Court/Judicial body: Supreme Court of the Russian Federation
Date: December 20, 2005 CRC
Provisions: Article 21: Adoption
Other international provisions: Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, Articles 16 (relationship between prospective adoptive parents and child), 17 (preferred adoption in country of origin)
Domestic provisions: Constitution of the Russian Federation, Article 62(3) (equal rights for citizens and non-citizens) Family Code, Chapter 19 (adoption), Article 124 (priority to adopt Russian children given to Russian citizens residing in Russia) Code of Civil Procedure, Chapter 29 (adoption appeals)
Background: R. B., a U.S. citizen, applied to adopt a Russian child with serious health conditions, and the regional court of first instance denied the application on the grounds that Russian children should preferably be adopted by Russian families living in the country. After new evidence revealed that there had been unsuccessful attempts to place the child with a Russian family, R.B. again applied with the court of first instance to adopt the child. The court approved the second application, but the Public Prosecutor filed a complaint stating that this approval was unlawful given that the Code of Civil Procedure prohibits multiple applications by the same party on the same matter.
Issue and resolution: Inter-country adoption. The Supreme Court approved the adoption, finding that national law did not prohibit repeated applications to the court in adoption matters.
Court reasoning: Despite the Public Prosecutor’s claims, national legislation on adoption does not prohibit prospective adoptive parents from re-applying to adopt the same child with the same court, especially where new evidence is introduced to remedy omissions in the initial hearing. Here, this additional evidence established that Russian authorities had failed to place the child with a Russian family for a lengthy period of time.
Excerpt citing CRC and other relevant human rights Pursuant to Articles 16 and 17 of the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, UN Doc A/RES/41/85, UN General Assembly, 3 December 1986 (Declaration) and Article 21 of the Convention on the Rights of the Child (20 November 1989) 1577 UNTS 3; UN Doc A/RES/44/25, in force since 2 September 1990 (CRC), inter-state adoption might have been considered as an alternative means of placing a child with a family only if the child could not be placed with a foster family or an adoptive family in the country of origin, or if the child could not in any suitable manner be cared for in the country of origin. The above-mentioned provisions of international and Russian national law, as well as the international rules contained in the Declaration, which protect the interests of the child, were observed during the adoption proceedings in this case.
Follow up: This court decision is now cited in the commentary to Article 124.4 of the Russian Family Code as precedent that courts may authorise the inter-country adoption of Russian children if evidence is presented that Russian authorities exhausted all means to place a particular child with a Russian family. The commentary is available at http://law.kodeks.ru/egov/index?tid=0&nd=9015517&prevDoc=9015517&mark=3VVVVV636O95690078DUI000002D0078DUI000002D000002E12L9UHF.
CRIN comments: CRIN believes that this decision is consistent with the CRC. As noted by the Court, Article 21 of the Convention permits inter-country adoption where, as here, a child cannot be placed in a suitable foster or adoptive family in his or her country of origin.
Citation: Определение Верховного Суда РФ от 20.12.2005 N 88-Г05-19 // «Бюллетень Верховного Суда РФ», 2006, N 10
Link to Full Judgment: http://www.advocate-realty.ru/practices/unitsp/?id=389398