Legal problems of adoptive families in China

Van Lu Postgraduate student, Peoples' Friendship University of Russia, Moscow 117198, Russia, Moscow region, Moscow, Miklukho-Maklaya str., 6 luwang670@mail.ru

Introduction

Family has always been a key value in Chinese culture. At the same time, speaking about Chinese society, it is impossible not to mention the strong influence of Confucian concepts, which still remain very relevant. This manifests itself in many aspects of interpersonal communication and in all areas of public relations, including family relations, as well as attitudes towards children. 

Research methodology

When writing the article, an integrated approach to the problems of the study was implemented, in particular, a list of issues related to the placement of children in foster families in China was considered. To identify the legal problems of foster families in China, special legal and general research methods were used. Among the general methods used are the method of systematic, quantitative and qualitative analysis, the formal logical method and the method of theoretical generalization. Among the special legal methods used is the formal legal method. This set of research methods made it possible to identify existing problems and propose ways to solve them.

Foster family in China as a legal category

The family, according to Confucian thought, is the first unit into which a person must be able to fit in correctly in order to bring even greater value to society and the country ^[7]. These trends can still be traced today.

At the same time, modern approaches developed in the People's Republic of China (hereinafter referred to as the PRC) with regard to the family are developing taking into account those trends that create new social relations. Currently, the tradition is preserved, however, undergoing drastic changes caused by the growing economic and social development, the approach of the legislator to the protection of children left without parental care.

Thus, one of the most common forms of placement of children left without parental care in the PRC is a foster family ^{[1, 3]}. The concept of foster families itself came from the West and spread to the PRC in the 1990s. The foster family system developed in China is simpler than in other countries. In China, the state assumes custody only of those children who do not have adult relatives to take custody of them.

According to the provisions of the Order of the Ministry of Civil Affairs of the People's Republic of China No. 54 dated September 24, 2014, which approved Measures for the management of foster families (hereinafter referred to as Measures for the Management of foster families), a foster family is a method of upbringing in which children under the care of the Ministry of Civil Administration are transferred to the appropriate families after passing the established procedure. According to Article 12 of the Measures for the management of foster families, after passing all the verification procedures, the child welfare institution must sign an agreement on a foster family with the indication of the main guardian, specifying the period of the foster family, the rights and obligations of both parties, the period of integration of the child in the foster family, responsibility for violation of the contract, the procedure for treating the child, etc. The foster family agreement comes into force on the date of signing by both parties.

Thus, from the perspective of Chinese legislation, a foster family is designed to provide short-term, temporary care for children who are not cared for by their parents.   

The problems of legal regulation of relations arising from the placement of children in foster families in China are considered in the scientific literature in a limited way. So, Liu M. and Zhu H. In their study on foster families in the context of China's social problems, they reveal the main purpose of such an institution as a foster family – providing care and financial support to meet the minimum requirement to maintain a basic standard of living for orphans so that they do not become homeless ^[13].

Wang V.-Ch. et al. in their study focus on collective custody in foster families and its consequences for children and Chinese society and conclude that it is necessary to adjust the legal requirements for foster families in terms of more careful selection of foster parents. In addition, the above-mentioned authors focus on the need to analyze statistical data and assess the economic efficiency of foster families, which, in their opinion, will allow us to form a more objective picture of the maximum number of children that each foster family could take care of without compromising the quality of care ^[15].  

Shang H., focusing on the problem of foster families in China, notes that the foster family is an institution necessary for Chinese society, while the Chinese have a positive attitude towards those who take in children in need. In turn, many families in rural areas could use the income from additional payments from the state (some foster care projects provide monthly salaries and other material payments) as support for foster parents ^[16].

It is important to note that the research available today is related to the definition of the essential characteristics of the institution of a foster family, its legal consolidation for Chinese society and the goals of such an institution, while they are not aimed at a detailed study of the problems of foster families.

There are various approaches to the content of the "foster family" category in specialized Chinese literature. Thus, foster families are defined as an alternative form of care, which is evaluated by professional organizations and meets the criteria defined at the state level for families in order to provide temporary care and supervision for children who cannot receive the necessary care from their native families ^[10].

Also, a foster family is understood as a method of upbringing in which children left without parental care are transferred to a family for upbringing as part of a legal procedure in order to raise and care for a child. At the same time, the foster family assumes only a change in the form of upbringing and does not lead to the transfer or change of rights and obligations between parents and children ^[4].

One cannot disagree with the approaches of Chinese scientists on the content of the "foster family" category, since they reveal the specifics of the form of placement of children under consideration, taking into account the purpose of such a form of placement as a foster family and the need to undergo mandatory procedures for meeting criteria defined by the state.

Taking into account the above approaches of Chinese legislation to the definition of the category "foster family", as well as the approaches of the scientific community to the content of the category under consideration, it can be stated that the definition of family foster care is, firstly, that it is an alternative model of family education, which is temporary. Secondly, this is a form of education that is intended exclusively for those minor children who are left without parental care and do not have relatives who want to take custody.

In addition, a key feature of Chinese foster families is that they are purposefully selected for children left without parental care in order to relieve excessive burden from government institutions that house children left without parental care. For this reason, the concept of a foster family is part of the Chinese government's child protection policy.

If we conduct a comparative analysis of the concept of "foster family", which is available in the norms of Chinese legislation, with the concept of "foster family" contained in the norms of Russian law, then we can identify some differences. Thus, according to the provisions of Article 152 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC), a foster family means custody or guardianship of a child or children who are carried out under a foster family agreement. Such an agreement is concluded between the guardianship and guardianship authority and the foster parents or foster parent for the period specified in such an agreement.

At the same time, the general rules on guardianship and guardianship, fixed in the IC of the Russian Federation, apply to legal relations that arise from the foster family agreement. Thus, in relation to the norms of Russian law, a foster family acts as a form of guardianship or guardianship (depending on the age of the child) for the purpose of raising children, their maintenance and education, as well as representing the interests of children. Foster parents in relation to an adopted child, according to paragraph 2 of Article 153 of the RF IC, have the rights and duties of a guardian (trustee).

Based on the above, it can be concluded that under Russian law, a foster family is a form of guardianship or guardianship, whereas under Chinese law, a foster family is an alternative (other than guardianship) form of placement of children left without parental care. At the same time, the concept of "guardian" in a Chinese foster family indicates the role of a foster parent based on the purpose of creating a foster family – educating and ensuring the rights and legitimate interests of foster children.

Problems of legal regulation of foster families and ways to solve them

At the same time, speaking about the specifics of Chinese legislation related to foster families, it should be noted that there are two main problems in this area of public relations.

The first problem concerns a limited list of reasons why children left without parental care end up in foster care. The second problem is caused by age and other restrictions that, at the level of Chinese legislation, are imposed on parents in foster families.

As for the first problem, according to Article 7 of the Measures for the Management of Foster families, only those children under the age of 18 who are under the care of the Department of Civil Affairs of the local people's government at the district level or higher, as well as abandoned infants and children whose biological parents can be identified for foster care cannot be found. Children with severe disabilities are not transferred to foster families. Such children receive professional medical treatment and rehabilitation training in child welfare organizations.

Based on the above rules, it can be concluded that children abandoned by their parents and children who are subjected to violence or abuse in the family cannot be transferred to foster families. In addition, children who have severe illnesses are not transferred to foster families ^[12]. At the same time, such children also need the support of the state. In addition, as noted in the specialized literature, there are families in China who want to raise children with serious illnesses in foster homes.  However, the placement of such children (art. 10 Measures for the management of foster families) is possible only in specially created communities with medical care, special education, rehabilitation and educational conditions ^[11]. Thus, these families are under the control of the state and this may be due to the fact that the state has much more financial opportunities to provide adequate treatment to seriously ill children. However, the specialized literature focuses on the fact that the problem of placing children with severe illnesses in Chinese families is connected with the historically formed attitude of Chinese society towards disabled children as persons unable to be productively and socially integrated into the modern Chinese family ^{[8, 10]}.

It is impossible to disagree with this opinion, because if in fact the state has more financial opportunities to provide adequate treatment to seriously ill children, then why is the practice of adopting children with disabilities by foreign citizens so developed and welcomed in the People's Republic of China? Why does the state not take full care of such children? The answer to this question lies in the approach of Chinese society to the traditional ideals of the Chinese family, where people with disabilities are considered inferior members of society. At the same time, the growing system of state-sponsored foster families in China, taking into account the specifics of placing children in foster families, largely serves to maintain the practice of international adoption of children with health restrictions, rather than challenging such practice by providing the opportunity to place them in full-fledged foster families without reference to life in specially created, closed communities ^[14].

In the Russian Federation, the specifics of the placement of children left without parental care and with severe illnesses differ from the Chinese one - children with severe illnesses are placed in a foster family, which allows them to subsequently adapt to society.

There are no official statistics on the number of children placed in foster care in Russian families who have been left without parental care and have serious illnesses. However, since 2016, there has been an increase in the number of adopted orphans with disabilities and children with disabilities assigned to foster families ^[2]. Such dynamics, in our opinion, is associated not only with a change in the attitude of Russian society towards people with health restrictions, but also with measures of social support from the state aimed at maintaining the lives of foster families taking custody or guardianship of children with serious illnesses. 

For example, in Moscow, the Decree of the Government of Moscow dated January 23, 2014 No. 8-PP "On conducting a pilot project in Moscow on property support for families who have adopted older children, disabled children, full- or half-siblings under foster care agreements" defines measures to support the appropriate foster families. At the beginning of 2024, more than 50 families have become participants in the project, who have adopted disabled children with severe forms of diseases (for example, Down syndrome, congenital bilateral sensorineural deafness). According to the adoptive parents themselves, children with health abnormalities adapt better to families and show significant progress in development ^[2].

The specifics of the support measures are to provide housing for families. So, during the period of the agreement on participation in the pilot project, there must always be at least five wards in the family, three of whom are over 10 years old and (or) children with disabilities and (or) children who are full- or half-siblings. 10 years after joining the project, the family receives an apartment from the city under a free use agreement at the rate of 10 sq. m. m of total area per person (taking into account both the adoptive parents themselves and their blood and foster children).

As for children who are subjected to violence and abuse in the family in the PRC, it is important to note that the state delegates the right to control violence or abuse in the family to the public level.

Thus, in the PRC, committees of residents and rural residents of the district monitor the performance of guardianship duties, including family education. These committees are composed of interested community members, typically retirees, and operate relatively independently of government agencies to perform various public policy implementation functions, such as providing awareness of benefit programs, enrollment assistance, posting educational materials, community mediation and monitoring community conditions, and family relationships.

The degree of their initiative and participation varies greatly depending on the region and even from individual committees in the same city. The provision of guardianship supervision opportunities to the relevant committees is a kind of invitation from the State to participate in the family affairs of its neighbors, allowing the committees to hinder, criticize or oppose official guardians who do not fulfill their duties or violate the rights and interests of minors.

However, if the committees encounter abuse or serious problems related to custody in their activities, they must report this to the police. The police investigate any violations of the law, but at the same time they can forcibly oblige families with problems to engage in family education.

However, there is no mechanism for the forced removal of children from disadvantaged families and families where children are subjected to abuse in the legislation of the People's Republic of China. It is important to note here that Chinese law allows the courts to terminate the right to custody, but Chinese courts do not take such measures because of the reluctance to sever family ties (which is due to the traditional approach of Chinese society to the family) or because of the lack of suitable alternative places to accommodate children ^[9].

At the moment, the issue of creating a multi-level system of interventions is being worked out at the legislative level, including protective orders that can change the mechanisms of temporary and emergency placement of children and the abolition of custody rights. However, it is difficult to say when the relevant acts will be adopted.

Based on the above, it turns out that, on the one hand, public supervision has been established over the treatment of children, and on the other hand, the issues of providing a child with better conditions than the conditions in which he found himself are not properly resolved even with the actual presence of such a form of placement of children as a foster family.

As for the age of parents in foster care and the requirements that apply to foster families, according to Article 8 of Measures for the management of foster families, the age of parents in foster care is determined from 30 to 65 years. At the same time, parents must have a minimum education of junior high school. The issues of parental age qualification are very controversial in terms of setting the lower limit of the permissible age. For example, persons under the age of 30 do not have the right to apply for the opportunity to take a child into a foster family, even if such persons meet all other criteria for foster families and can quite consciously approach upbringing and at the same time have vitality and a state of health suitable for upbringing.

The upper acceptable age limit for parents in foster care is 65 years old, too, raises many questions. So, if we assume that both parents in a foster family will be at the age of 65, then, let's assume that a situation may arise when ten-year-old children find themselves in the care of 75-year-olds, who themselves may already need appropriate care due to age. In this case, there are issues of restrictions related to the age of parents in foster families, which are seen as very relevant and require permission at the state level. In particular, it is necessary to remove restrictions on the minimum age limit for parents in foster families and establish clearer responsibilities for parents in foster families who are in old age. The removal of restrictions on the minimum age limit for parents will allow younger families, not burdened with age-related health problems, to take care of children left without parental care.

The next aspect related to foster care, which I would like to draw attention to, concerns the number of children who can be placed in foster care.

Thus, according to Article 9 of Measures for the management of foster families, the number of foster children in each foster family should not exceed 2, while there should be no children under 6 years old in the foster family. The above approach of the Chinese legislator, on the one hand, seems reasonable, since it minimizes the burden on parents in foster families from the point of view of financial support for children, as well as from the position that fewer children can receive more parental attention and care.

On the other hand, this approach limits the possibility of placing more foster children in those families where there is financial opportunity to raise two or more children and at the same time, due attention and care can be provided for all children. In addition, there are questions about the mental state of three children who had common parents, but were left without care and cannot be transferred to one foster family. 

Considering the above, it seems necessary to adjust the norms of Chinese legislation regarding the restrictions imposed on the number of foster children in foster families. Thus, an approach seems more rational, in which, at the time of assessing foster families, the stability of the family's financial situation and the assessment of the possibilities of raising more than two children in a foster family will be more carefully studied as part of the qualification procedure. This approach will not only allow more children to be raised in foster families, but also solve the problem of breaking family ties between children who had the same parents.

In general, taking into account the general trends of Chinese state policy aimed at ensuring children's rights, the existing rules for placing children in foster families should be adjusted and adapted to the specifics of public relations and regulatory legal acts adopted after 2020 ^{[3, 4, 5, 6]} and aimed at ensuring children's rights. Thus, in relation to foster families, it is necessary to focus on the principle of the best interests of the child, and not on the establishment of legislative boundaries that prevent the possibility of placing a child in a foster family.

In particular, if children are subjected to systematic abuse or violence in their families, they should have the right to be raised in foster care. Similarly, those children who have severe developmental disabilities should have the opportunity to receive parental, rather than state care and care. The removal of age restrictions imposed on foster parents and restrictions related to the number of children who can be placed in one foster family will also allow a comprehensive approach to the interests of children's rights, rather than making them "hostages" of the state policy of restrictions.

Conclusion

Summing up, we note that such a form of placement of children left without parental care, as a foster family, exists in Chinese legislation relatively recently, but is of great importance for protecting the rights and interests of children. At the same time, the existing legislative rules ensuring the placement of children left without parental care are not perfect. The article focuses on the right-wing problems of placement in foster families of children left without parental care. These problems are related to the restrictions imposed on children placed in foster care, as well as the restrictions that are set for families (the age limit of parents, the number of children who can be raised in one foster family). An analysis of existing problems has shown that there is a need to modernize the legislative norms related to placement in foster families in order to ensure the best and comprehensive interests of children, rather than preserving the approach according to which the family becomes part of a bureaucratic and traditional framework. Within the framework of the article, appropriate recommendations were proposed to solve the identified problems.

Firstly, it is necessary at the legislative level to provide opportunities for the placement of children who have been subjected to abuse and children with serious illnesses in foster families. This approach will allow children to be more socially adapted.

Secondly, it is necessary to adjust the norms of Chinese legislation regarding the restrictions imposed on the number of foster children in foster families. Thus, an approach seems more rational, in which, at the time of assessing foster families, the stability of the family's financial situation and the assessment of the possibilities of raising more than two children in a foster family will be more carefully studied as part of the qualification procedure. This approach will not only allow more children to be raised in foster families, but also solve the problem of breaking family ties between children who had the same parents.

Thirdly, it is necessary to adjust the norms related to the age of foster parents. The removal of restrictions on the minimum age limit for parents will allow younger families, not burdened with age-related health problems, to take care of children left without parental care.