Belarus, along with other UN member states, has ratified the Convention on the Rights of the Child, which was adopted by the General Assembly in 1989. The provisions of the Convention are aimed at ensuring the protection of children’s rights, the inadmissibility of violation of rights, the establishment of guarantees for each child, as well as the definition of the rights and obligations of parents.
To regulate the provisions of the Convention at the national level in Belarus in 1993 the Law “On the Rights of the Child” was adopted. The law enshrined the fundamental rights of children, including the right to live in a family (the so-called right to parents), the right to education, the right to work, etc. In addition, the law defines the responsibility of parents to ensure that all the necessary conditions are created for the child for his full development, upbringing and preparation for an independent life in society.
At the same time, our legal practice shows that parents, especially those who are in the process of divorce, often have disagreements about the child’s place of residence, the order of communication between each parent and the child, as well as the possibility of the child traveling abroad. In this article, we will understand the legal nuances associated with organizing the departure of minor children abroad, including in cases where one of the parents does not consent to this.
Parental consent for the child to travel abroad
Until now, many believe that a minor can only go abroad if accompanied by both parents, and in all other cases, the consent of the father or mother is required for the child to leave. In fact, this is not the case.
The basis of the legal regulation of this issue is formed by the norms of the Law of the Republic of Belarus “On the procedure for exit from the Republic of Belarus and entry into the Republic of Belarus of citizens of the Republic of Belarus”. According to the law, a child can leave Belarus either accompanied by both parents (legal representatives), or accompanied by one of the parents (legal representative), but upon presentation of documents confirming the relationship. Parents’ consent to a child’s departure abroad is only necessary if a minor leaves Belarus without their accompaniment. It should be noted that the consent for the child to travel abroad unaccompanied by the parents is a notarial document, that is, the notary must personally certify the consent of both legal representatives of the minor. The form of the document has been developed and is widely used by notaries of Belarus, a sample of consent for a child to travel abroad can be obtained at any notary office or notary office.
For example, if a child goes on an excursion with the class, then without parental consent, border officials will not give permission to leave the country. If a minor goes on vacation with his mother with his mother, then, as a general rule, the father’s consent is not needed.
Thus, if you plan to go on vacation with a child, then it is not necessary to obtain permission to leave the second parent.
Documents for a child to travel abroad
As we noted earlier, as a general rule, if a child travels abroad accompanied by one of the parents, then the following documents must be presented to the border control authorities:
minor’s passport;
parent’s passport;
documents confirming the right to enter the country of destination (valid visas);
a child’s birth certificate or other document confirming relationship.
The border service officers are not entitled to require any power of attorney for the child’s departure or other papers.
At the same time, the countries of the Schengen zone, as well as a number of other states, establish their own special rules for crossing their borders, which differ from those enshrined in the legislation of the Republic of Belarus.
Obtaining parental permission for the child to travel abroad
Despite the fact that Belarus allows a child to travel abroad without the consent of one of the parents, when considering documents for obtaining a visa to the EU, the consulate staff of a country entering the Schengen area will require permission from a legal representative (guardian, guardian) for the child to cross the border. If such a document is not provided, the minor will not receive a visa.
Thus, the issue of the procedure for the departure of a minor abroad, if the legislation of the country of destination provides for rules that differ from the legislation of Belarus, must be resolved even before applying for a visa. In this case, you can act in several ways: either obtain the consent of one of the parents from a notary, or determine the procedure for the child to travel abroad through the court.
Notarized consent to leave the child
As we noted earlier, consent for a child to travel abroad can be obtained from a notary. For this, the parent, whose consent is verified, must personally come to the notary with a passport. A notary has a sample of consent for the child to leave, but we always recommend that our clients request a consent form at the embassy or consulate of the country in which they plan to enter. The notary fee for the preparation and certification of consent will be 50% of the base value, which as of January 2022 is 16 rubles, or about 8 US dollars.
Note that a parent living separately can certify the child’s consent to travel abroad with a foreign notary.
Changing the procedure for a child to travel abroad through the courts
If the consent of the second parent to leave the child is not possible, for example, the parent ignores all requests for permission, then it can be obtained through the court. In this case, it is necessary to initiate a trial to change the procedure for the child’s departure abroad.
Note that the trial is proceeding in the course of action, i.e., to put it simply, from a procedural point of view, there is no difference between considering a claim to change the order of a child’s departure abroad and a case on collecting a debt by receipt: procedural terms of proceedings, standards of proof, the procedural requirements will be almost identical.
This means that the court will need several months to consider a civil case. It is necessary to take this information into account in advance in order to have a sufficient margin of time to receive a positive court decision, which by the time of the trip should come into legal force. Otherwise, the trip may not take place.
In particular, we have been working with one of our clients for several years. Taking into account the negative attitude of her ex-spouse to the travels of their common daughter abroad (even for tourist purposes), a few months before the expected date of the trip, we are forced to initiate legal proceedings, the main purpose of which is to obtain permission to travel abroad without his consent. … The court decision, legalized in accordance with international requirements, essentially replaces the notarized consent of the parent for the child to travel abroad. In particular, we have repeatedly submitted similar decisions of the Belarusian courts to the embassies of the EU member states when obtaining visas.
Documents for obtaining permission for a child to travel abroad through the court
To start a trial, it is necessary to prepare a package of documents specified by law:
– a statement of claim that meets the requirements of the procedural law;
– evidence supporting the claim;
– evidence confirming the fact of payment of the state duty for the consideration of the statement of claim.
Please note that during the trial, the court may require additional evidence, as well as demand documents from government agencies and organizations on its own initiative.
Ban on the child’s travel abroad
In our practice, there have been cases when one of the parents had reasonable doubts about the conscientiousness of his / her former spouse. In particular, we are often asked to provide legal assistance in the form of a ban on the departure of a minor outside the Republic of Belarus. At the same time, it should be remembered that the approaches differ in the Republic of Belarus and in the Russian Federation.
In Russia, you can issue a ban on a child’s departure abroad by submitting an application to the migration department of the territorial bodies of the Ministry of Internal Affairs. In Belarus, issues of restricting a child from traveling abroad can be resolved only on the basis of a court order.
In particular, when considering a statement of claim to change the procedure for a minor to travel abroad, the court assesses the real threat of violation of the rights of the second parent, as well as the interests of the child. If the court comes to the conclusion that it is in the interests of the child to ban a minor from traveling abroad, it will issue a court decision to satisfy the plaintiff’s claims, and will also send information about the change in the procedure for traveling abroad to the border control authorities.
Our lawyers have extensive experience in representing the interests of our clients on issues related to the departure of children from the country. Our lawyers are ready to provide you with the following legal assistance in matters of children leaving the country:
– oral and written advice on the departure of a child from outside the Republic of Belarus;
– representation and protection of interests in courts on issues of a child’s departure from outside the Republic of Belarus.
If you have questions related to the departure of a child from Belarus, and you need help or advice from a lawyer, please contact our lawyers by e-mail: info@familylawyer.by or by phone: +375293570355.
