Analysis of legal regulation and judicial practice of resolving disputes between parents about children

2021 ◽  
Author(s):  
Viktoriya Dergunova ◽  
Anastasiya Prokopova
Keyword(s):  
Central Place ◽  
Legal Regulation ◽  
Best Interests ◽  
Legal Responsibility ◽  
Parental Rights ◽  
Place Of Residence ◽  
Child Abduction ◽  
Judicial Practice ◽  
Rights Of The Child ◽  
Wide Range

The monograph is a comprehensive study of the current practice of resolving cases on determining the place of residence of children, the procedure for communicating with them separately living parents and other relatives; restriction and deprivation of parental rights; on the departure of children outside the Russian Federation and return within the framework of the Convention on Civil Aspects of International Child Abduction of 1980, the Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Cooperation in relation to Parental Responsibility and Measures for the Protection of children of 1996.The relations that develop between the child and parents, the child and the court, parents and the court, as well as parents as parties to the process are analyzed. The central place is occupied by the study of the content of the concept of the best interests of the child as a guarantee of the protection of his rights and the vector of development of the current legislation. The cases of abuse of parental rights and improper performance (or non-performance) of parental duties, illustrated by current judicial practice, are considered. The analysis is presented: measures of family legal responsibility, including restriction and deprivation of parental rights in connection with non-execution of a court decision on the upbringing of a child; features of the application of principle 6 of the Declaration of the Rights of the Child in resolving disputes about the place of residence of children; the possibility of taking interim measures in disputes between parents about upbringing; the ratio of legal and psychological categories in child-parent relations in order to apply special knowledge; the procedure for conducting forensic examinations in these categories of cases. Finally, the possibilities of out-of-court settlement of some family disputes, including through mediation, are investigated. For a wide range of readers interested in the rights of the child. It will be useful for students, postgraduates and teachers of law schools.

DIRECTION OF THE CASE ON JURISDICTION: PROBLEMS OF LEGAL REGULATION AND FEATURES OF PROCEDURAL REGISTRATION

2021 ◽  
Vol 11 (3) ◽  
pp. 293-315
Author(s):  
D.Yu. VORONIN
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Appellate Courts ◽  
Judicial Practice ◽  
Wide Range ◽  
The Supreme Court ◽  
Universal Approach ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
The Difference

The paper presents a research of the new legal regulation for such an institute in relation to a regional and equal court, as the referral of a case received in accordance with part 4 of Article 39 of the Arbitration Procedure Code of the Russian Federation to a court of general jurisdiction, which is in jurisdiction to hear a case as it is assigned by law. The absence of procedural legal regulation of this action, which is, in author’s opinion, has an obvious procedural nature, and researched practice general jurisdiction courts demonstrate the uncertainty in implementation of the considered reform. The author analyzes the new procedural institution on the basis of his own vision of a number of procedural norms, as well as scholar works and historical experience. In particular, the author reasoning that the courts are to issue special rulings on the referral of cases received from arbitration to the courts of general jurisdiction. Moreover, the author considers the mechanism for adopting such a judicial act. The article presents a wide range of practical examples of the implementation of considered provision, as well as the difference in the approaches of the appellate courts to assess these implementation practice. In conclusion, the article presents the proposals for further improvement of the regulation of considered issue. Most likely such an improvement will be impossible without the universal approach established by the Supreme Court of the Russian Federation. Such improvements should result in uniform judicial practice, as well as further developments of procedural legislation.

scholarly journals Forensic Medical Expertise in Traditional China: Legal Regulation and Practice

2021 ◽  
Vol 2021 (4) ◽  
pp. 348-357
Author(s):  
Aleksandr Dan'shin
Keyword(s):  
Causes Of Death ◽  
Medical Training ◽  
World History ◽  
Legal Regulation ◽  
Medical Examination ◽  
Legal Responsibility ◽  
Medical Expertise ◽  
External Examination ◽  
Legal Norms ◽  
Judicial Practice

The article deals with the problems of forensic medical expertise in traditional China in the investigation of crimes related to murder and death of people under unknown circumstances. The research featured legal acts and related comments that regulated the procedure. The author focused on the treatise of the XIII century Sung Tzu's "Washing Away of Wrongs" (Hsi yüan lu), which became the first essay on forensic medicine in world history. This document was far ahead of European works on this topic and was still in use in the early XX century. Constant conflicts between non-official comments and legal norms were one of the most serious problems that judicial practice had to face. For instance, according to the century-long shiht’u practice, specially authorized employees (wutso) with no medical training were responsible for describing internal and external injuries on the human body. Medical education was not mandatory for those performing forensic medical examination because autopsy was prohibited under the threat of punishment in the form of hard labor, and all conclusions about the causes of death were made on the basis of external examination. However, the main problem was the legal responsibility for the falsification of forensic medical examination. It often affected innocent people while real criminals managed to escape punishment, which violated the yin-yang harmony.

scholarly journals The Relations Between the Institution of Procedural Responsibility, Legal Relationships and Legal Practice

2019 ◽  
pp. 73-85
Author(s):  
Elena Valerievna Chuklova
Keyword(s):  
Legal System ◽  
Basic Research ◽  
Legal Regulation ◽  
Legal Responsibility ◽  
Legal Practice ◽  
Judicial Practice ◽  
Functional Relations ◽  
Genetic Level ◽  
Definition Of ◽  
Basic Research Project

The subject of this research is the institution of procedural responsibility and its relations with legal relationships and legal practice. In her research Chuklova defines genetic, coordination, subordination and functional relations. According to the author, implementation of procedural responsibility provisions creates both material and procedural legal relations. The author demonstrates that the institution of procedural responsibility either relates to legal relationships at the functional genetic level disregarding the definition of a particular legal relationship or acts as a result of legal regulation or means of regulation. There should be legal grounds for creating such an institution, too. The institution of procedural responsibility creates conditions for discovering the truth in criminal, civil or administrative cases, thus demonstrating subordination relations. The research is based on general and special research methods such as comparative law, formal law analysis, functional and systems approaches, etc. As a result of the research, the author concludes that judicial practice is a coordination link between procedural form and material law, however, many court decisions demonstrate a negative tendency in implementation of the procedural responsibility provisions when there is a total substitution of one term with the other. For example, contempt of court includes such actions as numerous continuous disqualifications, non-submission of documents, failure to appear in court, non-compliance with court orders, negative remarks about a judge's professional or personal qualities. The article is funded by The Russian Foundation for Basic Research, project No. 19-011-00103 А 'Legal Responsibility in Russia's Legal System: the Concept of Interaction, Interconnection and Elimination of Contradictions with Other Elements of Legal System'. 

scholarly journals Excepciones legales al retorno del menor en los supuestos de sustracción internacional = Legal exceptions to the child’s return in international abduction situations

2018 ◽  
Vol 10 (1) ◽  
pp. 561
Author(s):  
Juan José Castelló Pastor
Keyword(s):  
Hague Convention ◽  
Best Interests ◽  
Place Of Residence ◽  
Gran Canaria ◽  
Child Abduction ◽  
International Child ◽  
The Hague ◽  
The Hague Convention

Resumen: El Convenio de la Haya de 25 de octubre de 1980 sobre los Aspectos Civiles de la Sustracción Internacional de Menores prevé un sistema de excepciones legales a la restitución del menor con el objeto de respetar el principio del interés superior del menor. Estas excepciones a la restitución o retorno del menor al lugar de residencia anterior al traslado o retención ilícito a la mayor brevedad posible deben interpretarse de forma restrictiva y, por supuesto, acreditarse la concurrencia de los motivos de oposición a la restitución.La Sentencia de la Audiencia Provincial de las Palmas de Gran Canaria, sección 3ª, de 21 de junio de 2017 objeto de comentario aborda las excepciones legales al retorno del menor y la necesidad de acreditar los motivos alegados para acordarse la excepción. De lo contrario, como sucede en el presente litigio, procede el retorno del menor al lugar de residencia anterior al traslado ilícito.Palabras clave: Sustracción internacional de menores, traslado ilícito, restitución inmediata, Convenio de La Haya de 1980.Abstract: The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction provides for a system of legal exceptions to the return of the child in order to respect the principle of the best interests of the child. These exceptions to the return or return of the child to the place of residence prior to the illicit transfer as soon as possible must be interpreted restrictively and, of course, the concurrence of the grounds for opposition to the restitution must be proven.The Judgment of the Provincial Court of Las Palmas de Gran Canaria, section 3, of June 21, 2017 object of comment deals with the legal exceptions to the return of the minor and the need to prove the alleged grounds for agreeing the exception. Otherwise, as in the present case, the minor returns to the place of residence prior to the illicit transfer.Keywords: International child abduction, legal kidnapping, prompt return, The Hague Convention 1980

scholarly journals Grounds for Deprivation of Parental Rights: The Law Enforcement and the Foreign Legal Regulation

2020 ◽  
Vol 6 ◽  
pp. 10-13
Author(s):  
Sergey V. Zykov ◽  
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Legal Regulation ◽  
Parental Rights ◽  
Existing Structures ◽  
Rights Of The Child ◽  
Significant Difference ◽  
Independent States ◽  
The Russian Federation ◽  
Russian Law

The article discusses the reasons for the deprivation of parental rights provided for in Article 69 Family Code. When comparing them with the provisions of the Convention on the Rights of the Child, a conclusion is drawn about their significant difference, therefore, the thesis that the existing provisions of Russian law are determined by international obligations of the Russian Federation is not confirmed. Despite the fact that the six existing structures of deprivation of parental rights are independent, an analysis of law enforcement practice shows that the courts avoid a clear reduction of factual circumstances to the relevant compositions. Of course, this increases the risk of an unjust decision. The clarifications given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 14, 2017 No. 44, unfortunately, are insufficient. The norms establishing the basis for deprivation of parental rights in the Union of Independent States are generally similar to the Russian ones, however, in a number of cases, the latter show a desire for concretization. In Western European countries, such reasons, as a rule, are not particularly distinguished: violation of the rights of the child is considered as the basis for applying various measures of influence, among which the deprivation of parental rights is extreme, but even if it is used, the parents do not lose the opportunity to communicate with the child (if this does not contradict him interests). The latter should be provided for in Russian law. According to the author, one should restrictively formulate the grounds for depriving parents of their rights, reduce their number; at the same time, an explanation should be given to the courts about the need to clearly follow their content when making decisions.

scholarly journals Ensuring the interests of children in cases of deprivation of parental rights

2021 ◽  
pp. 103-117
Author(s):  
Vasyl Datsenko
Keyword(s):  
Family Environment ◽  
Family Law ◽  
Best Interests ◽  
Child Rearing ◽  
Legal Responsibility ◽  
Future Research ◽  
Parental Rights ◽  
Legal Obligation ◽  
Public Employees ◽  
Family Responsibility

Proper child-rearing of children is the main moral and legal obligation for both parents. In addition, the way parents fulfill their relationships fully requires the constant development of the child, according to her formation and becoming as a person. Unfortunately, not all parents fully communicate their responsibility for the development of the child, the formation of his personality, the importance of their upbringing for a better future of a child. In those times when parents misuse their shared ties, family law measures may be applied to them when the parental rights greeting appears. According to most of the scientists, in this category of reference, welcoming parental rights, is carried out by the court to ensure the interests of the child.Meanwhile, deprivation of parental rights is also a type of family legal responsibility, the main service of which is the search for parents. However, such an approach to amending the institution inviting parental rights into the means of family legal responsibility, highlighting the punitive function of this event, attempts to assign this procedure to the function, the nature of legal liability (fine, educational, preventive), an unjustified conclusion about public employees, the state, society and parents, and this reason distracts from the main participant in this procedure - the child. When considering the issues of the proclamation of parental rights, the main issue for the court should be the proportionality of the interference with the child's right to a family environment to the level of threat of the child's right to formation, protection, health and education. In their quick reference about the appropriateness of punishing the father, the court cannot be judged, so they cannot be present on the child in any way. It also appears logical that in such cases the court cannot at all achieve the goal of punishing the father and simultaneuoslyensuring the best interests of the child. Pursuit of the goal of punishing the father ambiguously intersects with the interests of the child and negatively affects them. Future research should move away from the concept of deprivation of parental rights as a form of family responsibility because in this case the purpose of punishing the father is provided costing the interests of the child. Keywords: best interests of the child, family law relations, legal responsibility, deprivation of parental rights, family law responsibility.

scholarly journals Exploring the Tension between the Rights of the Child and Parental Rights: Voices from Ghana

2021 ◽  
Author(s):  
Obed Adonteng-Kissi
Keyword(s):  
United Nations ◽  
Children's Rights ◽  
Children’S Rights ◽  
Best Interests ◽  
Parental Rights ◽  
Cultural Variations ◽  
Rights Of The Child ◽  
Role Of The State ◽  
United Nations Convention ◽  
The United Nations

The principle of “best interests of the child” is firmly established in legal jurisprudence and has taken a firm hold on several domestic and global instruments. Generally, the courts rely on this principle in many cases of child custody, child work, child labour, and compulsory education. The norm of best interests of the child seems to be placed at the core of international law in relation to children’s rights by Article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC). Nevertheless, there is no one universal “best interests of the child” norm owing to cultural variations. In Ghana, this raises issues of conflicts between expectations in the rights and duties of the parent and the right of the child as expressed in the United Nations Convention on the Rights of the Child (UNCRC) and offers a genuine opportunity for reform. The United Nations Convention on the Rights of the Child (UNCRC) adopted the rights of the child that can be classified into three groups: protection rights, provision rights, and participation rights. It appears the best interests of the child is at the centre of international children’s rights law which is articulated through Article 3(1) of the UNCRC. Presently, the advocacy of a child’s right to welfare grounded on human dignity has generated the present discussion on the rights of the child. Article 18 of the UNCRC provides that parents have a shared and core responsibility for the nurturing of their children and that in undertaking their child upbringing responsibilities, appropriate support shall be offered to parents and legal guardians by State Parties. Usually, the variation between children’s rights and parental rights, nonetheless, is not acknowledged by the UNCRC. Furthermore, the UNCRC views children to be competent individuals who should be an essential component of decision-making on issues affecting them. The parent/child contrast demonstrates that there is the need for cooperation that protects the rights of the child, the parent and defines the role of the state. There is the need to explore the best legal and judicial processes for realising this cooperation.

scholarly journals The child right to be heard in court (using the 1980 Hague Convention in Ukraine as an example)

2020 ◽  
pp. 426-434
Author(s):  
Protsenko Iryna
Keyword(s):  
Hague Convention ◽  
Child Abduction ◽  
Judicial Practice ◽  
Rights Of The Child ◽  
International Child ◽  
Psychological Examination ◽  
General Order ◽  
The Subject ◽  
The Right ◽  
The Hague Convention

The Hague Convention on Civil Law Aspects of International Child Abduction in 1980 introduced a mechanism for resolving issues related to the illegal export or maintenance of children by persons closely related to them. According to this mechanism, executive and judicial authorities must take measures to quickly return the child to the state of his usual place of residence. However, such a return may be refused if there are circumstances specified in the 1980 Convention. One of these is the court's identification of the child’s objections to his return, however, provided that the child has reached an age and level of maturity at which his opinion should be taken into account. Therefore, the court of Ukraine finds out the opinion of the child only if he considers that he has reached the required age and level of maturity. However, the abstractness of the wording of this circumstance leads to the fact that when considering return cases in Ukrainian courts, the child’s opinion is often not heard unreasonably (for example, if the court considers the child’s age insufficient to clarify his opinion, or because the defendant does not insist on hearing the views of the child, or because the parties fail to provide evidence that the child has reached the required age and level of maturity). In our opinion, the courts, in order to avoid such errors, should more actively implement the stipulated in Art. 13 of the Civil Procedure Code of Ukraine the right, on its own initiative, to collect evidence regarding the subject of the dispute, in particular, by appointing a psychological examination aimed at determining the level of development of the child. Clarification of the views of the child should also be carried out with mandatory consideration of the provisions of Article 12 of the 1989 UN Convention on the Rights of the Child, which governs the right of a child to be heard. At the same time, it is worth introducing into the judicial practice of Ukraine the approaches enshrined in the Comments of the UN Committee on the Rights of the Child of General Order № 12 (2009) “The Right of the Child to be Heard”, in particular, related to assessing the child’s ability to express his thoughts

The Essence and Features of Deprivation of Parental Rights as a Measure of Family Legal Responsibility

2020 ◽  
pp. 80-85
Author(s):  
I. L. Shamraeva ◽  
L. V. Volkova
Keyword(s):  
Family Law ◽  
Legal Responsibility ◽  
Parental Rights ◽  
Legal Institution ◽  
Judicial Practice

This article is generally devoted to one of the most relevant topics of family law — deprivation of parental rights. The characteristic, specific features inherent in this legal institution are highlighted. The article analyzes the materials of judicial practice, draws conclusions on the practice of applying the deprivation of parental rights measures of family legal responsibility.

scholarly journals Deprivation of parental rights through the prism of appeal

2018 ◽  
Vol 8 (4) ◽  
pp. 44-54
Author(s):  
N.V. Koval ◽  
A.N. Zenkin
Keyword(s):  
Russian Federation ◽  
Child Rearing ◽  
Legal Responsibility ◽  
Parental Rights ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Family ◽  
Lower Courts ◽  
The Russian Federation ◽  
Role Of Parents

The article raises the question of the application to parents of extreme measures of family legal responsibility-deprivation of parental rights. Turning to the constitutional status of the family in the Russian Federation, determining the policy of the state, the authors show the fundamental importance of the family and the role of parents in the upbringing of children. Arguing over the nature of their freedom to act in the performance of their child-rearing duties, the authors analyze the legislative prohibitions that restrict such freedom in cases where the latter begin to act contrary to the interests of the child. The purpose and the closed list of the bases for application of a punishment measure in the form of deprivation of parental rights (Art. 69 of the RF IC) is opened, it is specified on their detailed explanations by the Supreme Court of the Russian Federation. Familiarization with them shows the complexity and ambiguity in the assessment of the same circumstances that lead various courts to diametrically opposed decisions on the possibility of deprivation of parental rights. The analysis of the regional judicial practice allowed the authors to look at the problem through the eyes of the court of appeal, as well as to summarize and formulate the grounds that formed the basis of the appellate rulings that overturn the decisions of lower courts on the issue under consideration.

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