Identification of the origin of children (some disputable aspects)

The cases connected with identification of the origin of children make one of the most important categories of the disputes heard by courts of law in civil legal proceedings. The importance of these cases is determined by standards of the Convention of the UN "On the Rights of the Child", the Constitution of the Russian Federation (Article 38), the Federal law "On Basic Guarantees of the Rights of the Child in the Russian Federation". Concrete legal regulation of the relations in the course of identification of the origin of children, including the order of judicial protection of the rights of the child and other subjects of this legal relationship is exercised by the relevant standards of the Family Code and the Civil procedure Code of the Russian Federation. The resolution №. 16 of the Plenum of the Supreme Court of the Russian Federation of May 16, 2017 "On application of legislation by courts when hearing the cases connected with identification of the origin of Children" is devoted to the application of rules of the Family Code (the FC of RF)and the Civil Procedure Code of the Russian Federation (the CPC of RF). The rules of international law and national legislation connected with the rights of the child proceed from the need to ensure the priority protection of his rights and legitimate interests when courts hear the cases about identification of the origin of children. This provision was confirmed in the resolution № 16 of the Plenum of the Supreme Court of the Russian Federation of May 16, 2017 No. 16. However, in practice the principle of priority protection of the rights and interests of the child is not always observed. The case of kidnapping of the baby from a hospital in Dedovsk near Moscow that received a wide public response is given as an example. The position of the Plenum of the Supreme Court of Russia on defining the consequences of application to the court in the dispute connected with identification of the origin of the child before his birth (Item 6 of the Resolution) is criticized. It is proposed not to refuse such claims (Article 134 of the CPC of RF), and to return it on the basis of Article 135 of the CPC of RF. The proposal is supported by references to the provisions of the theory of the right to bring an action and the analysis of the relevant standards of procedural legislation. The Explanation of the Plenum concerning application of Item 3, Article 62 of the FC of RF (Item 7 of the Resolution) proves to be insufficiently full since it ignores the question of the procedural status of juvenile parents at the age of 14 in paternity lawsuits in relation to their children. As a claimant in such cases is the child, his juvenile parents should have the status of lawful representatives then. In this case Item 3, Article 62 of the FC of RF is not consistent with the provisions of the CPC of RF (Part1, Part 2, Article 37, Article 49) according to which only capable persons can be representatives in court. Until the amendment of Item 3, Article 62 of the FC of RF the inconsistency can be eliminated by practical application of Part 1, Article 1 of the CPC of RF about the priority of civil procedural norms.

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