Responsibility for disclosing the secret of adoption: intentional and necessary

Adoption is a procedure for placing minor children into a new family. The state considers the care of adoptive parents for a child to be the optimal form of upbringing (Article 124 of the Family Code of the Russian Federation). Legislation guarantees the protection of the interests of a minor, enshrining the secrecy of adoption.

Article 124 of the Family Code of the Russian Federation “Children for whom adoption is permitted”

Adoption

This form is the best way to accommodate single children. This institution of law is regulated by International Law and is clearly prescribed by the Family Code.

It is allowed to adopt children under 18 years of age whose father and mother have died or have been deprived of parental rights by a court order.

When choosing a future family, they take into account the interests of the minor, his origin, religion, and native language. Relatives of the minor have priority. It is forbidden to separate siblings.

Citizens of the Russian Federation permanently residing in the country and abroad can adopt a child. Foreign citizens, except those who have American citizenship, or those living in the United States, become the parents of a small Russian citizen if it is impossible to find a suitable family within their native state. Children are put up for adoption 12 months from the date of receipt of data about them in the federal database.

It is prohibited for the following persons to adopt children:

• recognized by a court as incompetent or limited in legal capacity, and their spouses;
• deprived of parental rights;
• in respect of which there is a court ruling on the termination of adoption or guardianship;
• those convicted of grave and especially grave crimes;
• sentenced by a court to punishment for crimes of low and medium gravity, in the absence of an expunged criminal record. If a citizen has served his sentence in full, and the time required by law has expired since the offense, he can become an adoptive parent, provided he has his own home, the necessary means of subsistence, and the absence of diseases and bad habits.
• suffering from diseases that exclude the possibility of accepting a child into the family. The list of diseases is determined by the Federal Law of the Russian Federation and includes: tuberculosis, HIV infection, oncology, disability of non-working groups I and II, alcoholism, drug addiction, schizophrenia. If the listed conditions are detected, the child’s blood relatives, stepmother and stepfather are denied access.
• without registration and permanent residence, with the exception of representatives of the nomadic peoples of the Far North;
• not working anywhere, without the opportunity to provide the child with a living wage established by regulations;
• who are same-sex spouses;
• who have not completed the pedagogical training established by the Government.

Representatives of different sexes who have not registered their marriage cannot jointly adopt an adopted child.

If you want to raise a child alone, you must take into account the age difference, which is at least 16 years.

The adoption process takes place through civil proceedings, in the presence of persons who have expressed a desire to raise a minor, a representative of the guardianship and trusteeship authority, and a prosecutor. When a minor reaches 14 years of age, he will be asked to remain in the courtroom. To consider the case, a statement from the interested party is required. There is no state fee when submitting this paper.

The hearing takes place behind closed doors, and all persons present sign a non-disclosure document. This measure is based on ensuring the secrecy of the adoption of a child.

If a minor father and mother have not been deprived of parental rights by a court order, their written consent is required to take him into their family. Persons who gave birth to a child before the age of 18 give consent together with their legal representatives.

When submitting an application by one spouse, the voluntary consent of the second is required.

A mother who abandoned her baby in the hospital may later change her decision.

Responsibility for Disclosure

Absolutely all people who participated in the process of placing a child in a foster family are given a notice that must be signed, confirming their agreement to maintain secrecy. This is also stated in the resolution when making a decision on the adoption of a child in court. According to Article 155 of the Criminal Code, persons who violate the law are criminally liable for disclosing the secret of adoption.

People who disseminate classified information may be subject to punishment in the form of:

1. A fine in the amount of wages for 6 months, or the amount of 80 thousand rubles;
2. Correctional labor, the validity period can reach 1 year;
3. Arrest for up to 120 days, while depriving the right to carry out certain activities.

Important! If the adoptive parent dies, even if the adopted person contacts the appropriate authorities, their employees do not have the right to provide information about the birth.

Both ordinary people and officials are liable for the dissemination of secrets. It refers to:

• To everyone I know;
• Employees of medical institutions;
• Close and distant relatives;
• The judge hearing the case;
• Employees of the authorities registering the baby;
• Representatives of the local branch of the guardianship and trusteeship authorities.

This year, the spread of secrets is being criminalized, although there is a lot of debate about the repeal of this law. An example is European countries, where they do not hide their true origin from the child. This is motivated by the fact that minors have the right to know about their biological parents. It is also possible to abolish criminal liability for disclosing the main secret of adoptive parents.

But most people believe that by making the process open, the number of people who want to take a stepchild into their family will decrease.

The Mystery of Adoption

Legal acts protect the formed family. The secrecy of adoption is the protected right of new parents to hide the lack of blood relationship with the adopted child.

The procedure for adoption is determined by law: the case is considered in a closed meeting, and those participating in it sign a document on non-disclosure of data. This measure is a legal protection aimed at protecting privacy. The hearing results in an adoption order.

Civil registry offices carry out state registration of adoption. If desired, those who have adopted a foster child are indicated by his official parents. A new birth certificate is issued and information about the child is changed.

Only adoptive parents have the right to disclose secrets. The remaining participants in the meeting bear criminal liability provided for by law for the disclosure of information known to them.

Advantages and disadvantages

The main task of the secrecy of adoption is to protect the interests of the child. Its undoubted advantages are that:

• the baby grows up in a loving family, considering it his own, he is given a new name and surname.
• biological parents do not have the opportunity to interfere in upbringing or see the child;
• the weak psyche of a minor cannot be traumatized by the fact that his father and mother abandoned him and the reasons that made him an orphan;
• Having reached the age of majority, a son or daughter can inherit from their adoptive parents.

Disadvantages of secret adoption:

• fear of disclosure of information by an ill-wisher who can traumatize the psyche of a minor;
• New parents are responsible for the care and upbringing of the adopted child.

Disclosure of secrets

Article 19 of the Family Code regulates the issue of disclosing the secret of adoption. All people participating in the process are deprived of the right to provide information about the adopted child and the fact of his origin.

The Constitution of the Russian Federation ensures compliance with all rights and obligations, in particular, the inviolability of life. Moreover, all relevant information relates to family secrets. Disclosure of a secret implies responsibility for this action.

In order to protect and ensure personal integrity, adoptive parents have the right to change not only the first and last name of the minor, but also the place of birth and date of birth. Also, the adoptive parents will be recorded as the baby's real parents.

If a little person, under 3 months old, was taken into the family, then the mother can apply for payment for postnatal leave, while neither guardianship officials nor judicial representatives should divulge the secret. In this case, both officials and individuals are responsible.

Disclosure of a secret about one's origin can lead to mental disorders and increase the time of adaptation in a newly acquired family.

Adoptive parents can spread the secret of a child's adoption at their request, or if the minor is already 10 years old at the time of adoption into the family. Article 124 of the Family Code regulates the protection of the rights and interests of the baby.

People can violate the principles of non-disclosure for reasons caused by both life circumstances and malicious intent. Before disseminating classified information, you need to understand that there may be criminal or legal liability for actions taken. Therefore, before making a rash decision to disclose a secret, it is better to review information about the consequences, according to legal acts.

Who should keep the adoption secret?

The following are obligated not to disclose information:

1. all participants in the court session, which include: judge, prosecutor, representative of the guardianship and trusteeship authority;
2. civil registry office employees who issued a new birth certificate;
3. teachers, medical personnel, preschool workers privy to the secret;
4. relatives, neighbors, acquaintances, family friends who became aware of the fact of the adoption of a minor.

Required Disclosure

The secret of adoption cannot be kept if the child is over 10 years old and remembers his real parents.

Adoptive parents have the right to disclose the secret of adoption to preschool teachers, medical personnel, and teachers, if this is necessary for pedagogical, medical and other purposes. The above-mentioned employees should not pass on information to other persons without the consent of the adoptive parents.

Intentional disclosure

Persons who have information may, out of malice and selfish motives, reveal the secret. For their actions they are subject to liability provided for by the legal acts of the Russian Federation.

Qualification and composition of the act related to the disclosure of the secret of adoption in the Russian Federation

In accordance with Article 23 of the Constitution of the Russian Federation, everyone has the right to privacy, personal and family secrets, protection of their honor and good name. Adoption is an important institution aimed at strengthening the family and protecting the interests of the child.

Violation of the secrecy of adoption can destroy a family and cause significant harm to the personality of the adopted citizen, since it entails serious moral experiences that are most dangerous for the child, causing mental trauma and jeopardizing the health and normal development of the minor.

When qualifying the disclosure of the secret of adoption, the offense should be distinguished from such a crime as violation of privacy (Article 137 of the Criminal Code of the Russian Federation). Of course, the disclosure of such a secret is a certain interference in private life, however, the first element of the crime is special, and therefore actions to disclose the secret of adoption should be qualified only under Article 155 of the Criminal Code of the Russian Federation.

1. The objective side of the crime is a message about the fact of adoption to any citizen, made without the consent of the adoptive parents orally or in writing.
2. The object of the crime is the interests of the family and the child.
3. The subjective side of the crime is characterized by direct intent. A citizen who violates a secret realizes that he is going against the will of the adoptive parents, and still wants to commit illegal actions.
4. Crime is characterized by selfish, base motives. This will be especially taken into account if the crime was committed by an ordinary citizen, not an official.
5. The subject may be a sane person who has reached the age of 16 and is obliged to keep the fact of adoption as an official or professional secret.

The elements of the crime are formal - that is, the crime is considered completed from the moment of commission of those specified in Article 155 of the Criminal Code of the Russian Federation .

Please note that this unlawful act may be associated with other articles:

1. Article 163 of the Criminal Code of the Russian Federation , if the threat of disclosing the secret of adoption is associated with extortion. For example, for non-disclosure, the attacker demands to transfer the property of the adoptive parents or the rights to this property.
2. Articles 285, 286 of the Criminal Code of the Russian Federation , if an official disclosed a secret, and exceeded his authority.

Please note that disclosure of information can be made in any way (orally, in writing, using any means of communication), the method will not affect the penalties.

Punishment and responsibility

Intentional disclosure of the secret of adoption is punishable by criminal penalties. If it is proven that the person who disclosed the information wanted to cause suffering to the child, then, according to Article 155 of the Criminal Code of the Russian Federation, the following preventive measures are applied:

• imprisonment for up to 4 years, with a prohibition to engage in their professional duties, hold certain positions for 3 years or more (this punishment is applied to employees of institutions who have become guardians of the secret of adoption in the performance of their official functions);
• correctional labor for up to 1 year;
• monetary penalty of up to 80,000 rubles, or in the amount of six months’ salary at the defendant’s main place of work.

If during the proceedings it is established that the guilty person wanted to blackmail the adoptive parents, then the criminal law imposes punishments based on the totality of the acts.

How to prove a crime has been committed

Another secret

Secret information that also affects the personal life of a citizen and is protected by law includes medical confidentiality. The concept of “violation of medical confidentiality” includes disclosure of a diagnosis (especially significant for a person when they find out his HIV-positive status), dissemination of information about mental health, the results of diagnostics, tests, and prescribed treatment. You can read about responsibility for disclosing medical confidentiality in the article https://lexconsult.online/6340-ponyatie-vrachebnoi-tainy-nakazanie-za-ee-narushenie.

The elements of the crime provided for in Article 155 are formal, that is, immediately after the disclosure of information to any person, the crime is already considered completed, for this there is no need to wait for certain consequences to occur.

Proving the fact of disclosure of secrets in practice is quite a difficult task. The situation is especially difficult with proof of the vile intentions of the offender.

First of all, in order for the disclosure of the secret of adoption to be punished by law, it is necessary to find the person who disseminated the information. The involvement of a specific person in a crime can be proven using the testimony of witnesses (the adopted person or strangers to whom the information was communicated) or documentary evidence:

• Recording a conversation;
• Letter;
• SMS message;
• Post on social networks, etc.

Current problems of adoption secrecy

Since 2016, the Government has constantly raised the issue of the need to abolish the secrecy of adoption and criminal liability for its disclosure. It is based on the experience of European countries and the provisions of international conventions, which state that the child must know his real parents and decide for himself whether to communicate with them.

There are situations when, wanting to maintain the secret of the adoption of a child, a family changes their place of residence, work and social circle, which becomes a difficult ordeal. However, despite the measures taken and the article of the criminal law, there is a fear that a son or daughter may find out that mom and dad are not his blood relatives. This pressure is very difficult for many married couples to bear. In some countries, it is possible to choose a foster family for your child.

In June 2012, the President of the Russian Federation signed a decree on the introduction of an open adoption system, which means that from now on the court hearing will be open, the adopted person will be able to meet the persons who gave birth to him. The Presidential Decree was not approved by the Legislative Assembly; less than 40% of deputies supported its ratification. Currently, in the Russian Federation, family law norms that preserve the secrecy of the adoption of a child remain in force.

Adopting a child is a noble, responsible and labor-intensive task, approved by the legislation of all countries. For the harmonious development of personality, a child must grow up surrounded by a loving family. The secrecy of the adoption of a child and its provision contributes to the implementation of this right, reflected in the UN Convention, protects minors and promotes a happy and carefree childhood.

Arbitrage practice

Today, cases of disclosure of adoption secrecy are rare in Russia. Here is one example of such a case.

Since childhood, the girl Anya has been characterized by increased activity and excitability. At school, the baby was recommended to visit a psychologist, to which her parents agreed. After one of the sessions, the girl returned home in shock. From a psychologist she learned that her parents were not her own.

Later, the school specialist admitted that she really revealed the secret of adoption to Anya, since this, in her opinion, should have helped in treatment. In fact, this information harmed the girl; she had to undergo a long rehabilitation, since at that time she was not yet ready for such information.

The court imposed a fine on the perpetrator of the crime and prohibited her from working in her specialty in schools for 3 years. In addition, Anya’s parents were able to demand small moral compensation from the psychologist in court.

On issues of liability for disclosing the secret of adoption, a lawyer will advise you in the comments to the article

Legislative regulation

1. Convention of the UN General Assembly on the Rights of the Child of November 20, 1989;
2. European Convention on the Adoption of Children of November 27, 2008;
3. Constitution of the Russian Federation of December 12, 1993;
4. Family Code of the Russian Federation of December 29, 1995 223-FZ;
5. Criminal Code of the Russian Federation of June 13, 1996 n 63-FZ;
6. Decree of the President of the Russian Federation of June 1, 2012 No. 761 “On the National Strategy of Action in the Interests of Children for 2012-2017”;
7. Resolution of the Plenum of the Supreme Court of the Russian Federation on 2004.2006 No. 8 (as amended on December 17, 2013) “On the application of legislation by courts when considering cases of adoption of children.”

Composition of a criminal offense

The composition of a criminal act includes the subjective and objective side, the subject and object of the crime.

• Subject

The subject can be special or general. The first include persons whose professional duties involve maintaining secrecy (a judge, the director of a shelter, an employee of the registry office), and the second include any persons who disclosed information for selfish or malicious purposes: relatives, neighbors, teachers and other citizens, more or less closely communicating with family.

• Subjective side

It represents the dissemination of information against the will of the adoptive parent. A crime is such only if there is intent. For example, one of the relatives may blackmail the couple by telling the child who his true mother and father are, demanding money for silence. In this case, if the secret is revealed, he is the culprit and deserves criminal punishment. There is evidence of the criminal’s interest, selfish intent (to get money and ruin family relationships) and the act itself.

If the parents gave the go-ahead for the disclosure of the secret, or the child was already aware that he was taken into care, the fact of disclosure is not regarded as a crime. It doesn’t matter whether the parents themselves told the child or someone else with their consent, there is no corpus delicti.

Dissemination of information against the will of the adoptive parent

• An object

The object of the crime is social relations that were violated by someone’s illegal actions. Human rights and freedoms are considered a common object. The generic object is the rights of the individual, the specific object is the rights of minors. And the immediate object is the right of children to grow up and be educated in a full-fledged family and in a psychologically comfortable environment. Dissemination of information can be a direct threat to the child’s peace of mind and a way to disrupt family relationships.

• Objective side

The objective side is actions aimed at revealing the secret of adoption to at least one person, including the child himself. The crime differs in its formal composition - that is, it is considered committed from the moment the information was disclosed.