The concept, conditions and legal consequences of adoption (adrogation) of a child under the Republic of Kazakhstan legislation

This scientific article discusses the legal framework for the adoption of a child in the Republic of Kazakhstan. The authors are analyze the definition of adoption at the present stage in the statutory instruments of the do­mestic and international standing, as well as doctrinal sources. Special attention is drawn to the fact that, at the moment, the institution of adoption of a child is one of the most significant and favourable forms of legall accommodation of children left without a parental care in any civilized state. The legal norms regulating the adoption (adrogation) of a child and the procedure for consideration of cases of adoption in court in the Re­public of Kazakhstan were analysed. The comparative legal analysis, regulatory and other cognition methods form the basis of the methodological background of this scientific paper. The article, also, discusses the main conditions of adoption of a child which exist today. The court judgement about establishment of a child adop­tion is characterized as an evidence confirming the fact of the advent of legal consequences of the considered institution. The legal consequences arising on the basis of adoption of a child are also considered. It is im­portant to identify legal consequences, since they are a certain legal result. The conclusion is formulated that the fact of blood relation is the basis for the occurrence of rights and obligations of citizens as in the law of domestical relations, as well as in different spheres of law.

Introduction

Today preservation of rights and protection of the law-stipulated interests of children is considered as one of the principal directions of domestic political activity carried out in the Republic of Kazakhstan.

In order for the purpose of the goals delivered in the main international legal documents and that the norms of domestic legislation meet the world standards for improving the quality of life of all segments of the population in all directions, including in the area of protecting the rights and legitimate interests of chil­dren, our state has considerable efforts today.

The Constitution of the Republic of Kazakhstan in article 27 enshrines: "Marriage and family, mother­hood, paternity and childhood are under the protection of the state." [1].

Pursuant to the Office of National Statistics of the Agency for Strategic Planning and Reforms of the Republic of Kazakhstan as of beginning of 2020, there are over 6.110,156 children aged from 0 to 17 years in our country.

With all the measures implemented, the number of legally free children is not enough for quite a long time. The total number of orphans and legally free children today is about 23,000 people. Of these, about 4,000 children are foster-children of orphanages. The state should pursue the goal to reduce the number of organizations for orphans, and of course, the number of orphans themselves. However, with the whole situa­tion, the number of legally free children is not reduced.

Materials and methods

The article uses common and private scientific cognition methods, which allowed to analyze the point of the study objectively. Keeping in mind particular characteristics of research issue, purpose and objectives of research, a dialectical method was used, which helped identify the methodological foundations of the study and clarify the essence of the analyzed concepts.

To determine and systematize the theoretical foundations regarding the institution of adoption as a pri­ority forms of the legally free children settlement, a method of scientific analysis and generalization is used.

Corresponding author’s e-mail: aliyevalyuda@inbox.ru

The formal legal method was applied to determine the structure and relationships of covered ideas, as also for reviewing of the pertinent regulations of the Republic of Kazakhstan legislation on the concept, con­ditions and legal consequences of adopting (adrogation) in the Republic of Kazakhstan.

The comprehensive-textural method is used for in-depth study of the regulations of international acts and national state legislation on relations arising within the institution of adoption (adrogation) in the Repub­lic of Kazakhstan.

Results

World states in accordance with international legal acts recognize that "the child for the complete and harmonious development of his personality needs to grow in a family environment, in the atmosphere of happiness, love and understanding." [2].

Civilized states at the legislative level provide for establishment of child welfare institute of "vulnerable children" category.

It seems that this is this way to designate children, who for various reasons were devoid of care, affec­tion and attention from their parents. It is not by chance that the child is considered as such. By virtue of its physical, mental and moral state of juvenile, children cannot perceive real validity on par with adults. And that is why they necessarily need representatives who perform the functions of parents.

"Vulnerable children" as no one else needs to be even more protection of their rights and the interests they possess and have the right to implement them. It is clear that the timeliness of the institution of guardi­anship, custody and adoption in this case is more than appropriate.

The institution of adoption (adrogation) is traditionally considered as one of the most ancient institu­tions. It always had a legal form and existed in all the law systems as the best and most preferred form of the device of children left without parental care. The main factor affecting the emergence of a complete complex of parental rights and responsibilities for the subjects of the specified institution is adoption.

Adoption is obviously predetermined by the legally provided relations between the adopter (his rela­tives) and the adopted child (his offspring). They can be both personal and property character. And most im­portantly, such relationships are similar to such relations that exist between parents and their blood children.

The primary goal of the institute under consideration is to ensure children who, for various reasons, turned out to be deprived of concerns and caress from parents, living conditions, as well as a situation that promotes their development and education in the conditions as close as possible to the native family. In addi­tion, the relationship arising from adoption is certainly favorably affecting adoptive parents. In the process of adoption, the foundation is laid for satisfying their maternal and paternal feelings. In most cases, there are couples that do not have their own children, they are decided on such a responsible step to accept someone else's child into their family.

At the same time, the Kazakhstan legislator does not see the need for prohibiting persons with their own children, become an adopter for another child. Despite the fact that in recent times there are less examples, in practice they are still found. Most often, this kind of situation arise in families, where one of the spouses adopts a child of another spouse. This definitely has a positive effect on a common family atmosphere. In practice, the priority in this is largely married couples. It is easy to explain. So that the child harmoniously develops, he needs a full family. It is in it that he will grow surrounded by heat, caress and good on the part of both parents.

An incomplete family has the opportunity to receive a child for adoption, provided that the interests of this child are corresponded.

The decisive meaning and signification of adoption, in our opinion, consists in the maximum imple­mentation of the entire complex of the rights of "vulnerable child". And, of course, the most priority right in all this complex is the right to live and to bring up in the family.

Discussio n

In various social sciences, adoption (adrogation) is always seen quite extraordinary phenomenon. The predetermination of this institution and the outcome, which is achieved by them, carry quite humaniate promise and are undoubtedly regarded as socially useful. Children, vulnerable due to the deprivation of parental caress and care, precisely through adoption in someone else's family, acquire a chance to grow in a favorable family atmosphere. The readiness to take into someone`s family "vulnerable child" is always associated with a conscious volvas solution, which was due to certain reasons. Often this is the impossibility of healthing their own children. Also, the prerequisite for occurrence can serve the desire to strengthen the already available family relations with the child and his father or mother.

In the meaning sense, adoption and adrogation coincide. This is predetermined by the fact that in both cases the same legal consequences arise. They comply with the general rules. It follows that in the law the definition implying "adoption" is applied into the family to adoption of children of both sexes. Therefore, in the doctrine and legislation, the consuming definition "adoption" implies and "adrogation".

The nature of adoption as a institution with legal consequences corresponds to the essence of similar family law institutions governing the relations of parents and children. Therefore, the current law regulating this institute provides for the formation of legal relations similar to the relationships that arise between parents and children who are blood relatives.

The definition of "adoption" exists with deep antiquity. Relationships involving adaptation can be observed in ancient Rome. During the entire existence of this category, a different meaning intended in it.

The term "adopting" comes out of the distant Latin "ADOPTARE" (AD: A Y Optare: Desear) "choose", "wish." In the vocabulary of the Russian language, the Latin Meaning of the category "Optare" is reflected in such words as "optimizing" and "optimal". F. Puig, denoting the definition of "adoption", writes: «Declarar los Romanos Adoptio Imagonature, que la adopción es imagen de imitación de la naturaleza, en lo que a la filiación concierne. En la misma línea, la partida IV decía que adopción tanto quiere decir como prohijamiento, que es una manera que establecieron las leyes por la cual pueden los hombres ser hijos de otros, aunque no lo sean natural mente (título XVI ley 1.). En Roma la institución conoció amplísima difusión con el ejemplo de los emperadores, que recurrieron a ella para asegurar sesucesores de su afecto y confianza» [3; 460]. "Adoption is a kind of analogue or reproduction of kinship that exists in nature. IV article says that Adoption "adopción" or adoption "prohijamiento" is a special way provided for by law, consider people to children those whose they are not related to children. In Rome, this method was used among emperors, which thus tried to provide themselves with heirs".

In "Lectures and Research ..." V.I. Sergeyevich we can notice the definition: "Adoption is a way to create a certain tandem between parents and children." [4; 498]. Scientist G.F. Shershenevich considered adoption as "reproduction of a family from the absence of future generation." [5; 662].

In doctrine obviously, the most popular is the view that adoption is the cause of family legal relationship. Contentious however, the question was considered: what legal relationship is there a place here? Parental or just similar to it? Or is it just a prerequisite for the occurrence? So, according to A.G.Goyhbarg: "Adoption entails derivatives from family relationships without natural communication." [6; 163]. Definitely, this definition is intertwined with a similar G.F. Shershenevich, but again does not disclose the essence of arrangements.

In a short while scientists noted that the law considers adoption as an agreement, which requires the consent of certain persons [7; 31]. This definition is not quite accurate, since in accordance with regulatory acts there is not enough agreement between certain persons. In addition, the state sanction is also required to these actions expressed in a specific act. At the same time, from the definition incompletely clearly, what kind of relationships are formed and take place as a result of this act.

Most of the authors of the Soviet period at construction of definition "adoption" were started from the legal consequences that it is generated. For example, N.A.Ivanov, Yu.A. Korolev, P.I. Sedugin and others noted that adoption makes sense in voluntary making parental duties towards someone else's child. [8; 84] The position of L.A. Kuzmicheva is clearer: "The main background of parental legal arrangtments is adopting" [9; 108 - 110].

There are also points of view that adoption is aimed at guaranteeing proper education of children in the family. At the same time, they emphasize that it only equalizes relations arising from the institution of adoption and related relations.

There are authors, seeing at the adoption relationship of ancestry between adoptive person and adopted child. So, in accordance with the point of view, Ya.R. Vebers: "Blood relationship is possible not only from blood ties, ... it is a bond not natural, but a social character," and therefore can be based and not on common blood. [10; 35]. He also suggests that in a social context, adoption is a full blood relationship. Consequently, adoption is regarded as a prerequisite for parental relationship.

Ye.M Vorozheykin shared a fundamentally opposite opinion. He separates the relationship arising from the adoption of parents and children's relationships and defines it as "legal relations associated with education and alimentation." He drew attention to a significant difference between the legal relationship of parents and adoptation. [11; 21].

V.N. Zabrodina adheres similar point of view: "First, it is difficult to agree with this opinion, since the genesis of one person falls from another. Secondly, At the moment of child`s birth parental right immediately arises at mother. Thirdly, ways of termination of these legal relations are not similar. Fourth, in relationships about adoption, the emergence of some rights and obligations between the adoptive person and adopted depends up the consent of the adopted who has reached the age of 10, which is not available in the relationships of parents and children. Consequently, at adoption parental relations do not arise, but only equivalent to them. " [12; 85-92].

Bespalov Yu. is considering adoption as a way of judicial defence of child`s rights. Basis of this approach is the appointment of adoption. In his opinion, the purpose of adoption is the realization of the rights of legally free children, first of all, is the right to life and education in the family and the right to defense. [13; 39-41]

Taking all the aforesaid into consideration, it can be noted that many scientists offer to see adoption as a variety of legally free children settlement. Some of them represent adoption as juridical act where between the adoptive person and his relatives, on the one hand, and the adopted child, on the other hand, benefit and burden develop into exactly in natural family.

Here adoption is understood as a legal fact and as a foundation for occurrence of an original legal bond between these persons. At the same time, the legal connection between the child with his real parents and relatives biologically sourced ceases its effect. So, adoption is a legal act in parallel and the right-conferring and rights-terminating.

Concept «adoption» dictates the procedure for establishing and stopping the adoption, the rights and obligations of participants in this legal relationship.

With regard to legal consolidation of this concept in the internal laws of the Republic of Kazakhstan, became inoperative law of independent Kazakhstan, regulating family-marriage relations, did not provide it. This gap was replenished with the enactment of current law - Code "On Marriage (Conjugality) and Family" of 12.26.2011. So, in paragraph 9 of Article 1 indicated: "Adoption (adrogation) - the legal form of transference of a child (children) for parenting into one family under authority of court judgment, as a result of which personal non-property and property benefit and burden, equivalent to the benefit and burden of alliance of ancestry arise. " [14].

Kazakhstani legislation in power "On Marriage (Conjugality) and Family" provides a special order of adoption, which implies its exercise by court in order of special proceeding as part of civil proceedings. In addition, the Code specifies in detail the adoption by foreign citizens as an alternative form of child's settlement if it is impossible to adopt in his homeland.The regulated judicial order of adoption in Kazakhstan and compliance with all necessary conditions contribute to ensuring the guarantee of the rights of children and strength of legal relations arising between the subjects of this institution.

Adoption is possible when compliance with the main conditions. Ye.M.Vorozheykin and G.K. Matveyev adhere to the point of view that the conditions of adoption is nothing more than a totality of legal facts. [15; 309-318].

Civilists-scientists in most cases only list the necessary conditions for adoption. The law enforcement requires a clear differentiation of these conditions necessary to resolve the controversial moments arising in practice.

According to Ablyatipova N.A., Forostyan A.S.: "Any condition is a separate legal fact, the corollary of which are legal consequences along with other legal facts. Conditions are interrelated and interdependent among themselves". Based on these features, they educe the following definition: "The facilities of adopting can be recognized as strict legal requirements applied to persons and relations in the adopting process". [16; 186-192]

In order to separate legal facts and the need to allocate the main criteria for adoption, Baturina N.I. divides the conditions for general and special. For general conditions, it refers all those necessary in all cases to make a positive decision in adoption case. For example, the requirements applicable to adopted, candidates for adoptive parents, to the goals of adoption. Special ones are only those conditions, the presence of which is necessarily in the cases provided by law. [17; 203].

The conditions of adoption are strictly fixed and governed by the family law legislation of the Republic of Kazakhstan.

Adoption is carryied out by court. Exclusively juvenile children come under adoption. It's connected to minors are unable to protect their rights independently.

It will be observed that the law makes the requirements for the adoptive person that are compulsory for all and, of course, provide preliminary security for adopted child. In this vein, paragraph 1 of Article 91 of the Family Code of the Republic of Kazakhstan consideres that only adults can be adoptive parents and also exception of persons who can`t. [14].

Position of law-making body, fixed in paragraph 3 of Article 91 of the RK Code "On Marriage (Conjugality) and Family", is not entirely understood: "Persons who are not to take place in marriage (conjugality) against each other can`t in collaboration with adopt the same child." [14]. Today, actual marriage relations are quite frequent, but not properly completed in registering state bodies. But this, in our opinion, should not be considered as an obstacle to the adoption of a child, since the actual marriage relationships involve cohabitation and management of the economy as a whole, and the upbringing of a adopted child in such families will not differ from a similar process in families where marriage is registered officially.

Not only healthy children are subject to adoption, but also children suffering from any diseases. In the latter case, future adopters must necessarily be aware of this.

The reverse situation stands with the adopter. The law provides for specific diseases, having which a potential adopter will not be able to become in reality [18].

Despite this, the dishonesty of potential adopters, manifested in concealing information about the signs of their diseases, serves as a frequent basis for the adoption annulment in practice.

Obstacles for the adoption by persons of different nationalities with adoptive legislation of the Republic of Kazakhstan is not envisaged.

In the adoption procedure, it is important to obtain the consent of such persons as: adoptive parents, adopted, parents of a child or persons replacing them, the adoptive spouse, if he is not a child adopter.

An important condition for the adoption of the child according to the law is to receive endorsement of his parents if they are not terminated parental rights. If the parents of the adopted child did not reach the age of 16, endorsement of their appropriate adults is required, and in the absence of those, the consent of the body that performs the function of custody or trusteeship.

Ensuring the guarantee of the rights and interests of both a child and parents is the consent of the parents of the child. It plays an important role as well adoption process as directly for the adopter.

With the adoption of a child who has reached 10 years, its consent is required. It is believed that at this age the child is already able to think and express their desires. Adoption against the child's desire is unacceptable. In practice, however, there are often cases when pressure from the adopter was rendered to the child and it can negatively affect the expression of consent or disagreement during the trial.

If the appearance of child turned the age of 10 years is impossible due to its health status, (for example, the child has disability and is limited in movement), the court must take into account his interests. In such cases, learn the opinion of child respecting adopting is probably at the place of child`s occurrence [19].

If the adoption of the child is one of the spouses and he is not adopted by both spouses, then the consent of another spouse in writing is required. The exception will make cases where judge reviewing a case will determine that actual family relationships stopped, the spouses do not live together over 1 year and the place of residence of the applicant's spouse is unknown.

Adoption will certainly entail legal consequences. The court judgement on adoption is proof of confirmation of the fact of the occurrence of consequence in law of considered institution. Properly, additional documents that would also confirm this fact are not necessary.

According to the letter of the law, adoptive parents, first of all, become the owners of parental rights and responsibilities, which at the same time are deprived of the parents of the child by origin. If the adopter in his own will agrees to take over the burden of educating the adopted child, the law will oblige him to bring up a given child as his own, as well as take care of his health.

Through a legal pathway legal consequences of adoption are enshrined by Article 100 of Family Code of the Republic of Kazakhstan [14].

In the process of adoption, children forfeit a rights and obligations towards their biological parents. If, the adopter is only stepfather or stepmother, respectively, the relationship is lost with one of the parents.

The fact of blood relation is a basis for the occurrence of rights and obligations also in other areas of law and legislation, respectively, the subjects of adoption relations become owners.

Co nclusio n

Domestic law of the Republic of Kazakhstan, governing sphere of family legal relations, establishes various forms of adoption of children for education: guardianship and custody, adoption, patronage. But among these forms of the permanent settlement of legally free children , exactly the adoption (adrogation) has own special place. Kazakhstan legislation discusses it precisely as a priority form of settlement of legally free children.

Summarizing all the above, should be indicated that in the present period, adoption (adrogation) as the institution of "social" motherhood and paternity can be maximally relate to relationships arising between parents and children in a bloodrelated family.

It should also be noted that the adoption realization as at the national level within the state, so at the international level there must be undoubtedly based on specific legal principles. And these principles found their consolidation as in international acts (first of all, in the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, of December 3, 1986), so in national legislation (The Republic of Kazakhstan Law "On the Rights of the Child", the Republic of Kazakhstan Code "On marriage and family"). Disregard of principles is the basis for the annulment of already committed adoption or refusal in implemented one.

It seems that the constant improvement and development of adoption mechanisms for all children, deprived of parental care, as at the national, so at the interstate level, granting ultimate values of child will have a positive impact the overall situation associated with these relevant questions at all times.

 

References

  • Konstitutsiia Respubliki Kazakhstan. Рriniata na Respublikanskom referendume 30 avgusta 1995 goda [Constitution of the Republic of Kazakhstan Unofficial translation. Constitution adopted on August 30, 1995 at the republican referendum.] zakon.kz Retrieved from https://online.zakon.kz/Document/? doc_id=1005029#pos=262;-56 [in Russian].
  • Konventsiia o pravakh rebenka, priniataia rezoljutsiei 44/25 Generalnoi Assamblei ot 20 noiabria 1989 goda [Convention on the Rights of the Child Adopted by General Assembly resolution 44/25 of 20 November 1989] un.org Retrieved from https://www.un.org/ru/documents/decl_conv/conventions/childcon.shtml [in Russian].
  • Puig, F. Tratado de derecho civil Español. — Madrid: Editorial Revista de Derecho Privado, — 647 p. [in English].
  • Sergeevich, V. (1903). Lektsii i issledovaniia po drevnei istorii russkogo prava [Lectures and research on the ancient history of Russian law]. (3d ed.). Saint Petersburg.: Tipografіia M. Stasjulevicha [in Russian].
  • Shershenevich, G.F. (1911). Uchebnik russkogo grazhdanskogo prava [Russian civil law textbook] (9d ed.). Moscow: Izdanie Br. Bashmakovykh [in Russian].
  • Gojhbarg, A.G.(1925). Sravnitelnoe semeinoe pravo. [Comparative family law] Moscow: Juridicheskoe izdatelstvo NKJu RSFSR [in Russian].
  • Ljublinskij, P.I. (1926). Novyi zakon ob usynovlenii [New adoption law]. Moscow: Jurizdat [in Russian].
  • Ivanov, N.A., Korolev, Yu.A., & Sedugin, P.I. (1970). Novoe zakonodatel'stvo o brake i sem'e [New legislation on marriage and family]. Moscow: Yuridicheskaiia literatura [in Russian].
  • Kuz'micheva, L.A. (1973). Usynovlenie po deistvujushhemu semeinomu zakonodatelstvu [Adoption under current family law] Pravovedenie — Jurisprudence, 5, 108 — 110 [in Russian].
  • Vebers, Ya. R. (1962). Poniatie rodstva kak osnovaniia vozniknoveniia prav i obiazannostei [The concept of kinship as the basis for the emergence of rights and obligations] Vestnik Moskovskogo universitet — Moscow University Bulletin, 4, 29—39 [in Russian].
  • Vorozhejkin, E.M. (1972). Semeinye pravootnosheniia v SSSR [Family relations in the USSR]. Moscow: Yuridicheskaiia literatura [in Russian].
  • Zabrodina, V.N. (1980). O poniatii usynovleniia. [About the concept of adoption] Vestnik Leningradskogo universiteta. Jekonomika. Filosofija. Pravo — Leningrad University Bulletin. Economy. Philosophy. Right, 11, 85–92 [in Russian].
  • Bespalov, Yu. (1997). Usynovlenie kak sposob sudebnoi zashchity prav rebenka [Adoption as a way of judicial protection of the rights of the child]. Rossiiskaia yustitsiia — Russian justice, 7, 39–41 [in Russian].
  • Kodeks Respubliki Kazakhstan «O brake (supruzhestve) i seme» (s izmeneniiami i dopolneniiami po sostoianiiu na 07.2021 g.) [On Marriage (Matrimony) and Family. The Code of the Republic of Kazakhstan dated 26 December, 2011 No. 518­IV.] online.zakon.kz Retrieved from https://online.zakon.kz/Document/? doc_id=31102748 [in Russian].
  • Nechaeva, A.M. (2001). Semeinoe pravo: Kurs lektsii [Family Law: Course of Lectures] (2d ed.). Moscow: Yurist [in Rus­sian].
  • Abljatipova, N.A., & Forostjan, A.S. (2018). Usloviia usynovleniia v rossiiskom semeinom prave [Conditions for adoption in Russian family law] Voprosy rossiiskogo i mezhdunarodnogo prava — Issues of Russian and international law, 8 (5A), 186–192 [in Russian].
  • Baturina, N.I. (2005). Usynovlenie (udocherenie) detei po rossiiskomu semeinomu pravu [Adoption of children under Rus­sian family law]. Candidate’s thesis. Volgograd [in Russian].
  • Prikaz Ministra zdravoohraneniia i sotsialnogo razvitiia Respubliki Kazahstan ot 28 avgusta 2015 goda № 692 «Ob utverzhdenii perechnia zabolevanii, pri nalichii kotorykh litso ne mozhet usynovit rebenka, priniat ego pod opeku ili popechitelstvo, patronat» [Order of the Minister of Health and Social Development of the Republic of Kazakhstan dated August 28, 2015 692 «On approval of the list of diseases, in the presence of which a person cannot adopt a child, take him under guardian­ship or guardianship, patronage»] adilet.zan.kz Retrieved from https://adilet.zan.kz/rus/docs/V1500012127 [in Russian]. Normativnoe postanovlenie Verhovnogo Suda Respubliki Kazakhstan ot 31 marta 2016 goda № 2 «O praktike primeneniia sudami zakonodatelstva ob usynovlenii (udocherenii) detei» [Normative Resolution of the Supreme Court of the Republic of Ka­zakhstan dated March 31, 2016 No. 2 «On the practice of the courts' application of legislation on the adoption (adoption) of chil- dren»]. adilet.zan.kz Retrieved from https://adilet.zan.kz/rus/docs/P160000002S [in Russian].
Year: 2021
City: Karaganda
Category: Law