Can guardianship authorities prohibit it? The nuances of visits by guardianship authorities without warning

According to the law, children from 14 to 18 years old can make transactions only with the consent of their legal representatives (parents), and children under 14 years old cannot make transactions themselves at all - their parents act for them, with the exception of cases specifically listed in the law (,). At the same time, parents do not have the right, without the prior permission of the guardianship and trusteeship authority, to make transactions (or give consent to their completion), if as a result of this the child’s property is alienated or otherwise reduced or the child renounces the rights belonging to him (, and the Federal Law of April 24, 2008 No. 48-FZ "On guardianship and trusteeship").

The guardianship and trusteeship authorities, checking the legality of the transaction for the alienation of real estate, establish whether it corresponds to the interests of the minor and whether the living conditions of the minor are worsened if he is not the owner of the alienated residential premises, or whether his property is reduced if the minor is the owner apartments. Permission to carry out a transaction must be expressed clearly and unambiguously; it must contain an indication of what kind of transaction (purchase and sale, exchange, pledge, etc.) and under what conditions it is permitted to conclude. But the main criterion in this case is that such conditions should not in any way diminish the property rights or infringe on the legitimate interests of the minor.

At the same time, the Constitutional Court, in its No. 119-O dated March 6, 2003, came to the conclusion that from the contents of paragraph. 2 and the right of guardianship and trusteeship authorities to arbitrarily prohibit transactions for the alienation of property of minor children made by their parents does not follow; on the contrary, in accordance with the general principles of law and requirements, and, decisions of the guardianship and trusteeship authorities - in the event of their appeal in court - are subject to assessment based on the specific circumstances of the case.

For example, judicial practice proceeds from the fact that to withdraw funds from an account opened in the name of a child, permission can be issued to the guardian not only for a one-time act, but also, for example, for the disposal of funds unlimited in the number of withdrawals and the amount of funds until a child of a certain age (usually up to 16 years old, when he can do this himself) (see, for example, the decision of the Novozybkovsky City Court of the Bryansk Region dated March 4, 2011). A person who is not the legal representative, guardian or custodian of a child cannot be given permission from guardianship to dispose of the minor’s money: for example, in one of the cases, the grandfather opened a deposit in the name of his grandson, but after some time he changed his mind and decided to take the money, but neither the guardianship authority, neither the court could satisfy his desire (Khimki City Court, Moscow Region, July 18, 2012).

In another situation, the mother decided to sell shares in the authorized capital of the LLC, which belonged to her daughter by inheritance after the death of her father, at a price four times less than what was indicated in the certificate of inheritance, while the decrease in the value of the property was not justified in any way. As a result, the guardianship authority refused to issue a permit for the sale, and the court agreed with it (decision of the Nefteyugansk City Court of the Khanty-Mansiysk Autonomous Okrug - Ugra, Tyumen Region dated February 1, 2012 in case No. 2-296/2012).

The objections of the second parent regarding the transaction are not an unconditional basis for the refusal of the guardianship authority - it is checked to what extent the transaction corresponds to the interests of the child, and not the parents (one of them). Thus, according to the procedure approved by the municipal act, both parents had to apply to the guardianship authority to obtain permission, including in the event of divorce between them; a statement from one parent could only be accepted from a single mother or if the second parent was declared missing. However, the court found this provision to be inconsistent with the law, since it limits the rights of parents - after all, federal legislation does not provide for the mandatory agreement by parents regarding the property rights of their child (see, for example, the decision of the Khanty-Mansiysk District Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated May 17 2011 in case No. 2-1249/11).

Moreover, if the disagreement of the second parent is motivated by objective reasons - that is, that the transaction is contrary to the interests of the child, and this is confirmed as a result of an inspection carried out by the guardianship authority - then the court recognizes the refusal of the guardianship authority to give consent to the transaction as lawful. So, in one of the trials, a case was considered where the mother, father and child each had 1/3 shares in the apartment. The mother sold her share to a stranger and then asked the guardian for permission to sell the share and the child, but the father objected. After selling her share, the mother did not purchase any housing in return, continued to live with her child in someone else’s living space in the apartment of her new husband, and with the proceeds from the sale of the child’s share she planned to purchase an apartment in another city for rent, and not to improve the child’s living conditions. The guardianship authority, naturally, refused to issue a permit for the sale, and the Zelenogradsky District Court of Moscow supported it. In another case, the mother asked for the consent of the guardianship authority to sell an apartment belonging to her daughter, since they lived elsewhere in a private house and she did not have the funds to maintain this apartment; she planned to spend the money from the sale on her needs and the needs of her children, and not to purchase a home for my daughter. Naturally, the court recognized the refusal of guardianship as lawful (see the decision of the Tashtagol City Court of the Kemerovo Region dated October 22, 2010 in case No. 2-855/10).

As a rule, as a condition for issuing a permit, the guardianship authority sets the acquisition by a minor of rights to residential premises “no worse and no less than before,” and in some cases it is sufficient to indicate in the resolution of the guardianship authority the mandatory acquisition of living space in the name of the minor and the submission to the guardianship of a sales agreement with inclusion of an appropriate condition in it (see also the Ministry of Education of Russia dated June 9, 1999 No. 244/26-5 “On additional measures to protect the housing rights of minors”), and in others, guardianship requires that the child be endowed with the appropriate rights in advance, before extradition permission, and the parent’s obligation to give the child a share in the future is considered insufficient (see, for example, the decision of the Kogalym City Court of the Khanty-Mansiysk Autonomous Okrug - Ugra dated October 13, 2011). For example, in one case, the guardianship authority suggested that the mother give the child a share in another residential area in advance, which was done by donating a share in the apartment belonging to the child’s grandmother. However, when this agreement was presented to the guardianship, she refused to issue permission for the sale, and the court supported it, since it considered that evidence should be presented that the money from the sale of the existing apartment would be used to buy housing for a minor, and that someone before that I decided to give him a share in my apartment, has no legal significance (decision of the Kirovsky District Court of Irkutsk dated November 9, 2011 in case No. 2-4218/2010). At the same time, in another court case, the parent concluded not even the main, but only a preliminary gift agreement, and did not provide evidence that he was going to purchase any other housing - and the court declared the refusal of guardianship unlawful (decision of the Yurga City Court of the Kemerovo Region dated September 28, 2011 in case No. 2-1760/2011). Thus, here we can state a wide range of opinions, both from guardianship authorities and courts, regarding what exactly can be an appropriate confirmation of the parents’ intentions to give the minor the rights to other housing instead of the alienated one.

If the housing being sold was a comfortable apartment or room located in the city center and close to the institutions the child attends (kindergarten, school), and the purchased housing, although larger in area and is not a communal apartment, is located on the outskirts, is poorly equipped, and has a high percentage of wear and tear - Guardianship authorities usually refuse to approve the transaction and the courts agree with them. Thus, in one of the court cases, a tenth-grader owned a 20-meter room in a fully equipped communal apartment in a multi-apartment brick building with high ceilings next to his school, and an almost 70-year-old wooden residential building, 2/3 of which the parent planned to buy in his name a minor, was in a landslide zone on the edge of the city, his living area was only 40 meters, and there was no heating, no water, no sewerage. The refusal of the guardianship authority to give consent to the sale of the property of a minor in such a situation was recognized by the decision of the Traktorozavodsky District Court of Volgograd dated September 24, 2010 as legal and justified.

Certain difficulties may arise if the residential premises purchased in return do not yet exist - for example, if the apartment is purchased under a shared housing construction agreement. In one of the cases, the guardianship authority refused to give a parent permission to sell an apartment in which her daughter had a share, since it considered that the acquisition of a shared construction project in a residential building under construction for a minor does not guarantee that she will have ownership rights to this object, but that the property built in As a result, the apartment may turn out to be smaller than specified in the contract, and the child’s housing rights may be infringed. The court, having carefully examined the contract, found that its terms, for non-fulfillment of which the law established appropriate liability, indicate the opposite; the guardian's argument about a possible reduction in the area of the apartment when the house is put into operation is speculative; and the fact that the child does not acquire ownership rights in a newly acquired apartment simultaneously with the termination of her existing ownership rights to a residential apartment does not indicate a violation of her property rights and legitimate interests (see the appeal ruling of the Investigative Committee for civil cases of the Supreme Court of the Udmurt Republic dated August 29, 2012 in Case No. 33-2699). In another case, parents intended to sell an apartment with shares belonging to their children in order to build an individual residential building. In court, they presented evidence that they are conscientious parents: they have a job, a stable income, a vehicle, their places of work and residence are characterized positively, their children attend educational institutions, conditions are created for them to fully develop, so the court considered that they have no intention worsen the living conditions of children, and the refusal of the guardianship authority to issue a sales permit is illegal (decision of the Blagoveshchensky District Court of the Republic of Bashkortostan dated April 25, 2011 in case No. 2-319/2011).

A special situation is when co-owners of housing, a share in which belongs to a minor, intend to sell their shares to strangers. and provide in this case for the obligation to offer to buy out these shares to the child (if he is under 14 years old - to his legal representatives), and in the event of a refusal of the minor or his parent to exercise this preemptive right, it is necessary to obtain the consent of the guardianship authority for such a refusal (as for a transaction entailing the renunciation of rights belonging to the ward). The need to submit relevant documents for registration of a transaction is also indicated in the document approved by Order of the Ministry of Justice of the Russian Federation dated June 20, 2004 No. 126.

In one of the court cases, a mother was going to sell a room in a communal apartment that belonged to her and her child to an outsider, while the owners of other rooms in the apartment were also minors. Registration of the transaction was refused on the grounds that, among other documents, the refusals of the parents of these children to purchase the room for sale, as well as the permission of the guardianship authority for such a refusal, were not presented; and the Leninsky District Court of the city of Nizhny Tagil, Sverdlovsk Region, dated October 22, 2012, in case No. 2-2158/2012, recognized the refusal of the body for registration of rights to real estate as lawful. At the same time, as practice shows, if the transaction was actually executed, then such a refusal may not prevent the recognition of the buyer’s ownership of the acquired share in court (see, for example, the decision of the Tchaikovsky City Court of the Perm Territory on the claim of Salavat Minurasimovich Ramazanov).

If refusals from legal representatives are received (or corresponding purchase offers are sent to them, but they do not agree to purchase the share being sold within the period established by law), and there is no permission from the guardianship authority for such a refusal, as a rule, the courts also recognize refusals of registration as lawful. Thus, the Birobidzhan City Court of the Jewish Autonomous Region dated September 10, 2010 in case No. 2-2071/2010 considered that the suspension of state registration (and subsequent refusal of it) in this case is legal, since refusal to purchase, firstly, may entail a deterioration in the living conditions of the minor (due to the inclusion of strangers in the number of residents), and secondly, it is a denial of the rights belonging to the minor (see also the Investigative Committee for Civil Cases of the Kaliningrad Regional Court of February 29, 2012 in case No. 33- 748/2012, cassation ruling of the Investigative Committee for civil cases of the Yaroslavl Regional Court dated September 5, 2011 in case No. 33-5336, decision of the Yartsevo City Court of the Smolensk Region dated February 14, 2011 in case No. 2-294/2011, decision of the Rudnichny District court of the city of Prokopyevsk, Kemerovo region dated March 11, 2011 in case No. 2-808/2011, cassation ruling of the Investigative Committee for civil cases of the Smolensk Regional Court dated March 29, 2011 in case No. 33-971, decision of the Rodnikovsky District Court of the Ivanovo Region dated 7 July 2011). The legality of the requirement to obtain the consent of the guardianship and trusteeship authority to waive the preemptive right to purchase a share was verified in 2007 by the Supreme Court of the Russian Federation dated August 15, 2007 No. GKPI07-737, and more recently by the Constitutional Court of the Russian Federation on September 24, 2013 No. 1280-O , and in both cases, these provisions of the reviewed regulatory legal acts were found to comply with the law.

At the same time, there is an opposite approach to solving this issue. Thus, the Novokuibyshevsky City Court of the Samara Region, in its decision dated April 28, 2011, on the contrary, indicated that if there is an objection from the guardianship and trusteeship authority, the owner’s right to dispose of the property belonging to him is violated, and the permission or consent of the guardianship authority in such a situation is not required ( see also the appeal IC for civil cases of the Samara Regional Court dated April 5, 2013 in case No. 33-3198/2013, Moscow City Court dated July 13, 2012 No. 4g/7-5931/12, IC for civil cases of the Sverdlovsk Regional Court dated January 31, 2012 in case No. 33-636/2012). It seems that this point of view, despite its unpopularity among the judicial community, is more consistent with the meaning of the law.

Indeed, when selling a share to a stranger, a situation may arise that a child who previously lived only with persons with whom he is related will find himself in a situation where he is forced to live in the same living space with a stranger. At the same time, the fact that the child’s formal relative does not want to live with him and other relatives together and is ready to dispose of his share indicates that family ties between him and the rest of the family members have almost been lost (at least in terms of the possibility living under one roof) and are not strong enough, so there will be no significant difference between such a “relative” and a stranger living with a minor. In addition, if the apartment, even before the child moved in there, was already actually communal (that is, citizens who were not members of the minor’s family also lived in it, or such persons were among the co-owners and did not live in the apartment), then changing one of the co-owners will not will not change the current state of affairs and will not worsen the child’s living conditions.

It should also be noted that permission from guardianship in such a situation is given for such a legal action (transaction) as refusal to purchase, and not for the purchase or sale transaction itself. If the guardianship objects to the refusal, and the parents themselves, as representatives of the child, do not want (or cannot due to financial circumstances) acquire the share in the right offered to them, the guardianship cannot force them to do this. It turns out that in fact, the presence or absence of permission from guardianship to refuse in this case does not have any legal significance. Theoretically, if there are such objections, the seller has the right to consider that he has not received either a refusal or the consent of this minor co-owner (his representatives), wait for the period established by law and sell his share to a third party. True, in reality, the parties to a transaction carried out in this way may face certain difficulties when registering the transfer of rights in the form of the suspension and refusal of registration described above, which may not be able to be eliminated even in court. Of course, this situation is not normal and requires a more detailed legal regulation.

However, in the opposite situation - when the parents agree to acquire a share, and the guardianship objects - such a refusal by the guardianship authority (which is actually a permission or consent not to renounce the preemptive right, but to the disposal of funds belonging to the minor) certainly has legal significance and can be challenged in court. If the parents in such a situation do not act in the interests of the child (for example, if the purchase is offered at a clearly inflated price, or his property rights will be infringed for other reasons), the refusal of guardianship should be recognized as legitimate.

Employees of guardianship and trusteeship authorities, first of all, must exercise control over the protection of the rights of children and incapacitated citizens. In this regard, guardianship representatives are authorized to visit houses where minors and incompetent persons live in order to check their living conditions. But can guardianship authorities come without warning?

Powers of OOP

First of all, it is necessary to determine the list of powers of representatives of the PLO - it is contained in Art. 8 Federal Law “On guardianship and trusteeship”. In accordance with this article, the key powers of the guardianship authorities include:

Identification of persons who need guardianship or guardianship. Carrying out activities aimed at establishing guardianship or guardianship over such persons.
An appeal to a judicial authority in order to recognize a citizen as limited or completely incapacitated, or, on the contrary, capable, if the contrary was previously established.
Control over the activities of trustees and guardians, as well as organizations where incapacitated or partially capable persons are located.
Forced removal or voluntary release of trustees and guardians from their duties.
Issue for transactions with property belonging to the ward.
Drawing up agreements for trust management of the property of wards.
Representation of the interests of incapacitated (partially capable) citizens and minors, if the actions of trustees or guardians contradict the norms of current legislation (including if they refuse to protect the interests of their wards).
Selection from among citizens who have expressed a corresponding desire.
Conducting an inspection in order to identify the conditions in which wards are kept, as well as compliance with their rights and legitimate interests on the part of trustees/guardians.

It follows from the powers of PLO representatives that they have the right to identify persons in need of guardianship (including those under the age of majority) and monitor compliance with their rights and interests. In accordance with Art. 77 of the Family Code, if we are talking about a real threat to the life and health of a child, then he can be taken away immediately - both from his natural parents and from adoptive parents or guardians.

As a rule, signals about the presence of a threat to life and health come from concerned neighbors, the local police officer, as well as representatives of medical and educational institutions.

In this case, guardianship workers have the right to visit the house where the child lives in order to determine his living conditions (and the facts indicated in the complaint), and if they turn out to be unsatisfactory, a decision will be made on removal.

How to minimize the likelihood of visits from PLO employees?

Of course, it is impossible to completely exclude the possibility of a visit from representatives of the guardianship authorities, since a complaint can be filed on the basis of personal hostility (for example, there was a conflict between neighbors and one of them filed a complaint against the 2nd), however, take actions that will allow It is still possible to reduce the possibility of visiting them to a minimum.

So, in order to avoid a visit from the PLO, it is recommended:

Show the child to medical specialists in a timely manner (if he is being seen in a private clinic, the local police officer at the place of residence must be notified of this) and give the necessary vaccinations.
Prevent the use of violence against a child, both physical and mental.
Provide proper care for the child - his clothes must be clean, selected in accordance with weather conditions, in addition, he must always be fed and well-groomed (clean hair, trimmed nails, etc.).
Do not leave a small child alone - both at home and in public places.
Receive documents for the child in a timely manner.
Warn the teacher (teacher, teacher) if children attend sports clubs where there is a possibility of injury and abrasions (for example, football, wrestling, etc.). Otherwise, any bruise or abrasion may be perceived by the teacher as the result of unlawful actions against the child.
Maintain the home in proper sanitary conditions.
Do not abuse alcohol and do not use drugs.

If representatives of the PLO did come, then citizens have the right not to let them into their home, since the inviolability of the home is enshrined in the Constitution. However, if citizens are confident in themselves (their home is in order, their children are fed and dressed in clean clothes, and their parents are in a completely sane state), they can (if they wish) not interfere with the visit. If a decision has been made to let in representatives of the PLO, it is important to take into account that they do not have the right to inspect things or look into closets - moreover, it is also not recommended to leave employees unattended in the premises.

As mentioned above, citizens have the right not to allow guardianship representatives into their home (apartment), however, if there are compelling reasons (for example, the child’s life is in real danger), then guardianship officials can notify law enforcement officials, who will take the necessary measures , because they are the ones authorized to take these actions.

Thus, guardianship cannot independently enter their home without the consent of citizens, unless the latter express appropriate consent, and if there is an urgent need for this, all activities are carried out with the involvement of law enforcement agencies.

Complaint about the actions of the PLO

Often during visits, guardianship workers behave inappropriately:

They are rude to citizens.
They violate hygiene rules (they enter the apartment wearing shoes and outerwear).
They open cabinets and inspect the personal belongings of citizens.
They are trying to forcibly enter the house without any reason and without the presence of police officers.

In this case, citizens have the right to videotape, with the help of which it will then be possible to confirm this fact and then file a complaint.

The complaint is made in writing and usually contains the following information:

Name of the authorized body and full name. leader.
Information about the person filing the complaint (full name, address, telephone number).
Document's name.
Description of the circumstances, the occurrence of which became the reason for writing the complaint.
Information about the organization and the employee against whose actions the complaint is being made.
List of attached documents.
Date of document preparation and signature.

A complaint can be made to the head of the authorized body (ABO) or submitted to the prosecutor's office. When handing over the document in person, it is recommended to draw up a document in 2 copies - hand over the 1st to the authorized body, and put a mark of acceptance on the 2nd and keep it with you. Once received, the complaint will be considered within the time limits established by law, after which the applicant will be notified of the decision made.

Also, if there are significant violations on the part of guardianship officials, you can call the police. After the call, the police will come and find out all the circumstances.

If employees of the guardianship authorities conducted an inspection and did not have any significant comments, this does not mean that in the future they will not make a second visit - if suspicions of a violation of the child’s rights arise again, representatives of the PLO will come again. Accordingly, citizens must continue to take a responsible approach to their responsibilities and not violate the rights of minors.

What to do if PLO workers express a desire to take children away?

As mentioned above, in the presence of compelling circumstances (namely, when there is a real threat to the life and health of a minor), guardianship officials have the right to select the child and place him in an institution. After this, the question of deprivation of parental rights will be raised. Deprivation of parental rights to education is carried out only on the basis of a corresponding court decision. If citizens do not agree with the PLO’s arguments, they have the right to present their own and try to return the child.

Many modern parents think with horror about the likelihood of any contact with the guardianship authorities. Some are afraid of the need to interact to obtain permits and approvals, others are afraid that deranged women will break into their house and start counting the oranges in the refrigerator. These fears are especially typical for single parents, who, not unreasonably, feel much more defenseless than married couples.

The current legislation allows you to understand certain aspects of the activities of guardianship and trusteeship authorities and understand whether they are so terrible, and how best to interact with them, if necessary.

Who is under guardianship?

Let's start with the fact that at the all-Russian level there are no guardianship and trusteeship bodies. All of them are either executive authorities of a subject of the federation or local government. This immediately helps to understand where to go if you are dissatisfied with the activities of the guardianship authorities.

Unfortunately, it is only possible to find out which body is subordinate to whom on the spot - the law allows the subjects of the federation to vest such powers in local governments at their own will.

The main activities of the guardianship and trusteeship authorities are related to protecting the interests of children left without parents. Identification of such children, prevention of social orphanhood (this is the name for the situation when parents are alive, but in fact do not take part in the child’s life), placement of children in orphanages and foster families, training of future guardians and trustees are priority areas of activity of the guardianship authorities. Their scope of competence also includes protecting the interests of adult citizens under guardianship. Children raised by their parents do not receive much attention from the guardianship authorities, and the guardianship authorities do not have any dangerous powers or opportunities for legal interference in the private lives of law-abiding citizens. Considering that these bodies are usually chronically understaffed, law-abiding families have very little chance of becoming the subject of their unreasonable interest.

Children raised in their own family, as well as adopted children, have only a few powers of the guardianship and trusteeship authorities. Basically, we are talking about identifying and registering citizens who need to establish guardianship or trusteeship over them, and issuing permits to carry out transactions with the property of minors.

Identification and registration of citizens who need to establish guardianship and trusteeship is exactly the situation when representatives of the guardianship authority can show interest in each family. The reasons for this interest are described in the most general way in the Family Code. The most frightening provision is the right of guardianship authorities to immediately take a child away from their parents in the event of an immediate threat to the child’s life or health. According to the law, such selection is carried out by the guardianship and trusteeship authority on the basis of the relevant act of the executive authority of the constituent entity of the Russian Federation.

The law does not explain what kind of body this is, but in any case, such a body is not the guardianship and trusteeship body itself, and certainly not the local police officer, whom guardianship authorities often involve in participating in their activities.

If there is no immediate threat to the life and health of the child, the rights of the guardianship authority are limited to the ability to apply to the court for deprivation or limitation of parental rights. The law establishes an exhaustive list of situations in which this is possible. Thus, parental rights can be deprived if parents shirk their parental responsibilities (including paying child support), refuse to take their child from a maternity hospital or other institution, abuse their parental rights, abuse children, including carry out physical or mental violence against them, encroach on their sexual integrity, are sick with chronic alcoholism or drug addiction, have committed a deliberate crime against the life or health of their children or against the life or health of their spouse. Parents’ rights can be limited if leaving a child with parents is dangerous for the child due to circumstances beyond the parents’ control (mental disorder or other chronic illness, difficult circumstances, etc.), or if leaving a child with parents due to their behavior is dangerous for the child, but sufficient grounds for deprivation of parental rights have not been established.

The guardianship and trusteeship authorities do not have any other means of influence that oblige parents to do anything. On the contrary, then their responsibilities begin - to organize psychological, legal, medical and other support, to provide information and take other measures aimed at ensuring the child’s right to be raised in a family! All recommendations from higher federal authorities boil down to the fact that guardianship authorities owe a lot, can do little, and the threat to take a child away from the family is an extreme measure of influence on irresponsible parents.

Of course, various people and organizations that deal with a child from such a family (close relatives of the child, pre-school educational institutions, general educational institutions, commission for minors, etc.) can contact the guardianship authorities with a report about problems in a particular family. but even in this case, any intervention is possible only by the good will of the parents or by court decision.

The main reason why law-abiding, responsible parents come to the guardianship and trusteeship authorities is to obtain approval for transactions with property belonging to children. The law establishes the need for such approval for all transactions aimed at alienation, transfer for use and other reduction of a child’s property. In practice, only transactions for the alienation of real estate are approved, since few people would think of going to the guardianship authority to approve the transfer to neighbors of a used bicycle given to a child for the birthday before last, although this is required by law.

It often happens that a child is the owner of an apartment along with his parents or on his own (inheritance, privatization, etc.). In the event of the sale of such property, the Family Code, establishing the property rights of minors, refers us to the Civil Code, which obliges us to obtain the consent of the guardianship authorities. Otherwise, the transaction may be declared invalid. Remember - if the child is not the owner of the apartment, but is simply registered in it, then no approval is required.

Of course, the guardianship authorities have no right to arbitrarily refuse to approve a transaction - the refusal must be motivated. If we are talking about selling a family apartment for the purpose of expanding living space, refusal is unlikely. If parents want to sell a separate apartment that completely belongs to the child, and buy in return another one in which the child will own only a small share, then the validity of such a transaction will have to be proven. To issue a reasoned response, the guardianship authorities have the right to require the provision of documents and other information that gives an idea of the interests of the child (certificates of the value of real estate, floor plan, certificates of rent arrears, extracts from the house register, etc.), although the list of such There are no documents in the legislation. In any case, the refusal to approve the transaction can be appealed in court.

If the privatization of the apartment is on the agenda, and the child will not participate in the privatization, then permission from the guardianship authorities for such privatization will certainly be required. In this situation, the guardianship authorities have the right to request documents confirming that the child has ownership rights to other real estate (or guarantees that he will be granted such a right).

Unfortunately, in practice, parents’ fears associated with mistrust of the guardianship authorities lead to the fact that they try not to make children owners of property, that is, in most cases, it is the children’s property interests that suffer. But this is no longer a problem of the law, but of its implementation.

Do not forget that if, as a result of illegal actions or inaction of the guardianship and trusteeship authorities or officials of these authorities, harm (including moral) was caused to you or the child, then it is subject to compensation in accordance with the Civil Code.

Without prior warning, guardianship authorities can enter the home on the basis of Article 77 of the RF IC if the child is in danger of life and health.

Guardianship authorities can come to any apartment where a child lives, based on an application from the local pediatrician, school or kindergarten, and maybe even from those who live next door, to check whether the child’s rights are being violated. They may pay closer attention to a family in which a child was born at home without medical supervision of the pregnant woman and continues to remain unregistered. Authorized persons can easily see this as a desire for infanticide and will try to take away minor children.

Juvenile justice is a position aimed at preventing child abuse and reducing child mortality in the family. However, a subjective view from the outside can be destructive for a family that simply did not pay attention to the legal requirements regarding raising children. It is better to take care of social norms in advance and comply with certain requirements established by Russian legislation.

How to avoid checks

Simply by following the social rules we are accustomed to, you can easily avoid a visit from the guardianship authorities:

do not leave the maternity hospital without an official discharge and obtaining a certificate for the child,
receive a birth certificate and other necessary documents on time,
if the child is older and participates in clubs where you can get bruises and contusions, for example, through wrestling, notify the class teacher about this,
if you go to paid clinics instead of a local pediatrician, leave a statement notifying this at your clinic,
do vaccinations on time, or also notify the pediatrician of your refusal in the form of a refusal, if there are reasons for this.

All these procedures must be carried out within the allotted time frame, then you don’t have to think that an inspection from the guardianship will come to you. Responsibility for the child rests entirely with the parents, and to the extent that they perform their duties efficiently, to that extent you can be confident that the inspection authorities will not interfere in the family.

What to do if guardianship comes

Without the grounds and required documents, the guardianship authorities not only do not have the right to take the child, but even to enter your home. Protection of the home from such attacks is guaranteed by Article 25 of the Constitution of the Russian Federation.

Guardianship authorities have the right to enter only by court decision or in cases established by law. Without a court decision, only cases of emergency call can be admissible, when the child is in danger (he screamed, called for help, the neighbors called the police). In accordance with the law on the police, police officers have the right to enter an apartment if they are suspected of committing a crime, but not the guardianship and trusteeship authorities.

At night (22.00 - 06.00) on an emergency call, guardianship authorities also cannot come alone, but only accompanied by police officers. Without the police, you can immediately refuse to let them in, citing the fact that the child has a routine and is currently sleeping.

If the police also unceremoniously try to get into the house, it is imperative to find out “on what grounds” and also notify the prosecutor. It is also necessary to keep in mind that if they try to conduct a search in the house, it can only be carried out if a criminal case has been initiated.

Parents can let guardianship officials in only by court order or voluntarily. Other orders and instructions have no legal force.

If you nevertheless decide to voluntarily allow employees of the guardianship and trusteeship authority into your home, you should not lose vigilance so as not to encounter a violation of your rights, or even fraud.

Check your documents! Ask for an ID and passport, check the data. Write down your details so you can know later who came to you. Documents can be photographed.

It is the parents who are responsible for the life and health of the child, the entire family, for the inviolability of the home and property, therefore you have every right to find out the identity of visitors. If in doubt, you can call the guardianship authorities and make sure who has been sent to you at the moment.

Additional rules when employees arrive:

You can invite a lawyer and friends who will be witnesses in advance. With them, arbitrariness is not allowed,
you need to put things in order at home, ensure the availability of food,
keep children in sight so that there are no attempts to remove them,
If desired, you can make video recording; such filming is not a violation of the law, unlike filming by guardians.

Care in your home

If you allowed guardianship officials to enter your home, then you must adhere to certain rules:

Do not allow anyone to communicate with you rudely and arrogantly. You are the masters of your home and do not intend to listen to insults and threats addressed to you.
Night time is not intended for communication with a child. At this time he is sleeping and there is no need to wake him up.
The rules of hygiene and etiquette are no exception for “guests”. Ask to take off your shoes and wash your hands.
If there is more than one visitor, do not allow them to disperse throughout your home. Ask everyone to follow you.
Do not allow closets to be opened or your belongings checked, since this is not a search, which only police officers have the right to do, and then only on the basis of a court decision.

In a situation where the guardianship authorities insist on checking the child’s health and try to take him to the hospital for examination, remember that:

any examination can only be carried out with the consent of the parent or guardian, i.e. they can’t just take him away;
the parent can be present during any type of examination or other interventions, as well as ride together in an ambulance;
you can always refuse to go to the hospital, because there may be more pressure on you there than at home. You can assure that you will bring a certificate from the local doctor about the examination tomorrow or the next weekday.

Residential inspection report

Carefully review all documents that are given to you to sign or filled out in your presence. You may not write anything, citing the fact that you trust only your lawyer, who cannot come now.

When visiting your apartment, the guardianship staff draws up the document “Act of Inspection of Residential Premises” in 2 copies. There should not be other names, since they may have a different form and specificity.

If you decide to sign, then empty lines, columns and pages must be crossed out as Z. On the back of the document, if it is empty, also crossed out and signed. You and the guardianship staff must sign the document. Don't forget to keep one copy for yourself.

If there is a disagreement with custody

If a dispute arises with a representative, it must be resolved in writing in the form of a statement

addressed to the head or head of the trusteeship department, indicating the officials, full name and subject of the dispute. It is better to prepare such an application in 2 copies or make a copy, one of which is submitted to the guardianship authority. It is optimal to send it by registered mail with notification and inventory, then you have proof in the form of a check from the postal service, and the notification that is returned to you will have the date and signature of the authorized person who accepted your letter.

In case of serious violations of your rights, rude attitude, attempts to remove the child, immediately report to the police by phone 02 that unknown persons are encroaching on your child and trying to take him from home. The police will promptly arrive and find out all the circumstances. Don't hesitate to protect your rights.

When meeting on the street, if you are waylaid, follow all the rules, do not talk to them and do not let the child go, refer to the fact that you will first talk to your lawyer.

Important! Explain clearly to the child that there are people who want to take him away from mom and dad, and therefore, under no circumstances should you run far away, leave kindergarten or school alone, talk to strangers, open the door, and other instructions.

And the most important. No one can just take your child away.

The Family Code, Article 77 regulates that guardianship and trusteeship authorities can take a child away from parents or guardians only if there is an actual threat to the life or health of the child. This requires an act of the executive authority of the republic or district (subject of the Russian Federation) or the head of an urban or rural settlement.

If this act does not exist, no one has the right to touch or take your child anywhere.

After checking

After passing the inspection by the authorities, you cannot relax any more, because it is possible that your family has been targeted and other attempts at intervention will follow.

Write a letter in 2 copies to the director of the school or other institution where the child is staying without you, stating that under no circumstances should the child be given to other citizens. Indicate permitted persons, for example, grandmother, etc. Permitted persons must pick up the child from school or kindergarten with identification documents, and the teacher or educator must be vigilant.

In return for your application, ask for a receipt, and on your copy of such an application, ask for the seal and signature of the manager.

If the actions of the employees were incompetent or threatening, be sure to send a letter to the head of the guardianship and trusteeship authority to take action. Your knowledge will be appreciated, and perhaps there will be no more attempts to interfere in your family life.

Increasingly, the media are reporting that in one region or another a child or several children have been removed from a family. We understood the current practice of removing children from families and prepared tips for parents - how to behave so that this does not affect the family and what to do if guardianship and trusteeship officials do come to the house.

Let us note that the impression of a sharp increase in cases of removal of children from families is deceptive. Children were not taken away more often - they began to talk about it more often. In the statistical form 103-RIK, in which government agencies reflect the number of newly identified orphans - and these are children removed from families - this number is not growing, but decreasing.

What is the order now?

The selection of children from a family can only be carried out in accordance with Article 77 of the Family Code of the Russian Federation. The law states that:

To select a child, there must be an immediate threat to the life or health of that child. The lack of oranges, a mess in the apartment, and the poverty of the family do not pose an immediate threat.
If a child is taken away under this article, the guardianship authorities are obliged to immediately notify the prosecutor and, within seven days, go to court with an act of deprivation or restriction of parental rights. This means that the guardianship authorities will have to prove to the court that there is an immediate threat to the life or health of the child.

The law does not provide for other options for taking children away from capable and sober parents.

What options are there in practice?

In practice, in addition to selection in accordance with Article 77 of the Family Code, children are taken under state supervision by internal affairs officers under the “Act on the Identification and Registration of Neglected or Unaccompanied Minors.”

What actions will be taken by employees of internal affairs bodies when identifying a neglected or unaccompanied minor is determined by Order of the Ministry of Health of the Russian Federation and the Ministry of Internal Affairs of the Russian Federation of August 20, 2003 N 414/633.

A homeless child is considered to be a child without a fixed place of residence who has lost all contact with his family. A neglected child is a child for whom supervision has been “lost,” that is, who has a family and a home, but at the time of identification is without parents or with parents in a state in which they cannot provide supervision, for example, in a state of alcohol or drug intoxication.

In the scandalous story about the confiscation of ten children at once from Muscovite Svetlana Del, the confiscation was formalized by just such an act, although, according to numerous testimonies, the Del children could not be called neglected. As representatives of the Moscow Department of Labor and Social Protection of the Population later commented, they interpret the term “neglect” as the improper performance of their duties by parents.

We asked Olga Romanova, an employee of the social protection authorities of St. Petersburg, to comment on this interpretation of the term “neglect”: “I have not heard that in our region children who are with their parents could be removed under the act of identifying a neglected child. If the parents are completely drunk or drugged, as a rule, both the situation in the apartment and the very fact of intoxication allows us to use Article 77 of the Family Code of the Russian Federation. But acts on the identification of neglected and street children are not our jurisdiction at all; they are drawn up by internal affairs officers. It is quite possible that in a situation where they arrived at the apartment in response to a call about screaming, for example, or generally for a reason unrelated to the children, but found children in the apartment with drunk parents, they draw up just such an act. I cannot comment on their actions.”

Another option in which children can end up in a shelter is a voluntarily signed application by the mother for the temporary placement of children in a government institution due to a difficult life situation.

There is evidence that mothers write such statements under pressure from the guardianship authorities, who claim that if they refuse, the child can be taken away “forever” (meaning the same Article 77), and the mother can at any time withdraw the application for temporary placement and take it back children. However, in those very cases that are widely publicized, parents say that it is not so easy to pick up a child voluntarily placed in an institution.

What to do?

If you do not want to attract the attention of guardianship officials to your family:

complete the documents. You have the right not to vaccinate your child, but you should go to the doctor and sign an informed refusal to vaccinate, which will be pasted into your card, and not hide from the clinic staff;
do not run away from the hospital or maternity hospital. You have the right to leave, but do it officially: inform the attending or duty doctor of your desire, sign a waiver of hospitalization and leave the hospital with an extract and recommendations;
When refusing the services of a clinic, be sure to keep the child’s personal medical record yourself, not content with the fact that it was opened in the private clinic where the baby is being seen. If necessary, you will immediately present the card to the guardianship authorities;
Some parents do not sign consent for their child to communicate with a psychologist in kindergarten or school, because they believe that this specialist may mistakenly identify something and transmit a signal to the guardianship authorities. In fact, most of the techniques that psychologists use in preschool and school institutions concern only cognitive functions, and not family relationships at all. Constant parental refusals will provoke the psychologist to report them to the social educator. If in doubt, it is wise to approach a psychologist, clarify with him what kind of work is planned with the child, and give consent to carry it out if it concerns cognitive tasks, relationships with classmates, adaptation to the school curriculum, etc.
do not delay obtaining a birth certificate, registering a child, etc. It will be better if this happens within the time limits established by law;
Lawyers from human rights organizations recommend that you always carry a passport with information about your children or a passport along with birth certificates. This will help to avoid problems on the street if the child, in a fit of disobedience, attracts undue attention to himself.

If guardianship officials come to your home:

keep calm;
Remember that you yourself make the decision whether to allow guardianship officers into your apartment. The right to inviolability of home is protected by Article 25 of the Constitution of the Russian Federation;
Police officers (not guardians!) may enter residential premises if there is sufficient information that a crime has been committed or is being committed there. Parents should first of all ask the question of what crime the internal affairs officers suspect has been committed and on what basis;
if you decide to let employees into the apartment, try to immediately call your neighbor, friend, or grandmother - drawing up acts by the guardianship authorities does not imply inviting witnesses, but it is in your interests to have witnesses to what is happening;
you have the right to film what is happening or record it on a voice recorder, warning uninvited guests about this;
do not allow employees to walk around the apartment without you. Assure them that you will show them everything you deem necessary, but only in your presence;
follow the preparation of the inspection report: ask to include in it what you consider necessary, state in writing your disagreement with the report if you consider the information included in it to be untrue;
the procedure for conducting a survey of the living conditions of minors is determined by order of the Ministry of Education and Science of the Russian Federation dated September 14, 2009 N 334. It makes sense to find it on the Internet and have it in printed form;
do not sign any documents other than the inspection report if you agree with how it is drawn up. There is no need to agree to “temporarily placing a child in a shelter” if guardianship officials try to persuade you to this option.