Перевод в сфере семейного права

From “Dicey and Morris on the Conflict of Rules”, Chapter 19 , part B, “Effect of Foreign Guardianship and Custody Orders”, pp.184-190.

Rule 97. (1) Subject to clause (2) of this Rule and to the provisions of international conventions given effect by the Child Abduction and Custody Act 1985, a custody order made by a foreign court does not prevent an English court from making such custody orders in England in respect of the child as, having regard to his welfare, it thinks fit.

(2)A custody order made by a court in any other part of the United Kingdom and in force with respect to a child who has not attained the age of sixteen will be recognised in England as if it had been made by the appropriate English court and as if that court had had jurisdiction to make

it.

(3)A custody order recognised under clause (2) of this Rule and registered in the appropriate court in England will be enforced in England.

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International conventions. The Child Abduction and Custody Act 1985 gives the force of law in the United Kingdom to two international conventions concluded in 1980. Each convention seeks to protect existing rights of custody and to discourage the international abduction of children in breach of those rights; read together with the provisions of the 1985 Act they establish practical mechanisms to achieve these ends.13 In consequence, where a child so abducted is to be found in England and one of the conventions applies the powers of the English courts to review the merits and to form their own judgment as to what best serves the welfare of the child are largely eliminated.

(a) The European Convention. A European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children was prepared under the auspices of the Council of Europe and signed on May 20, 1980. The 1985 Act gives effect to the provisions of Convention dealing .with the recognition and enforcement of decisions, but not those dealing with abduction where the provisions of the later Hague Convention are preferred. If applications are made to the English court under both conventions, that under the Hague Convention is to be dealt with first.

For the purposes of the European Convention, a decision relating to custody is a decision of a judicial or administrative authority in so far as it relates to the care of the person of a child, including the right to decide on the place of his residence, or to the right of access to him; and a child means any person under 16 years of age who has not the right to decide on his own place of residence under the law of his habitual residence, the law of his nationality or the internal law of the State addressed. A decision relating to custody given in a Contracting State is to be recognised, and where it is enforceable in the State of origin made enforceable, in the United Kingdom.

A foreign decision within these provisions is recognised in England as if made by an English court having jurisdiction to make it.

b) Hague Convention on the Civil Aspects of International Child Abduction

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Choice of law. Whenever the court has jurisdiction to make a maintenance order under the Guardianship of Minors Act 1971, or the Children act 1989 which is to replace [....] it will apply English law, even if the parties are domiciled abroad. In English law, the duty of a parent to maintain a child generally ceases when the child reaches the age of majority, but under some foreign systems the duty may last longer, or there may be a duty on the child to maintain his

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parents. The direct enforcement of such duties in England would appear to be impossible because the court would have no jurisdiction to entertain the proceedings. But a question of indirect enforcement might arise (and has indeed arisen) if, for example, some person or authority outside England maintained an adult child domiciled abroad and then claimed to recover the amount from the child's parent in England. In such circumstances the law of the parent's domicile appears to govern with the result that, if he is domiciled in England, the claim fails. Even if the parent is domiciled abroad, the enforcement of a duty to maintain an adult child might be regarded as contrary to public policy.

Task 8. Fill in the gaps with prepositions. Translate the sentences into Russian.

1.Where the court is exercising its powers … the spouse … favour .. a child .. the family who is not a child … that party (such as a step-child) the court must also have regard … : whether that party assumed any responsibility … child maintenance, and, if so, the extent

…which that party assumed such responsibility and the length .. time … which that party discharged that responsibility.

2.Either spouse can apply … the county court …. reasonable maintenance …. the ground that the other spouse has a) failed …. provide reasonable maintenance …. the applicant b) has failed …. provide , or …. make proper contributions towards, reasonable maintenance …. any child …. the family.

3.Periodical payments orders can be varied or discharged ….. the application … any person …. or ….whom payments were required to be made. The court must have regard …. all the circumstances … the case, including any change …any … the matters …. which the court was … have regard when making the order.

4.…. respect …. the home, the court will usually make a settlement …. property order settling the home …. the primary-carer …. the benefit …. the child, so that ownership will revert back …. the owner …. the end ….. the child’s dependency or full-time education.

5.The court will guard ….. claims disguised as being …. the benefit …. a child when they are really …. the benefit …. the parent who is caring… the child.

6.Parenting plans contain information , guidance and ideas …. issues that parents need …. consider …. their children …. family breakdown, and include sections that parents can complete if they wish … record their decisions …. arrangements …. the children.

7.… private law cases the Children and Family Reporter provides the court …. advice and recommendations …. the matters relating …the welfare … the child; they also perform an important conciliatory role … trying …. help parents reach agreements ….. arrangements

…children.

8.… determining whether the interference … family life was necessary … a democratic society, consideration … what lies … the best interests … the child is …. crucial importance.

Task 9. (A) Student A: You are a journalist. Translate the questions into English. Student B: You are a Russian lawyer. Translate the answers into Russian .

(B) Summarise the lawyer’s opinion in writing.

А: Согласно российскому законодательству, на кого возлагаются родительские права, если родители состоят в браке на момент рождения ребенка?

В: According to Russian law parental responsibility is coupled to the legal filial link between the child and the parent, not the marriage between the parents.

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If parents are married at the time of birth of a child, they both acquire parental responsibility by virtue of a presumption of paternity of the husband of the mother of the child .

А: А если родители ребенка не состояли в браке, а заключили его после рождения ребенка?

В: Subsequent marriage of the parents has no influence on their parental responsibility. Russian law bears no trace of legitimation by subsequent marriage. If the father of the child has recognised the child or his paternity has been established by a court order, he acquires full parental responsibility and shares joint parental responsibility with mother. These acts can take place before or after the marriage of the parents. If those acts did not take place, the marriage of the parents can not substitute them.

А: Влияет ли развод на осуществление родительских прав?

В: Divorce has no formal affect on parental responsibility. Parents always retain joint responsibility after divorce. Their parental rights and duties remain formally equal. However, the Russian experience of almost eighty years teaches that when joint parental responsibility is always the case , the post-divorce problems shift from the issue of attribution of parental responsibility to the that of determination of the child’s residence and the participation of the non-residential parent in the upbringing of the child.

А: При каких обстоятельствах уполномоченные органы разрешают изменение места жительства ребенка ( в пределах одной страны или с вывозом за рубеж) без согласия лица, осуществляющего родительские права?

В: The law does not contain any definition of the child’s residence; legal literature interprets the term ‘residence’ as living together with one of the parents whenever she or he decides to set up home.80 If the child’s residence is determined by a court order, the term residence is understood in this sense. This interpretation gives a parent the possibility to move with the child not only within one city or area but all over the country without consent of the other parent and without asking for alteration of a court order. The other parent can always ask the court to transfer the child’s residence to him or her, but in order to make this claim successful he or she needs to provide evidence that the transfer of residence would be more beneficial to the child than remaining with the other parent. The non-residential parent cannot prohibit the residential parent from moving the child’s residence within the

country.

А: А если место проживания ребенка согласовано между родителями?

В: If the residence of the child has been determined by an agreement between the parents , the parents are free to stipulate in their agreement that the child should reside with one of them in a certain place and that the residence cannot be changed without the consent of the nonresidential parent. However, the enforceability of this will always depend on judicial scrutiny.

А: С учетом определения, данного Советом Европы, объясните понятие «контакты с родителем».

В: The concept of contact encompasses the mutual rights of the child, and the parent who is living apart from the child and the other relatives of the child to maintain personal relationships with each other.

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А: Могут ли родители устанавливать свой собственный режим контакта с ребенком? Если да, то могут ли уполномоченные органы вмешиваться в эти договоренности?

В: Parents are free to make a contact agreement. The agreement must be in writing. The arrangements are not subject to scrutiny by a competent authority. The law does not explicitly state what happens if one of the parents violates a contact agreement. According to an influential opinion, such agreements are not legally enforceable, their violation ‘cause no legal consequences,’ and the agreement is no more than ‘a piece of evidence’.

А: Могут ли уполномоченные органы запрещать, ограничивать или иным способом влиять на осуществление такого рода контактов родителей с детьми?

В: There is no specific legal provision empowering a competent authority to exclude or limit the exercise of contact, or to subject it to certain conditions. However, the law gives the parent who lives with the child the ability to refuse another parent contact with the child if ‘such contact causes physical or psychological harm to the child or is detrimental to child’s moral development’. The parent living apart from the child who does not agree with the refusal of contact upon this ground can bring the case to the court. The court is then entitled to scrutinise whether the invocation of the aforementioned provision has been justified. If the court finds that the contact can indeed constitute a danger for physical or psychological health of the child, or to its moral development, it can exclude or limit the contact, or subject the contact to certain conditions.

Task 10. Translate into English.

1.Алиментное обязательство — это урегулированное нормами семейного права имущественное правоотношение, возникающее на основе соглашения сторон или решения суда, в силу которого одни члены семьи обязаны предоставить содержание другим ее членам, а последние вправе его требовать.

2.Одной из основных обязанностей родителей является предоставление содержания

своим несовершеннолетним детям, а также нетрудоспособным, нуждающимся совершеннолетним детям. Как правило, эта обязанность исполняется без всякого принуждения. При этом родители сами определяют размер, вид и порядок предоставления содержания.

3.Если родители не предоставляют добровольно средства на содержание своих детей, возникают алиментные обязательства, исполнение которых возможно на основании соглашения об уплате алиментов, либо по решению суда.

4.При уплате алиментов по соглашению условия их взыскания и размер устанавливают стороны. Соглашение заключается в письменной форме и подлежит нотариальному удостоверению.

5.При отсутствии соглашения об уплате алиментов алименты взыскиваются в судебном порядке. На содержание несовершеннолетних детей суд устанавливает ежемесячный размер алиментов в долях по отношению к доходу родителя, обязанного уплачивать алименты.

6.На содержание совершеннолетних нетрудоспособных, нуждающихся детей алименты взыскиваются ежемесячно в твердой денежной сумме .

7.Алименты на детей, оставшихся без попечения родителей, оплачиваются опекунам (попечителям) детей, их приемным родителям или зачисляются на счета воспитательных учреждений, лечебных учреждений, учреждений социальной защиты населения и других аналогичных учреждений, где находятся дети, и учитываются отдельно по каждому ребенку.

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UNIT 8

Adoption.

VOCABULARY

adoption order приказ суда в отношении усыновления(удочерения) ребенка guardianship опека; попечительство

joint guardianship совместная опека; совместное попечительство international trusteeship международная опека

natural / real parent фактический родитель

adopting / adoptive/ foster parent приёмный родитель adopter приёмный отец, приёмная мать

adoptee усыновлённый, удочерённая; приёмный trafficking in children торговля детьми

foster care попечительство приемной семьи

Task 1. Study the Russian Family Code, Section VII, article 165 (see the Appendix).

a)Make your own glossary of the legal terms in English. Look up for their Russian counterparts. Compare it with your fellow-student’s, discuss and complete.

b)Student A: Translate the questions into English.

Student B: Answer the questions.

1.Законодательство какого государства регулирует усыновление (удочерение) на территории РФ иностранными гражданами?

2.Какие статьи Семейного Кодекса РФ также применяются при таком усыновлении?

3.Каков порядок и прочие условия для усыновления иностранцами?

4.При каких условиях такое усыновление не может быть произведено?

5.Как осуществляется защита прав и законных интересов усыновляемого ребенка?

6.Признается ли действительным в РФ усыновление ребенка-гражданина РФ, произведенное за пределами РФ?

Task 2. Listen to the teacher reading the text and interpret it into Russian.

Adoption in the UK

Adoption of a child is effected by a court order known as an adoption order which extinguishes the parental responsibility of the child's birth parents, and other persons, and vests it in the adopters. Adoption therefore involves the complete legal transference of parental responsibility and makes the child a full legal member of the new family.

The law of adoption is laid down in the Adoption and Children Act 2002, which came fully into force on 30 December 2005. This Act introduced a radically new law of adoption in place of the 'old' law which had been contained in the Adoption Act 1976. It also made important changes to the Children Act 1989 . At the international level, the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption 1993 is also part of adoption law in the UK. The European Convention for the Protection of Human Rights is also relevant.

Adoption and Human Rights As adoption agencies and courts are public authorities for the purposes of the Human Rights Act 1998 they must exercise their powers and duties in compliance with the European Convention for the Protection of Human Rights (ECHR). They must ensure, in particular, that adoption is in the child's best interests, and that it does not breach the right to family life of the child and the natural parents art. 8 ECHR. Any interference with the right to family life of children and parents must be legitimate, necessary and proportionate (art. 8(2)). The following case was decided by the European Court of

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Human Rights, and must be taken into account by the courts in the UK as result of its obligations under s.2(l) Human Rights Act 1998. In Johansen v. Norway (1997) 23 EHRR 33.

The child, who was in care, had been placed in a foster-home with a view to her adoption, and the mother had been deprived of contact. The ECtHR held that: 'the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by art. 8.' The ECHR held that there had been a breach of the ECHR, as the far-reaching measures taken were inconsistent with the aim of reuniting the mother and child and should only have been taken in exceptional circumstances where they could be justified in the best interests of the child.

But each case depends on its facts. In Soderbcick v. Sweden [1999] 1 FLR 250, for instance, an adoption order was held not to breach art. 8 ECHR.

The UN Convention on the Rights of the Child is also relevant .

Task 3. Translate the text in writingpaying attention to the words and grammar constructions in bold.

Eligibility for Adoption

(I) Who Can be Adopted? The child to be adopted must be under the age of 18 on the date of the adoption application , but an adoption order can be made if the child reaches 18 before the conclusion of adoption proceedings . An adoption order cannot be made, however, in any case if the child has reached the age of 19, or is, or has been, married .

(II) Who Can Adopt? A wider range of applicants can apply for adoption under the 2002 Act than under the 'old' law. Under the old law only married couples could make a joint application for adoption, but under the 2002 Act civil partners and cohabiting couples (opposite-sex and same-sex) can now apply . This has widened the pool of potential adopters for children in care. Applicants must satisfy certain domicile and age limit requirements. Applications for an adoption order can be made by a 'couple' or a sole applicant:

-a couple: a 'couple' means 'a married couple, or two people who are civil partners of each other, or two people (whether of different sexes or the same sex) living as partners in an enduring family relationship . A 'couple' does not include two people if one of them is the other's parent, grandparent, sister, brother, aunt or uncle . Each applicant must have attained the age of 21 , unless one of the couple is either the mother or father of the child, in which case that person need only have attained the age of 18 .

-a sole applicant: the applicant must have attained the age of 21, and must not be married . However, a married person can make a sole application if the court is satisfied that: his or her spouse cannot be found; or that they are separated permanently and are living apart; or that the other spouse is incapacitated from applying because of physical or mental ill-health .

(IIi) Step-Parent and Partner Applicants A step-parent or partner of the parent of the child can make a sole application to adopt a step-child or the child of his or her partner, provided the applicant has attained the age of 21. This provision removes the anomaly under the old law which required a step-parent to make a joint application for adoption with the child's parent. As an alternative to adoption, a step-parent or partner might consider becoming a special guardian of the child, or obtain parental responsibility for the child, or obtain a residence order in respect of the child (which can be extended until the child reaches the age of 18) .

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(IV) Domicile Requirements At least one of the couple or the single applicant must be domiciled in part of the British Islands; or both of the couple have been, or the single applicant has been, habitually resident in part of the British Islands for a period of not less than one year ending with the date of the application .

Task 4. Read the text and render it into Russian.

Child Protection and Placement Agreements

A. Hague Convention on Jurisdiction, etc., for the Protection of Children 1996

The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 International Laws: Children’s Rights – August 2007) covers a wide range of civil child protection measures, “from orders concerning parental responsibility and contact to public measures of protection or care, and from matters of representation to the protection of children’s property.” The Preamble confirms “that the best interests of the child are to be a primary consideration.” Article 2 stipulates that the Convention is applicable “to children from the moment of their birth until they reach the age of 18 years.” The 1996 Convention provides a structure to resolve disputes over contact and custody issues when parents are separated and living in different countries and has uniform rules to determine which country’s authorities are competent to take the necessary protection measures. Provisions on recognition and enforcement ensure that primacy be given to decisions taken by the authorities of the country where the child has his or her habitual residence, reinforcing provisions of the 1980 Hague Convention (see below). There are also provisions on cooperation procedures to better protect unaccompanied minors who cross borders and are in vulnerable situations and children placed in alternative care across frontiers. The latter includes arrangements such as foster care and the Islamic law institution of Kafala, a functional equivalent of adoption falling outside the scope of the 1993 Intercountry Adoption Convention (see below).41

B. Hague Convention on Jurisdiction, etc., Relating to Adoptions 1965

The Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions (1965 Convention), the first Hague Convention on the issue, apparently has no contracting parties at present. The Convention is applicable “to all international adoptions, not only where a child originated from another country but also to adoptions where the only international aspect is the foreign nationality of the child.” It has been characterized as incorporating four important provisions.

C. Hague Convention on the Protection of Children in Intercountry Adoption 1993

The Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (1993 Convention), has three stated aims: to establish safeguards to ensure that intercountry adoptions are in the best interest of the child and in accordance with the child’s fundamental rights; to establish a system of safeguards to avoid abuses such as trafficking in children; and to secure recognition in States Parties of adoptions made in accordance with the Convention (article 1). The underlying principle of the 1993 Convention is that “although it is difficult to define the best interests of the child, the child’s interests should always take priority over those of the prospective adopters,” but the application of this principle has proved problematic. The 1993 Convention asserts that authorities must ensure, taking into account the age and degree of maturity of the child, that he or she has been

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counseled and informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required; that consideration has been given to the child’s wishes and opinions; that the child’s consent to the adoption has been given freely, in the required legal form, and in writing; and that consent has not been induced by payment or compensation of any kind (article 4(d)). Information on the child’s origin, in particular the identity of the parents as well as the medical history, should be preserved, but access by the child to that information is permitted only insofar as it is allowed by the law of the State where it is held (article 30).

Task 5. Read the “Convention on Protection of Children and Co-operation in respect of Intercountry Adoption”, Chapters II and IV, and translate the text in writing.

CHAPTER II – REQUIREMENTS FOR INTERCOUNTRY ADOPTIONS

Article 4

An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin –

a)have established that the child is adoptable;

b)have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child's best interests;

c)have ensured that

(1)the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2)such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3)the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4)the consent of the mother, where required, has been given only after the birth of the child; and

d) have ensured, having regard to the age and degree of maturity of the child, that

(1)he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2)consideration has been given to the child's wishes and opinions,

(3)the child's consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4)such consent has not been induced by payment or compensation of any kind.

Article 5

An adoption within the scope of the Convention shall take place only if the competent

authorities of the receiving State –

a)have determined that the prospective adoptive parents are eligible and suited to adopt;

b)have ensured that the prospective adoptive parents have been counselled as may be necessary; and

c)have determined that the child is or will be authorised to enter and reside permanently in that State.

CHAPTER IV – PROCEDURAL REQUIREMENTS IN INTERCOUNTRY ADOPTION

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Article 14

Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.

Article 15

(1) If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care.

(2) It shall transmit the report to the Central Authority of the State of origin.

Article 16

(1)If the Central Authority of the State of origin is satisfied that the child is adoptable, it

shall –

a) prepare a report including information about his or her identity, adoptability, background, social environment, family history, medical history including that of the child's family, and any special needs of the child;

b) give due consideration to the child's upbringing and to his or her ethnic, religious and cultural background;

c) ensure that consents have been obtained in accordance with Article 4; and

d) determine, on the basis in particular of the reports relating to the child and the prospective adoptive parents, whether the envisaged placement is in the best interests of the child.

(2)It shall transmit to the Central Authority of the receiving State its report on the child, proof that the necessary consents have been obtained and the reasons for its determination on the placement, taking care not to reveal the identity of the mother and the father if, in the State of origin, these identities may not be disclosed.

Article 17

Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if –

a)the Central Authority of that State has ensured that the prospective adoptive parents

agree;

b)the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin;

c)the Central Authorities of both States have agreed that the adoption may proceed; and

d)it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.

Article 18

The Central Authorities of both States shall take all necessary steps to obtain permission for the child to leave the State of origin and to enter and reside permanently in the receiving State.

Article 19

(1)The transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.

(2)The Central Authorities of both States shall ensure that this transfer takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive or prospective adoptive parents.

(3)If the transfer of the child does not take place, the reports referred to in Articles 15 and 16 are to be sent back to the authorities who forwarded them.

Article 20

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