Specifics of the prosecutor’s participation in proceedings for considering applications for the return of a child (on the exercise of access rights to him) on the basis of the 1980 Convention on the Civil Aspects of International Abduction of Children

Abstract

This article examines the problem of the exercise of parental rights (guardianship rights) in relation to a minor. At present, there are quite numerous disputes between parents, other persons entitled to rights in relation to minors, about the place of residence of the child and about with whom he will live. Controversial issues are resolved both out of court proceedings and in court. The Code of Civil Procedure of the Russian Federation establishes the powers of the prosecutor to apply to the court in cases of this category and to intervene to give an opinion.The purpose of the article is to present the results of a study of the peculiarities of the participation of a prosecutor in court proceedings in cases of the return of a child (on the exercise of access rights in relation to him). The tasks were to generalize judicial practice, identify violations in the consideration of cases by the courts, establish the specifics of the participation of the prosecutor in the proceedings in cases of this category. The author analyzes the issues of the prosecutors competence at the pre-trial stage of resolving disputes and the measures that he has the right to initiate in defense of the violated rights of the parent (another person who applied to the prosecutors office) in the administrative and judicial order. In connection with the consolidation in the Code of Civil Procedure of the Russian Federation, the right of the prosecutor to initiate proceedings in a court of general jurisdiction in cases of the considered category, attention is paid to the issues of determining jurisdiction and the subject of proof, the time frame for going to court, the time period for the proceedings, the time period for challenging the court decision. The emphasis is also placed on the implementation of the right of the prosecutor to intervene in the case to give an opinion. On the basis of the provisions of the 1980 Hague Convention, the results of practice, the generalization of the reasons for the cancellation of the decisions of the courts, the conclusions on the most significant aspects that need to be paid attention are substantiated. It is concluded that the judicial practice of considering cases of this category is being formed and is currently not free from violations of the requirements of the law. Attention is drawn to the conclusions of the Supreme Court of the Russian Federation based on the materials of the generalization of practice.