Belarus: Conditions under which child-protection authorities are authorized to take a child away from his/her single mother, including whether a parent's homosexual orientation constitutes a condition that justifies the removal of a child from his/her single mother; documents required to prove that the conditions/circumstances for the removal of the child actually exist

According to an anonymous international source that was cited in a 2001 report by the Danish Immigration Service, societal attitudes towards homosexuality in Belarus are "conservative," with homosexuals "generally being socially stigmatised" (Denmark 1 Mar. 2001).

The Danish fact-finding report on Belarus also indicates that homosexuality was decriminalized in 1994 although "homosexual activity with young men aged under 18 remains a punishable offence" (ibid.). The report cites the chairman of "Lambda," an organization in Belarus that advocates homosexual rights, as stating that

Homosexuality is frowned upon in Belarusian society ... and [is] condemned by the church. ...

... Parents usually take a very unfavourable attitude towards homosexuality in their children and there have been cases of parents having to move ... on account of harassment from neighbours. If there is a homosexual known to be living in a block of flats, any problems in the building are [blamed on] the homosexual. If gays and lesbians show their faces in ordinary night clubs, etc., ... gay men risk being attacked and lesbian women raped. Homosexuality continues to be regarded as an illness and until 1994 homosexuals were accordingly treated for a medical condition (ibid.).

For general information on the conditions under which child-protection authorities are authorized to separate a child from his or her parent(s), please refer to the excerpted attachment on the separation of children from their parents and family reunification, taken from the second periodic report of the Belarusian government submitted in May 1999 to the United Nations Committee on the Rights of the Child. More recent information could not be found among the sources consulted by the Research Directorate within time constraints.

In correspondence with the Research Directorate, the International Secretary of "Lambda" (BLL), indicated that while the Belarusian child-protection authorities are authorized to take a child away from his or her single mother if she is a lesbian, this is not an automatic process (29 Oct. 2003). The process begins following the filing of a complaint by neighbours and/or close relatives of the mother to the Council for Child Protection (BLL 29 Oct. 2003). Usually a complaint made by a neighbour and/or close relative is enough to initiate an investigation, but in some cases a mental and physical assessment of the mother can also be undertaken (ibid.). However, the determination of the type of evidence that is sufficient to establish her sexual orientation falls fully under the competency of the courts (ibid.).

The governing law in these cases is the Family Code, which provides the following justification for taking away a child from his or her parent: where the parents are unable to educate the child to be a "real citizen" of the Republic of Belarus (ibid.). According to the International Secretary, the official position of the Belarusian authorities is that homosexuality is immoral, and, therefore, one who is a homosexual cannot educate the child to be a "real citizen" because, according to the courts, they are not a "real citizen" themselves (ibid.). BLL has on various occasions made attempts to prevent the authorities from removing children from their homosexual parents, but these have always failed (ibid.). The International Secretary added that the "main problem" is not the law itself, but the mentality of the judges, who still possess a "Soviet" sense of morality (ibid.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

Reference

Belarusian League for Sexual Equality "Lambda" (BLL), Minsk, Belarus. 29 October 2003. Correspondence with the International Secretary.

Denmark. 1 March 2001. The Danish Immigration Service. "Fact-Finding Mission to Belarus, 30/1-7/2 2001." [Accessed 22 Oct. 2003]

Additional Sources Consulted

The Belarusian Helsinki Committee in Minsk, Belarus, did not respond to a letter requesting information within time constraints.

Dialog/WNC

The Embassy of the Republic of Belarus, in Ottawa, could not respond to a letter requesting information within time constraints without consulting its government in Belarus.

The International Lesbian and Gay Association (ILGA) in Brussels, Belgium, did not respond to a letter requesting information within time constraints.

IRB Databases

Internet sites, including:

Amnesty International

BBC

Belarus Today

Belarusian Helsinki Committee

Country Reports on Human Rights Practices for 2002

European Country of Origin Information Network

Human Rights Watch

International Helsinki Federation for Human Rights

International Lesbian and Gay Association (ILGA)

Office of the United Nations High Commissioner for Human Rights

Office of the United Nations High Commissioner for Refugees

Radio Free Europe/Radio Liberty

United Nations, Division for the Advancement of Women

Search engine:

Google

Electronic Attachment

United Nations (UN). 26 September 2001. Committee on the Rights of the Child. "Consideration of Reports Submitted by States Parties Under Article 44 of the Convention. Periodic Reports of States Parties Due in 1997: Belarus." (CRC/C/65/Add.15) [Accessed 20 Oct. 2003]

C. Separation from parents

104. Paragraph 4 of article 32 of the Constitution of Belarus states that children may only be separated from their families against the will of parents and those in loco parentis on the basis of a court decision, in the event that such parents or those in loco parentis have failed in their duties. Basic laws and regulations governing the separation of children from their parents are laid down in the Belarusian Marriage and Family Code. Thus, article 66 of the Code stipulates that if, after the dissolution of their marriage or for any other reason, parents live separately, decisions as to the place of residence of any minor children shall be subject to their consent. Should a dispute arise, the matter will be resolved by a court on the basis of the interests of the child and taking into consideration the child's own wishes. In accordance with article 67, parents living apart from their children have the right to maintain contact with them and are obliged to take part in their upbringing. No obstacles shall be placed in their way in this regard.

105. The tutelage and guardianship authorities may, for a specified period, deprive a parent living apart from his or her child of the right to have contact with the child, if such contact is causing harm to the child. In cases where parents fail to comply with the decision of the tutelage and guardianship authorities, these latter, and also either one of the parents, shall be entitled to apply to the courts for resolution of the dispute. In the event of willful refusal to comply with the decision of the court, the parent living apart from the child shall be entitled, in the child's best interests, to apply to the court for custody of the child.

106. In accordance with decision No. 10 of 16 December 1994 of the Plenum of the Supreme Court of the Republic of Belarus, regarding the manner in which the courts are to apply the legislation in settling disputes relating to the upbringing of children, parents may be deprived of their parental rights on grounds provided for by article 70 of the Marriage and Family Code, in the event of their culpable conduct.

107. Article 70 of the Marriage and Family Code stipulates that one or both parents may be deprived of their parental rights if it is established that they have failed to comply with their duties relating to the upbringing of their children, have refused, without compelling reason, to collect a child from a maternity hospital or ward or from other establishments for the medical care and treatment or the education and upbringing of children, are abusing their parental rights, are behaving cruelly towards their children, are exerting a harmful influence on their children through their own immoral behaviour or are chronic alcoholics or drug addicts.

108. Parents shall be considered to be failing in their duties when they neglect the moral upbringing of their children, their physical development, education, and preparation for socially useful work. Abuse of parental rights is to be understood as the use of these rights to the detriment of the child's own interests, such as, for example, by preventing their education, inciting them to beg or involving them in activities of an immoral or antisocial nature. Cruel treatment of children may take the form of physical or mental violence, the use of unacceptable child-raising methods, or treatment that degrades their human dignity. The chronic alcoholism or drug addiction of parents must be confirmed by a corresponding medical finding. Treatment for alcoholism or drug addiction is not in itself sufficient reason for an application for the deprivation of parental rights to be refused.

109. If a parent is found guilty of the commission of a crime against minor children, involving such acts as incitement to criminal activity, drunkenness, lewd conduct, etc., this may provide grounds for the privation of parental rights. If the parent is convicted for the commission of any other crimes or if no culpable conduct vis-à-vis his or her children is established, there shall be no privation of his or her parental rights.

110. Persons may only be deprived of their parental rights in court proceedings, held with the participation of the procurator. Proceedings shall be initiated on the application of State or voluntary organizations, or of either of the parents or the guardian (tutor) of the child and also on the application of the procurator (art. 71 of the Marriage and Family Code). If, when considering proceedings for the deprivation of parental rights, the court should detect the indicia of a crime in the actions of one or of both parents, it shall inform the procurator accordingly or shall institute criminal proceedings.

111. In the event of both parents being deprived or their parental rights, the child shall be placed in care (art. 47 of the Marriage and Family Code). Provision is also made for the possibility that a court orders the removal of a child and the child's placement in care, regardless of any deprivation of parental rights, if it is dangerous for the child to be left with the persons concerned (art. 77 of the Marriage and Family Code).

112. In exceptional cases, where there is a direct threat to the life or health of a child, the tutelage and guardianship authorities shall be entitled to take a decision ordering the immediate removal of the child from parents or from other persons by whom the child is effectively being raised. In such cases, the tutelage and guardianship authorities shall be obliged to inform the procurator without delay and, within a period of seven days of the decision, to apply to the court for the deprivation of the parental rights or one or both parents or for the removal of the child. If the grounds for the removal of the child cease to apply, the court may, on an application from the parents and acting in the child's own interests, order the child to be returned to the parents. In this case, the wishes of minor children over the age of 10 shall be taken into account.

113. Article 78 of the Marriage and Family Code stipulates that the tutelage and guardianship authorities must be in attendance when disputes relating to the upbringing of children are being considered by a court. Court orders on the transfer of custody or removal of children from parents or other persons are carried out by court officers, in the obligatory presence of the tutelage and guardianship authorities. The procuratorial authorities oversee compliance with these regulations.

114. Since the deprivation of parental rights is an extreme measure, a court shall be entitled, in exceptional cases where the culpable conduct of the parent has been proved, taking into account the nature of such conduct, the parent's character and other specific circumstances, to refuse an application for the deprivation of parental rights, and instead to warn the respondent about the need to change his or her approach to the upbringing of the child or children concerned. At the same time, responsibility for monitoring the proper performance by such persons of their parental duties rests with the tutelage and guardianship authorities.

115. Persons whose failure to perform their parental duties is due to mental illness, mental deficiency or any other chronic illness or to other circumstances beyond their control, may not be deprived of their parental rights.

D. Family reunification

116. In accordance with article 76 of the Marriage and Family Code, parental rights shall be restored if this is in the children's best interests and if the children are not adopted. Restoration of parental rights may only be effected by judicial procedure on application by the person deprived of parental rights or by the procurator. When considering applications for the restoration of parental rights, courts must establish whether or not the lifestyle of the parents has changed and whether they are able to give the child a proper upbringing.

117. In accordance with decision No. 10 of 16 December 1994 of the Plenum of the Supreme Court of the Republic of Belarus regarding the manner in which courts are to apply the legislation in settling disputes relating to the upbringing of children, the rights of parents to raise their own child shall prevail over those of other persons and they are therefore entitled to demand the return of their children from any person who is not holding such children on the basis of the law or pursuant to a court order (art. 69 of the Marriage and Family Code). An application by parents for the return of their children may only be refused if a court determines that such return will not be in the best interests of the child. When considering applications by parents for the handover to them of children by persons holding those children on the basis of the law or pursuant to a court order (guardians, tutors, children's homes), courts shall be required to determine whether the circumstances which gave grounds for the placement of the children with the person or children's home concerned have changed since the time of the original dispute and whether returning the children to their parents will be in their best interests.

118. Applications for the restoration of parental rights may be filed against the other parent, or against a guardian (tutor) or a children's home, depending on in whose care the child has been placed. These applications shall be considered by courts in the presence of the tutelage and guardianship authorities.