Dear LICADHO, ADHOC and other human rights organizations,
Is the Cambodian Children’s Fund contract below a
binding legal document?
Does the CCF contract breach the legal, human and
constitutional rights of the parents who sign it?
I draw your attention, in particular, to
“Article 3a
(i)
The parents/guardians agree to reimburse
and compensate any costs of expense including blood test and vaccination for
child, and financial and materials support to their family, although it was a
gift or loan, and other expenses while their children were residing in CCF if
they demand to bring their children back…”
I draw your attention also to the:
Law on Suppression of Human Trafficking and Sexual
Exploitation
Article 8:Definition of Unlawful Removal
The act of unlawful removal removal in this act shall
mean to:
1) Remove a person from his/her
current place of residence to a place under the actor’s or a third persons
control by means of force, threat, deception, abuse of power, or enticement, or
2) Without legal authority or any
other legal justification to do so to take a minor person under general custody
or curatoship or legal custody away from the legal custody of the parents, care
taker or guardian.
3)
Article 9: Unlawful removal, inter alia, of Minor
A person who unlawfully removes a minor or a person under
general custody or curatorship or legal custody shall be punished with
imprisonment for 2 to 5 years.
In
accordance with Cambodian law, does CCF’s refusal to return children to their
families without payment constitute “unlawful removal” as defined by Law on
Suppression of Human Trafficking and Sexual Exploitation?
The
Cambodian Children’s Fund refuses to allow parents to keep a copy of this
contract. Do you believe that this is an abrogation of the human rights of the
parents?
If CCF is
in breach of any of the human legal or constitutional rights of the Cambodian
parents who sign this contract (and children who have no choice but to abide by
its terms), will any human rights organization in Cambodia defend the rights of
exceptionally poor people who are unable
to pay thousands of dollars to CCF if they wish to have their children returned
to their care?
Kingdom of Cambodia
Nation Religion King
Cambodian Children’s Fund
DUTY OF CARE AGREEMENT
This Duty of Care Agreement (hereafter referred to
as the “Agreement “) is entered by
and between the following parties on this ____ day of_____, 20__:
_________________ [and] ________________, citizen/s of the Kingdom of Cambodia
having Cambodian identification card number/s ______________ and ______________, and residing at ___________
Village, __________ Commune, __________ District, __________Province, Kingdom
of Cambodia (hereinafter referred to as the “Parents”); and
Cambodia
Children’s Fund, a foreign non-governmental organization, duly registered and operating
in Cambodia with it registered address at # 870 Street Lum, Dom Nak
Thom, Khan Stueng Mean Chey, Phnom Penh, Cambodia, (the “CCF Community Centre”) represented by a designated CCF official
Cambodian citizen having Cambodian identification (hereafter referred to as the
“CCF”).
The Parents and the CCF may hereinafter be
individually referred to as a “Party” and collectively referred to as the “Parties”.
Recitals:
A. The Parents are the lawful
parents/guardian of _________, a child born on________ at________ Village,
______ Commune, _________ District, _______ Province, Cambodia (the “Child”) and the Parents have the
authority to act on behalf of the child including, but not limited to, the
power to sign this Agreement;
B. The CCF is a not-for-profit origination
operating for humanitarian purposes with the objective to provide impoverished
children with quality education, care and professional opportunities to better
enable them to acquire employment and contribute positively to their
communities (the “CCF’s Programs”);
C. The CCF is willing to give its
assistance to the Child by accepting them into the CCF’s programs and caring
for the child at the CCF Centre or such other location where the CCF operates
its programs. This agreement encompasses all CCF operations, including
CCF facilities, vocational training centers operated by CCF and any future
operations;
D. The Parents grant the duty of care of
the Child to the CCF during the period of the Child’s stay with the CCF in
accordance with the terms of this Agreement.
Now, therefore
the Parties have agreed on the terms and conditions of this Agreement as
follows:
Article 1 Purpose and Nature of the Duty of Care
1.1
The Parents/guardian agree to allow CCF to enter the Child into the CCF
Programs which will involve providing the basic needs of the child including
shelter, education, healthcare and food, as well as quality education and
vocational training.
1.2
The CCF agrees to care for the Child and operate the CCF Programs to the
best of its abilities and capabilities and in accordance with the CCF
Charter.
1.3
Both the CCF and the Parents/guardians acknowledge and agree that whilst
CCF will take the duty of care for this child seriously during the term of this
Agreement, at all times the Parents/guardians will remain the true legal
parents/guardians of the Child and shall retain all the legal responsibilities
applicable to legal parents/guardians under the law.
Article 2 Duration and Termination of the Duty
of Care
2.1
This Agreement shall be effective on the signature date of this
Agreement until the date on which the child is returned to the care of his/her
parents/guardians (the “Duty of Care
Period”) upon termination.
2.2
Each Party has the right to terminate this Agreement upon the giving of
reasonable notice to the other party, upon which termination the Child will be
returned to the Parents/guardians provided that the CCF is confident that the
child’s welfare is not at risk. If in the
circumstances of any risk, the CCF will inform the relevant authorities.
Article 3 Parents’ Promises and Acknowledgements
The Parents
promise and acknowledge as follows:
(a) The Parents/guardians agree and authorize
the CCF, acting reasonably and in the best interests of the Child in the CCF’s
opinion, to make medical and health decisions in relation to the Child,
including but not limited to:
(i)
An initial medical exam on the child’s arrival to identify any
pre-existing illness, injuries or signs of any form of abuse.
(ii)
providing vaccinations against disease;
(iii)
performing regular health checks on the Child which may involve testing
blood for the purposes of screening for contagious and blood-borne diseases
such as Hepatitis B and HIV; and
(iv)
providing care, emergency or otherwise, in the event of grave illness or
accidents effecting the child, if deemed by the CCF, acting reasonably, to be
vital to the health of the Child or potentially life threatening;
and parents/guardians agree
that the CCF shall not be liable in any way for any injury or illness resulting
from the above administration of medical and health care. In addition, the CCF is under no obligation
to treat medical conditions beyond common ailments and general health
treatments.
(b) The Parents/guardians acknowledge that
the CCF is allowed to use photographs of the child on its website and
advertisements.
(c) The Parents/guardians will encourage the
child to come to CCF to study regularly and punctually. Any unexplained, frequent absences can result
in expulsion from the CCF.
(d) The Parents/guardians acknowledge that
the CCF can expel the child if the child’s behavior goes against the policies
and the practice of the CCF or the well-being of other children.
(e) The Parents/guardians agree and permit
their children, who reside and/or study in CCF, to take part in the CCF
programs without any condition. In such case, there is no necessity for CCF to
get prior approval from the parents/guardians for their children to begin any
new CCF program.
(f) The Parents/guardians agree with the
CCF to administer its Programs and to make decisions with respect to the child’s
advantages in terms of program involvements and that the Parents/guardians will
not interfere in such decision making processes.
(g) The Parents/guardians acknowledge that
the CCF is a humanitarian not-for-profit organization and that it is reliant
upon funding from charitable sources.
Accordingly, they acknowledge that the CCF may not be able to provide
the CCF Programs in the event that such funding is not available and that CCF
is able to terminate this Agreement in accordance with Clause 2 and will have
no liability or obligation, financial, pastoral or otherwise, in the event of
such termination.
(h) The parents/guardian acknowledge that if
their child gets a mild or serious injury or death in or out of the CCF premise
incidentally by their carelessness or in a situation that beyond the control of
the CCF would not be the responsibility of the CCF and the CCF would be under
no obligations to compensate to the family of any damage, especially the child
who has a serious ailment, for instance, epilepsy or convulsion diseases and so
on
(I) The Parents/guardians agree to
reimburse and compensate any cost of expense including blood test and
vaccination for child, and financial and materials support to their family, although
it was a gift or loan, and other expenses while their children were residing in
CCF if they demand to bring their children back or the decision made by the
child him/herself and that such those decisions may affect the child’s future
and advantages without obvious justification from the parents/guardians.
Article 4 Obligations of the CCF
The CCF will do the following:
(a) Provide the child, during the Duty of
Care Period, with the basic needs of the child including shelter, healthcare
and food, as well as quality education and vocational training. The CCF shall be under no obligation to
provide any further assistance to the Child, although it may chose to do so
from time to time in its absolute discretion.
(b) Not claim or demand any costs whatsoever
from the Parents in relation to the provision of the matters outlined in
Article 4(a) or any other matter whatsoever related to the CCF Programs,
whether during or after the Duty of Care Period. But if the kid’s parents/guardians
violate their duty as stipulated in article 3, they must compensate CCF in
compliance with the article 3(I).
(c) Return the Child to the Parents, upon
completion of his or her education or training or on demand, provided that the
CCF is confident that the child’s welfare is not at risk. In such circumstances
the CCF will inform the relevant authorities.
(d) Endeavor to inform the Parents/guardians
of all matters relating to any serious medical or non-medical matters, however,
CCF reserves the right to act without prior consultation with the parents in
the event of grave illness or accidents effecting the child, if deemed by the
CCF, acting reasonably, to be vital to the health of the Child or potentially
life threatening and with the certification from medical doctor in charge.
Article 5 Amendment, Supplement and settling of
dispute
The Parties agree that all amendments, supplements
or interpretations of the Agreement shall be agreed by the Parties in writing.
Any dispute that may arise out of this Agreement
shall be settled by the Parties amicably. Any dispute which cannot be amicably settled
by the Parties shall be settled by binding arbitration in a location to be
decided by the mutual agreement of the Parties. The dispute shall be settled by
one arbitrator or more mutually agreeable by the Parties. The arbitrator’s
decision shall be final and binding on the Parties. The Parties agree that they
will not refer their dispute to any court in the Kingdom of Cambodia.
Article 6 Severability
If any of the provisions of this Security Agreement
shall be held invalid or unenforceable, this Security Agreement shall be
construed as if not containing those provisions and the rights and obligations
of the Parties shall be construed and enforced accordingly.
Article 7 Validity of the Agreement
This Agreement is made in English and in Khmer
languages in four originals (two in English and two in Khmer). Both languages
have equal effect. This Agreement is effective on the date of its signature by
the Parties.
This Agreement has been read aloud to the Parents/guardians.
The Parents have understood and agreed to the terms contained in this Agreement
and have acknowledged such understanding and agreement by signing and/or thumb
printing this Agreement below next to their respective names.
In witness whereof, the Parties execute this Agreement before the witnesses on the
date stated above
Parents/guardians Witnesses
__________________ __________________
Mr. ……………………. Name:
…………………
__________________ __________________
Mrs. …………………… Name:
…………………
CCF
____________________ ____________________
By its authorized representative Name: ……………………
Name: …………………………..
