- Cancellation of adoption in Ukraine
- Grounds for cancellation of adoption in Ukraine
- What is meant by the concept of cancellation of adoption in Ukraine
- Court decision to revoke the adoption in Ukraine
- Cancellation of adoption due to failure of the adoptive parents to fulfill their obligations in Ukraine
- Termination of adoption for health reasons of adoptive parents in Ukraine
- Cancellation of adoption due to illness of a child in Ukraine
- Behavioral factors as a reason for canceling adoption in Ukraine
- Judicial practice in cases of cancellation of adoption in Ukraine
- Cancellation of children adopted by age in Ukraine
- Family Counsel for Cancellation of Adoption in Ukraine
Cancellation of adoption in Ukraine
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Adoption can be canceled by a court decision if:
- it contradicts the interests of the child, does not provide her with family education;
- the child suffers from dementia, mental or other serious incurable illness, which the adoptive parent did not know and could not have known at the time of adoption;
- between the adoptive parent and the child, regardless of the will of the adoptive parent, relations have developed that make it impossible for them to live together and the adoptive parent to fulfill his parental responsibilities.
Grounds for cancellation of adoption in Ukraine
Cancellation of adoption is not allowed after the child reaches the age of majority.
The following grounds are for cancellation of adoption:
- Adoption may be canceled after the child reaches the age of majority if the unlawful behavior of the adopted parent threatens the life and health of the adoptive parent, adopted child or other family members.
- Adoptions of an adult may be canceled by a court by mutual consent of the adoptive parent and the adopted child, or at the request of one of them, if family relations have not developed between them.
Adoption is canceled from the date of entry into force of the court decision.
According to Part 1 of Art. 14 of the Law of Ukraine “On the Protection of Childhood”, children and parents should not part against their will, except in cases where such separation is necessary in the interests of the child and this is required by a court decision that has entered into legal force. An example of such an exception is the revocation of an adoption.
What is meant by the concept of cancellation of adoption in Ukraine
The cancellation of adoption in the doctrine of family law is considered as the termination of relations arising from the fact of adoption for the future, in order to protect the rights and interests of the child, by making a court decision to cancel the adoption.
At the same time, the cancellation of adoption cannot be a measure directed against the adopted person, “a sanction for the unworthy behavior of a child” (decision of the Court of Appeal. Kiev dated 17.12.2007. Based on the case file “Kurochkin v. Ukraine”). The implementation of measures that lead to the separation of the formed family hearth, including the adoption by the court of a decision to cancel the adoption, is justified, given the sufficiently convincing and balanced arguments that take into account the interests of the child. The interests of the child always take precedence (part 1 of article 14 of the European Convention on Adoption).
Court decision to revoke the adoption in Ukraine
Cancellation takes place in a judicial proceeding according to the rules of the claim procedure.
According to Part 1 of Art. 238 SK, adoption can be canceled by a court decision if it contradicts the interests of the child, does not provide her with family education.
Considering that the norms of the Investigative Committee establish the peculiarities of the legal consequences of the cancellation of adoption due to the fact that it contradicts the interests of the child, does not provide her with family upbringing, namely, the preservation in this case of the child, is not transferred to the parents, the right to live in the living quarters in which she lived after adoption, and the possibility of collecting alimony for the child from the adoptive parent, this makes it possible to conclude that the lack of family upbringing means that the conflict of adoption with the interests of the child, the failure to provide family upbringing in these cases is due to the guilty actions or inaction of the adoptive parent.
Cancellation of adoption due to failure of the adoptive parents to fulfill their obligations in Ukraine
That is, “not providing family education” in this case can be understood as the failure or improper performance by the adoptive parent of his responsibilities for the upbringing and development of the child in a family. However, according to Art. 242 CK of the adopter’s evasion from fulfilling his responsibilities for raising a child is the basis for depriving the adopter of parental rights (Article 164 of the CK), which entails the onset of completely different legal consequences.
Adoption may be canceled even if there is no illegal behavior in the actions of the adoptive parent, if the impossibility of fulfilling parental responsibilities is associated with a sudden deterioration in health.
Termination of adoption for health reasons of adoptive parents in Ukraine
So, for reasons of poor health – the depressed state of the adoptive parent, the spouses of the adoptive parents from Spain asked to cancel the court decision on adoption, since they cannot provide the child with the necessary care and cannot provide her with proper upbringing.
Suvorovsky District Court. Odessa by a resolution of 11/14/2007. Accepted the said application for production and 11/16/2007. He made a decision, by which he canceled his decision on adoption, which actually made a turn in its implementation – he returned the child to a child care institution and the obligations “tied the appropriate the body of state registration of acts of civil status to make changes in the deed of his birth.At the same time, in the case, the decision on which was canceled, there is no information about this.
It should be noted that in deciding this case, the court grossly violated the law. Consideration of an application for cancellation of a court decision is not provided for by law. In the above case, Spanish citizens had to go to court with an application to cancel the adoption, and not with an application to cancel the court decision Of the Supreme Court of Ukraine dated 11.12.2008. Https://zakon.rada.gov.ua/laws/show/n0020700-08.
Cancellation of adoption due to illness of a child in Ukraine
In accordance with paragraph 2 of Part 1 of Art. 238 SK, adoption can be canceled by a court decision if the child suffers from dementia, mental or other serious incurable illness, which the adoptive parent did not know and could not have known at the time of adoption. The specified norm, in contrast to clause 1 of h. 1 of Art. 238 SK, aimed at protecting the interests of the adoptive parent. In life, cases are not excluded when, after the adoption of a child with the expiration of a certain period of time, she manifests hereditary diseases, mental retardation, the consequences of alcoholism (drug addiction) of blood parents, and the like.
Sometimes the nature of the child’s illness does not leave the adoptive parent with hope for her recovery. Then the question arises: how should adoptive parents behave in such cases? Undoubtedly, the best option for the behavior of adoptive parents will be the future life with the child, support for the child in a difficult life period. However, this is the best option from the point of view of the interests of the child, but the interests of the adoptive parents must also be taken into account. After all, not every adoptive parent will be able to continue living with a sick child due to objective circumstances. The objectivity of these circumstances can be established by the court on the basis of forensic psychiatric, forensic medical examinations.
For this, the judge in the preparatory hearing on the claim for the cancellation of adoption, if there is sufficient data on the mental illness of the child, decides on the appointment of a forensic psychiatric examination to determine his mental state, or, if there is sufficient evidence of a serious incurable illness, to appoint a forensic medical examination to determine the state of his health (clause 8, part 2, article 197 of the Code of Civil Procedure).
Considering the above, if the adoptive parent brings convincing arguments confirming that further living with the adopted child significantly complicates or makes impossible the process of his upbringing, the adoption should be canceled.
Behavioral factors as a reason for canceling adoption in Ukraine
Adoption may be canceled by a court decision if, regardless of the will of the adoptive parent, a relationship has developed between the adoptive parent and the child that makes it impossible for them to live together and the adoptive parent fulfills his parental duties (clause C, part 1 of article 238 of the SK).
In general, the difficulties of an adopted child joining a new family are different. In life, there are cases when more than one year passes, and the efforts to establish real family relations between the adoptive parents and the adopted child do not give the desired result. Worse is the situation when, soon after adoption, a mutual hostility develops between the adoptive parent and the adopted child, which goes beyond the normal conditions of family upbringing. Then the sooner the adoption is canceled, the better, first of all, for the child.
Speaking about the difficulties that arise between adults and a child, it should be noted that most often it is possible to foresee possible complications even in the process of preparing for adoption, selecting adoptive parents.
For example, there are cases when a spouse who has lost her own child, and they cannot have another, tries to replace the lost child through adoption. But no substitution (substitution) is possible here, if only because children are different and individual. And if the native child had certain special character traits, then the new (not blood) child for some reason seems constrained, wild, difficult to communicate. Such a contrast can extinguish the desire to have a second child, extinguish the impulse to become the child’s real parents. And as a result – mutual alienation, unlawful methods of education, a desire to get rid of the obligations assumed. It is in such cases that it seems appropriate to cancel the adoption.
Judicial practice in cases of cancellation of adoption in Ukraine
Provided by clause З of h. 1 of Art. 238 of the UK, the grounds for canceling the adoption is complex both from the standpoint of determining the subject of evidence and from the standpoint of the priority of the child’s interests. In this context, the decision of the European Court of Human Rights in the case “Kurochkin v. Ukraine” of 20.05.2010 is indicative (“Kurochkin v. Ukraine”: Decision of the European Court of Human Rights of 20.05.2010. Https: //zakon.rada .gov.ua / laws / show / 974_841.
In the circumstances of the case, on August 9, 2007, the Shevchenkovskiy District Court granted the petition of V.V. Kurochkin’s ex-wife and canceled the adoption by her and the applicant V.G. 238 SK, the court noted that the adoption of the child by the ex-wife of V.V. Kurochkin should be canceled due to the fact that the relationship that developed between her and the child had deteriorated and made it impossible for them to live together.
In motivating the decision, the court relied on the testimony of K. and the medical evidence of the bodily harm inflicted on her. The court also referred to the testimony of the neighbors of this family and the description of V.G. of the school dated August 9, 2006, in which it was noted that he was behaving aggressively, offending others, threatening them and several times hitting some of his schoolmates. In the profile dated August 9, 2006, it was also noted that his aggressive behavior and disrespect for others are hereditary traits, in connection with which specialists should be involved in his upbringing. The guardianship and trusteeship authority supported K.’s claims and stated that the cancellation of the boy’s adoption was in his interests.
The National Court also noted that in the main interests of the child it is also necessary to cancel the adoption of the child by V.V. Kurochkin, despite the fact that in court the boy expressed a desire to stay with his adoptive father. The court found that the applicant had not responded to the boy’s aggressive behavior towards his adoptive mother, as a result of which the boy developed a negative attitude towards women and a misconception about normal family relations. The court ruled to transfer the boy to the guardianship and guardianship authority for further placement in a specialized institution. VG continued to live with the applicant, but he was never placed under guardianship.
The European Court of Human Rights, following the results of consideration of the application filed against Ukraine by the citizen of Ukraine V.V. Kurochkin, stated that the facts in the case did not indicate that the national authorities had carried out a thorough analysis of the possible consequences that could have on the future welfare of the orphan child. abolition of adoption, and did not investigate any other, less stringent, alternative measures that could ensure the elimination of the alleged deficiencies in the upbringing and development of V.G. and the fulfillment by the state of its duty to preserve family unity. On the other hand, the domestic authorities placed the burden of proof on the applicant, setting the condition not to revoke the adoption – he had to prove his ability to properly influence and raise the boy, despite the fact that both the applicant and the boy had a desire to continue living as one family.
The Court further notes that following the cancellation of the adoption and the decision to place the boy under guardianship, he continued to live with the applicant. A few months after the adoption was revoked, the guardianship and guardianship authority appointed the applicant VG’s guardian, instructing him to ensure “the protection of the rights and property interests of the child”, as well as “financial support and constant care for the boy’s upbringing and his physical and personal development”. These further actions do not seem to be such, confirming the domestic courts’ conclusions about the applicant’s inability to provide for VG’s upbringing in a family environment.
In view of the above, the Court considers that the findings of the domestic courts, which motivated the revocation of VG’s adoption by the applicant, were not supported by relevant and sufficient grounds to justify such an interference with the applicant’s family life.
So, the defining feature of the cancellation of adoption is the impossibility of the existence or preservation of family relations between the adoptive parent and the adopted person.
However, if, when considering a claim for cancellation of adoption, the court concludes that the cancellation of adoption is contrary to the interests of the child, there are grounds for normalizing relations between the adoptive parent and the child, the claim for cancellation of adoption will be refused, and the adoptive parents may be asked to take measures to improve relations with the child. …
In this context, it should also be noted that, having discovered during the consideration of cases on the cancellation of adoption, the facts of the commission of actions by officials, in which signs of a crime under Art. 169 of the Criminal Code (illegal actions on adoption), the courts must respond to this with separate resolutions (paragraph 8, clause 13 of the resolution of the Plenum of the Supreme Court of Ukraine “On the practice of law enforcement by courts when considering cases of adoption and deprivation and restoration of parental rights”).
Cancellation of children adopted by age in Ukraine
According to Part 2 of Art. 14 of the European Convention on the Adoption of Children, adoption can be canceled before the child reaches the age of majority only for serious reasons provided by law.
Part 2 of Art. 238 SK establishes that the cancellation of adoption is not allowed after the child reaches the age of majority.
Adoption may be canceled after the child reaches the age of majority if the unlawful behavior of the adopted parent threatens the life and health of the adoptive parent, adopted child or other family members.
The case-law of the European Court of Human Rights knows of cases when the decision to revoke (in the original on the case file – annulment) of the applicant’s adoption was made 31 years after the adoption act and 18 years after the death of the adoptive parent (decision in the case of Zaiet vs Romania on 03.24.2015 p.).
This decision is interesting in that the Court has emphasized the following points in it:
- separation of the family is a very serious interference, and any such measures must be based on sufficiently significant and weighty grounds, not only in the interests of the child, but also in relation to legal certainty;
- annulment of an adoption cannot be a measure against the adopted person and the legal provisions governing adoption are generally aimed primarily at protecting the interests of children;
- if further investigation shows that the final decision on adoption was based on fraudulent or misleading evidence, then the interests of the child should remain decisive when considering any harm caused to the adoptive parent as a result of the unlawful decision (Mamchenko N. Practice of the European Court in the issue of adoption . https://sud.ua/ru/news/sud-info/91689-praktika-evropejskogo-syda-v-voprose-ysinovleniya.
- In the event of the adoption of an adult person, it can be canceled in two cases:
- in the presence of mutual consent of the adoptive parent and the adopted child to terminate the legal relationship of adoption;
- at the request of the adoptive parent or adopted person in the absence of established family relations, the achievement of which is the purpose of adoption. The circumstances that can be recognized by the court as such that indicate that the family relationship between the adoptive parent and the adopted person did not work out include the abuse of alcohol or drugs, the creation of conditions that are impossible for living together, the facts of violence against the adoptive parent or adopted person or other family members and the like.
Adoption is canceled from the date of entry into force of the court decision (part 4 of article 238 SK).
According to Part 1 of Art. 273 Code of Civil Procedure, the court decision comes into legal force upon the expiration of the deadline for filing an appeal by all participants in the case, if the appeal has not been filed. In the case of filing an appeal, the decision, if it is not canceled, comes into legal force upon the return of the appeal, refusal to open or close the appeal proceedings, or the adoption of the decision of the court of appeal based on the results of the appeal review (part 2 of article 273 of the Code of Civil Procedure).
From the date of entry into force of the court decision on the cancellation of the adoption, the legal consequences of the cancellation of the adoption, provided for by Art. 239 SK.
Family Counsel for Cancellation of Adoption in Ukraine
For an effective decision on the cancellation of adoption, you should contact professional family lawyers.
- provide legal advice on family matters;
- will help to determine the best option for solving a family case;
- prepare all the necessary documents;
- will provide legal support for the entire trial.
Our family lawyers will do everything necessary for a quick and high-quality completion of a legal case!
If you do not know how to do the right thing to decide the case in your favor – write or call our family lawyers!
The first step on the road to success in resolving an adoption cancellation case is to contact good family lawyers!
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