the general jurisdiction rules – according to Article 109 (1) of the Civil Procedure Code of Ukraine – according to the place of residence of the respondent or of one of them if the claim is lodged against both parents (Article 113 (1) the Civil Procedure Code of Ukraine). If one claim contains the demands on deprivation of parental rights (as well as other demands regarding protection of children’s rights (collection of alimony etc.) such claim, according to Article 110 (1) of the Civil Procedure Code of Ukraine, may be lodged at the claimant’s choice.

Article 19 (4) of the Family Code of Ukraine stipulates for compulsory participation of child custody and welfare agencies in court proceedings on consideration of cases related to deprivation of parental rights. A child custody and welfare agency provides the court with a written conclusion on settlement of the dispute on the basis of information received as a result of examination of living conditions of a child, parents, other persons wishing to live together with the child and participate in his/her upbringing, as well as on the basis of other documents related to the case. At the same time the court may not agree with the conclusion of the child custody and welfare agency if such conclusion is not substantiated enough or contradicts the child’s interests. The cases when the court does not agree with the conclusion of the child custody and welfare agency are quire rare, but if (on the basis of the evidence reviewed in the court process) the court comes to a different conclusion it usually substantiates its decision and clarifies the reasons for its disagreement with the conclusion of the child custody and welfare agency. There are also instances when the court – which deems the conclusion of the child custody and welfare agency to be insufficiently substantiated – will oblige such agency to repeatedly consider this matter and render the conclusion subsequent to the results. Article 11 (1) of the Law of Ukraine “On provisions for organizational and legal conditions of social protection of orphaned children and children deprived of parental care” child custody and welfare agencies include state administrations of districts, districts in Kyiv and Sevastopol, executive departments of town or district in towns, village and settlement councils. The activities on direct conduct of matters and coordination of activities regarding orphaned children and children deprived of parental care are carried out by offices on children’s matters (Article 12 (1) of the Law). Jurisdiction of the offices on children’s matters is established by the decrees of the Cabinet of Ministers of Ukraine No. 886 as of September 24, 2008 which approved the Procedure for execution by child custody and welfare agencies of the activities related to protection of children’s rights, and the Decree No. 905 as of October 08, 2008 “On approval of the Procedure of execution of activities on adoption and supervision over observance of the rights of the adopted children”.

International and the national legal norms stipulate for the child’s right to have his/her opinion considered in cases when the matter is related to his/her life. Suchwise, pursuant to Article 12 (1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. With this purpose the child is provided with a possibility to be heard in the course of any judicial or administrative proceeding which is related to this child either directly or via the representative or corresponding authority under the procedure stipulated by procedural norms of the national legislation.

The national legislation also has corresponding provisions: pursuant to Article 171 of the Family Code of Ukraine a child’s opinion must be taken into consideration in the process of settlement of the matters related to his/her life, including in the process of settlement of the matters on deprivation of parental rights. As soon as the legislation, namely the Family Code of Ukraine, does not contain a clear reference to the age starting from which a child’s opinion should be taken into consideration, the courts have questions regarding compliance with the established legal norms. As a rule the courts use the criteria stipulated by Article 218 (1) the Family Code of Ukraine which stipulates that to perform adoption parents need to receive consent of a child if he/she has reached such age and level of development that he/she can express such consent. Major part of the courts hears and considers the opinion of the child who reached the school age (6-7 years). As soon such court proceedings require participation of a representative of child custody and welfare agency, a qualified psychologist is not invited. Psychological examination is not also carried out in this case. However, there are instances when one of the parties of the proceedings does not agree with the opinion of the child, provides a psychologist’s conclusion on inability of a child (by virtue of any reasons, including the psychological pressure of the other parent) to express his/her opinion. In this case the court appraises relativity, acceptability, and probability of each piece of evidence individually, as well as sufficiency and interrelation of the pieces of evidence in their entirety.

A child provides his/her consent for adoption in the form consistent with his/her age and state of health. At the same time the court has the right to uphold a decision which will be contrary to the child’s decision if his/her interests require otherwise.

Parental obligations

The farther who has lost his parental rights loses personal non-proprietary rights to the child and is deprived of obligations on his/her upbringing (Article 166 of the Family Code of Ukraine). However, deprivation of parental rights does not relieve a person from responsibility to materially support the child because, pursuant to Article 166 (3) of the Family Code of Ukraine, concurrently with deprivation of parental rights the court upholds a decision on recovery of alimony for the benefit of the child. If mother, father or other lawful representatives of the child refuse to receive alimony from the person deprived of his/her parental rights, the court upholds a decision on transfer of the sums of the alimony to the personal account of the child which was opened by the branch of the State Savings Bank of Ukraine and imposes an obligation onto the mother, farther or other lawful representatives of the child to open the mentioned personal account within one month from the moment when the court decision comes into force. It needs to be noted that Article 166 of the Family Code of Ukraine was supplemented by the mentioned provision (part 3) only recently by virtue of the Law as of May 17, 2016. Previously the matter of collection of the alimony was reviewed only upon request of the claimant or at the court’s own initiative which occurred very rarely. In my opinion transfer by the person who was deprived of his/her parental rights of the alimony to the personal account of the child opened by the branch of the State Savings Bank of Ukraine not only guarantees proprietary rights of a child, but also influences the sense of responsibility of the irresponsible father.

But, after all, the legislator provides the parents deprived of their parental rights with a possibility to correct their mistakes: Article 168 of the Family Code of Ukraine allows (through the court procedure) to have a meeting with a child provided that such meeting will not cause harm to the child’s life, health and moral state, and Article 169 of the Family Code of Ukraine stipulates for a possibility to reinstate the parental rights through legal proceedings.

 
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