THE TRUTH ABOUT ADOPTION IN CAMBODIA, KINGDOM OF WONDER
|Written by Keo Sokea|
|Monday, 30 March 2015 19:25|
The law on Inter-country Adoption was promulgated in 2009, however this law is not enforceable for both internal and external factors. It is unbelievable that a law crafted by multi-national experts with many consultations, approved, passed, endorsed, promulgated and constitutionally examined by all brands of the state powers which include the government, the National Assembly, the Senate and the King has been arbitrarily blocked, interpreted, manipulated, twisted and interfered. This situation happened to my lovely pity country with cute name as Cambodia: Kingdom of Wonder.
When a law was promulgated, no any country in the world would hinder its implementation and enforcement until: (1) administrative system functions very well, (2) justice system is clean and functions well, (3) welfare system well functions and equipped with plenty resources, especially financial resource (4) no corruption in all systems, (4) relevant actors are trained very well and equipped with perfect knowledge and skills, (5) other countries and agencies are pleased, among other things. If that is the case, Cambodia will take 100 years to implement a law like that.
Working for and with children or making any decision either directly or indirectly concerning children life/future required a combination of good hand, good heart, good head, responsibility and ethics. Children have their rights on top of human rights. Child right is universal and likewise Cambodian children have the same rights as other children in different part of the world. Their rights are inalienable: all the time, everywhere, and cannot be given away whether they are Cambodian, from poor country, orphans, being relinquished, being fostered, being adopted, having HVI/AIDs or in other special needs situation, status/situation of their country as alleged to be corrupt/having mal-functioning welfare system, etc. If you think a child is too small, less important, no power to resist and not deserve a better life with a family that opens the arm and heart to embrace them, it is what you think, and it is not the way children think and deserve.
I used to be a child having father being killed by communism regime and having very poor mother with three sisters. Although my family lived with bitter life in the past, we fought desperately, and I am lucky that we could survive and none of us are abandoned, relinquished and left behind. Not all Cambodian children can escape from difficult situations like many of us. From the childhood until now, my government(s) never uses reasonable or maximum of resources on children or putting children first for many reasons. To the best of my knowledge, State budget is not allocated specifically for children, and if it is allocated we are not sure whether the budget is properly used and reached children. Families with extremely difficult circumstances here are not assisted to be able to raise and keep children in the family, although Cambodia is the State Party to many child related treaties. We have no well-functioning system to seek support and to get compensation when our state did wrong things on us. Projects and activities supported by development partners, NGOs and government have very little impacts on children, and the adult both international and local are the main direct beneficiaries.
Improving and strengthening children welfare and adoption system are just paper printed by adults who work and live in a nice and/or luxury environment. Many international experts and non-full fledged professionals injected their feelings and theories extracted from the books to confuse Cambodia child welfare system. Because of little money received from their organizations, these people played with Cambodia child welfare system as if they played with lives of white rats in their chemical labs.
OVERVIEW ABOUT ADOPTION
Let me share some information about adoption in Cambodia. Here are the kind of adoptions: local adoption, inter-country adoption, simple adoption, full adoption, step-parent adoption and relative adoption. Full adoption is a legal process resulting in the acquisition by the adopted child of the same status, rights and obligations as that of a natural child of the adopters and the termination of the relationship between the child and his/her natural parents and their blood relatives. Inter-country adoption is a full adoption that has the effect of creating a permanent parent-child relationship by providing the adopted child with the same status and the same rights and obligations as the natural child of the adopters, and of terminating the relationship between the child and his or her natural parents.
There are several laws and regulations governing adoptions. Although some of them are recently passed, could not be enforced, being null and void and/or patricianly applicable it is worth to have some reflections. Those law and regulations include but not limited to: Civil Code, Law on Enforcement of Civil Code, Law on Inter-country Adoption (ICA), Law on Marriage and Family, Sub-decree on Adoption of Infant/Child Orphans Abroad, Prakas on Procedures to Implement the Policy on Alternative Care for Children, and other regulations issued by MoSVY.
OLD LAW GOVERNING ADOPTION
The Law on Marriage and Family 1989 was implemented from 1989 until December 2011. Provisions relative to adoption were annulled when the Civil Code came into force. This law applied to all categories of adoptions include local, inter-country, and international adoptions, either simple or full adoption. Adoption contract/agreement must be in writing and certified by the Commune or Sangkat chief. Under this law, parties of the adoption agreement may choose to go to the court or not. The Commune or Sangkat chief had authority to certify the adoption. Since judgment or court order is optional, some people petitioned to the court upon demand by competent authorities of other countries only. There is no requirement that an application for an adoption be lodged to the Central Authority for Inter-Country Adoption unless the child is the ward of the state and inter-country adoption is to be applied.
OLD IMPLEMENTING REGULATION GOVERNING ADOPTION
An implementing regulation called Sub-decree 29 of 04 March 2001 on the Adoption of Infant/Child Orphans Abroad was approved based upon the above law. This Sub-decree was the highest regulation of the country to be issued by Prime Minister and it has next hierarchy after a law passed by National Assembly. This Sub-decree aimed at addressing inter-country and international adoptions that the Law on Marriage and Family did not specifically set out and set out detailed procedures governing inter-country and international adoptions. It was annulled when the Law on ICA came into force.
Before the promulgation of ICA law, there were old adoption applications that the government received from adoption agencies from several countries in Europe. To clear these cases, procedural wavers were allowed, that is, Sub-decree that were annulled and void was invoked because the procedures set out by Sub-decree and new law are different in many aspects, and for some cases prospective adoptive parent(s), especially single applicants would be disqualified if new law was applied. Single parent applied for adoption and the applications officially received, examined and processed before new law came into effect. To address this situation, with high level request from receiving country the government of Cambodia approved to clear old cases. Strictly and legally speaking new law had to be applied, and as consequences if new law applied, those adoptive parents and adopted children would be waiting with no hope for 6 years until this time. Then, both adoptive parents and adopted children became not suitable, not eligible and not qualified for adoptions of age requirements and such other substantial and procedural issues.
LAW ON INTER-COUNTRY ADOPTION
The Law on ICA was promulgated and in force on 03 December 2009. This law was pronounced as urgent, thus it became into force the next day. Therefore, legality of any actions aiming at delaying or postponing sine die the enforcement of this law is legally questionable.
The Law was originally scheduled by the Ministry of Social Affairs, Veterans and Youth Rehabilitation(MoSVY) to be in operation on 01 April 2011, but due to pressures, fear and inferences it was then postponed 3 times between April 2012 - January 2014. From Cambodia side, the government did not explicitly imposed moratorium on its own and it is witnessed by many conferences conducted by MoSVY to update progresses and informed that the country is ready with enforcement of ICA law. The law could not be enforced because of lack of cooperation from receiving countries for the reasons of lack of strong adoption system, feelings of child trafficking, prejudice and past experiences. Another factor that ICA law could not be enforced is that some agencies wish to introduce temporary care system (foster care system) copied from abroad and obstruct permanent care system (ICA Law enforcement) to satisfy their wants.
Although there is no figure as to whether any child was trafficked through inter-country adoption, upon request and/or interferences of one UN agency, Hague Permanent Bureau and other Embassies of some receiving countries, especially USA, this law could not get political will for its enforcement. In March 2015 MoSVY issued a notification on the situation of adoption in Cambodia and through this letter called for bilateral cooperation with receiving countries to determine number of adoption agencies and authorize adoption agencies to apply for authorization to operate in inter-country adoption in the country. This notification states for the first time in contradiction to article 58 of the law on ICA that Cambodia postponed ICA since 2011.
My country as a very poor country has been trying a lot to satisfy receiving countries, development partners and foreign experts since the law was in the draft form. Almost all concepts of Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption and comments from them were incorporated in the law, although Cambodia clearly understands that enforcement would require a lot efforts and resources. To some extends, the comments from the foreign experts who are having very negative minds about Cambodia administrative and justice systems were also included. Finally, the ICA law was born in 2009, and it is expected that receiving countries and development partners would help to enforce the law, but never expect that the partners obstruct the enforcement of this law. This is a good lesson learnt that Cambodia must stand firmly and must not bow down before uncooperative foreigners.
Although not perfect or not as expected by receiving countries and selected development partners, while many things still need to be improved the reality is that many things have done so far: development of implementing rules such as regulation on fees/expenses, accreditation of adoption agencies, training of adoption agencies, forms and capacity building of those who are working at the Central Authority and ICA Administration as well as judges. However, these efforts never seen, heard, recognized and/or appreciated as positive steps toward improvement of the child welfare or adoption system. This law enable adoptions by foreign nationals residing in their home country to adopt a Cambodian child through procedures in both their home country and in Cambodia. This law requires two approvals: (1) administrative approval by MoSVY, and (2) Court Order. ICA law does not allow foreign citizens to apply an ICA while they are residing in Cambodia. If they wish to do so they need to reside in their country and apply through channels and follow procedures set out by ICA law. Foreign citizens may choose to follow other procedures to raise and/or adopt a child such as local adoption, foster care, adoption of alien relative, adoption of immediate relative. For foreigners of Cambodian original, they even have more options in connection with legal procedures and substantial rights as they have Cambodian nationality.
Enforcement of the ICA law is stuck as there has been no adoption programs with receiving countries and receiving countries refuse to enter into cooperation agreement with Cambodia. The only possible lawful procedures to get the rights to raise and take care Cambodian child is Civil Code after its entry into force. Indisputably, relevant Civil Code provisions and CRC best interests principle can fill the gaps of ICA law in the situation that petitioners are residing in Cambodia if they meet the requirements of both Cambodia law and their countries. However, for some organizations and individuals it purports that this concept is not welcomed. They want to ignore the truth and the law, and trying to twist ICA law and Civil Code by designing a new document called “ Explanatory Note “ to confuse justice system. Explanatory note on any subject matter or a law is not a law. It is just a document. For example, according to EU “ explanatory notes are not legally binding and only contain practical and informal guidance about how EU law should be applied on the basis of the views of the Commission’s Directorate General for Taxation and Customs Union “. Therefore, legally speaking no one can rely on explanatory notes to interpret law and regulations. The only way to fix a law is to have a law on the amendment or create a new law to replace the old one.
WHY ICA LAW IS NOT ENFORCED ?
According to my experiences, very often the ICA law have been used:
One may have negative mind and feelings about Cambodia, but it would be not appropriate to pass on own bad feelings through works to various agencies/ organizations/persons to gain hidden interests.
From Cambodia side, many factors influenced decision making starting from legal framework, policy development, system strengthening, etc in exchange of peanuts left behind salary of senior persons. Likewise the requests for an adopted child, foster child and a child living under guardianship to travel abroad with adoptive parent(s), foster parent(s) and guardian for minors will not be easily approved. Officers or decision makers are frightened by media, social media (facebook especially) influenced by white-collar officers, who gained knowledge about ICA in Cambodia from books, internet and media. Many foreigners came to Cambodia, either as lawyers, advisers, social workers, or similar jobs, with information/knowledge gained from reading the books, internet and other informal discussion (interview or informal meeting) to initiate project concerning adoption in Cambodia. Some experts came with empty knowledge about adoption law in Cambodia. What they kbow is just copy and paste from project documents or research materials of other countries and adjust budget to justify budget and their salary. What they are good at is English writing, talking at the workshop and convincing those who already have negative perceptions about Cambodia. They can write to seek fund and write something bad to create the needs for budget support. Some behave like they are king of Cambodian children who came to assist Cambodian children. But the truth is Millions of US$ were not spent on Cambodian prospective adopted children. Those money was spent on " Adults" which mostly are not even Cambodians. Those money never been checked if it was spent on and for the interests of adopted children or adoption system as the name of the project dedicated to.
Many data and facts have been injected to make Cambodia to be seen as black either willingly or unwillingly. For example, some source said that only 20% of children in orphanages (NGOs or state-run orphanages?) are genuine orphans, and it is a fact that children are sold trafficked via orphanages. The question arises is Who sold and trafficked other 80% of the children ? Who are the accomplice ? Does this mean government sold and trafficked its own children ? Who will be responsible before these 80% ? Who will pay compensation to these children and their families if they are victims ? Why did not arrest and put in prisons all directors and staff of orphanages and relevant persons for these criminal acts ?
Cambodia has been criticized as the country that has many laws, but has poor law enforcement or not enforcing the law. If this is true, receiving countries and development partners should not contribute to this practice (not to enforce law), but help the country to enforce the law.
Separation of power is stated in Cambodia Constitution and Constitution of many countries in the world as well as International Human Rights Instruments. Development partners and OHCHR support the principles of separation of power. Under the principle of separation of power, the Executive must not interfer, instruct, order the Judiciary to do or not to do its job. Based on recent events, it is not sure if the Executive is encouraged by development partners with peanuts to control the Judiciary. Exlainatory Note of December 8, 2015 was issued by Ministry of Justice (MoJ) and a workshop concerning adoption was conducted in late 2016. This explainatory note and the workshop are seen by most of judges and prosecutors as " order " from the executive(Ministry of Justice) that they must follow this order although they have different opinions. They are obliged to make decision according to this policy but not decide based on the law. There are many questions arised: who has power to interpretate the law ? Does the roles of the Consitutional Council were transferred to MoJ ? Can Ministry of Justice stretch the meaning of the law ? What is the legality of the speech of senior government officers during the workshop ? How far a legal provision can be interpreted (e.g. is citizenship means permanent resident ! how about other rights and obligations)? Does the interpretation is made to fit the wants that premeditated ? When legal provision is not clear, should it be interpreted to reduce the rights of citizens ? Do the judge has to judge based on policy(order or speech delivered during workshop) or based on the law ?..... This kind of practices will create culture of interference into the judiciary. When the judge make a decision based on the law, what the executive has to do is to enforce the decision of the judiciary. What happen, if the executive (MoJ, Ministry of Interior, etc) who is legally expected to enforce the decision of the judiciary challenges the decision of the judiciary (e.g. asking head of the executive brand as to whether the decision of the court is lawful or not...) before it decides to enforce. The end of Separation of Power in Cambodia will come soon. I could not imagine that even one embassy of the country that I respect as country of freedom, rule of law and separation of power purports to support the breach of the principle of separation of power as it posted the above legal interpretation on its website.
The Civil Code 2007 is the principle law governing family law issues including parent-child relationship, adoption and guardianship. This Code sets out general rules governing family law and it supplements the law on ICA in case this latter special law does not set out a specific issue. Civil Code adopts the Principle of Equality of Legal Capacity whereby all natural persons are entitled to have rights and assume obligations in their name. All natural persons include both Cambodians and foreigners. Cambodia law puts a limitation on capacity of foreign nationals to acquire rights, only when such limitation is explicitly set out by legal provisions. Foreign nationals are not entitled to acquire or hold certain rights if so provided by law or international treaties or conventions. Only Land Ownership that foreigners cannot own. Constitution provides that “ Only Khmer legal entities and citizens of Khmer nationality shall have the right to own land “ . Other rights other than Land Ownership, rights in relation to family such as marriage, divorce, child custody, adoption, foster care, child protection.., Cambodia law does not put limitation on capacity of foreign nationals to acquire rights. Therefore, legal provisions relative to domestic adoption can also be applied to foreigners. There is opinion that Cambodia should not allowed children to be raised outside the country to be adopted via domestic adoption process. The feelings behind this opinion may be good. However, the law is not a feeling and a feeling should not be allowed to be converted into a law. Many countries such as those of Germany, USA, Australia and Switzerland recognize local adoptions from other countries including Cambodia as far as laws are strictly followed. Cambodia should not allow personal feelings of any person to become law of Cambodia.
Parent-child relationships are Constitutional Rights to be protected and guaranteed by the Constitution. Parents have obligations to take care of and educate their children to become good citizens and children have duties to take good care of their elderly mother and father according to Khmer traditions. If a child is lawfully placed under any form of care or adopted under any form of adoption such as local adoption, ICA adoption, foster care and guardianship, the rights to enjoy family life such as travel, settle abroad and return to the country, etc must be guaranteed. In this regard, if a lawfully alternative care decision is made by competent authority of Cambodia, the child must be automatically entitled to travel and live with the adoptive/foster parents...
In October 2011, MoSVY issued a Prakas on Procedures to Implement the Policy on Alternative Care for Children (Prakas) in need of special care and protection and at-risk children to make sure that those children fully develop in a family environment of happiness, love and understanding. All placements of children in alternative care setting is temporary alternative, except placement with a family permanently. After exhausting efforts for family reunification, temporary alternative care placements shall be implemented in the following order of preference: (a) Placement with relatives, (b) Placement with community-based family foster care, (c)Placement with community-based care, such as Group Care and Pagoda Care (in the same community and the child can visit their family regularly), and (d) Placement in residential care. Exhausting efforts should not arbitrary interpreted. It is a very time consuming process, very costly and the process may bring very bad experiences for children who were tested or played under this scheme.
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Child care and child placement must be decided based on best interest of the child. This principle required to look into best option among options available, and must be decided based on most realistic reasons. In case where a child has HIV/AIDs, a child with serious illness, disabled child that cannot cured and/or treated in the country, we should not wait until all order of placements are exhausted and make a decision or choose last order. If all order of placements are used, and those children died and/or their health became worse or problems could not be fixed, the exhausting efforts are in fact the worst interest of the child. We come across with a case that two Cambodian families wanted to adopt an abandoned child. One family knowingly decided not to adopt this skinny child until the child became bigger and healthier in order to save low-cost milk, and another family wanted to adopt her as well, but did not take the child because a fortune teller told the latter family that the child has better fortune than them. Third family are foreigners of well-educated background, have very good job, good reputation, physically and mentally fit to be good parents, financially capable of providing care, education, inheritance, approved by their country as being qualified to adopt a child. Which of family would serve best interest of the child ? Professionals, whether lawyer, social worker or medical doctor, should understand the concept of best interest of the child well beforemaking conclusion.Best interest of the child is not best interest of adults and their organizations.
With regard to procedures for permanent care by non-kin foster care in case children are placed in non-kin foster care placements for at least 6 months, permanent guardianship with the family that cared for them must be considered. If the condition of the child and family are appropriate, the family is encouraged and must be assisted with the legal process to enter into a permanent legal guardianship or to adopt the child. According to the text of the Prakas, this regulation can be applied to both Cambodian and foreigner.
DUAL CITIZENSHIP & LEGAL OPTIONS
Constitution guarantees the rights to protection of identity, nationality among other rights and freedoms. Khmer citizens shall not be deprived of their nationality, exiled or arrested and deported to any foreign country unless there is a mutual agreement on extradition. Khmer citizens residing abroad enjoy the protection of the State.Those citizens who are living in foreign countries, shall be protected by the State through all diplomatic means and shall not lose their nationality automatically. They will not lose their Khmer nationality/ citizenship because of their marriage with foreigners. Therefore, foreigners of Cambodian originals or possessing dual citizenship are entitled to all rights, freedoms and such other entitlements that other Cambodians have. They may lawfully choose what they believe to be most advantageous to them. Those include substantial provisions/rights and procedural rights. For example, if country of their habitual resident has no inter-country adoption program with Cambodia, s/he may use his/her rights guaranteed by the Constitution and Law on Nationality to realize her/his rights to have a family if it is not against the law of his/her habitual resident.In any part of the world, options granted by the law are very usual way opened for everyone who legally qualified for them. For example, a foreigner may get Cambodian citizenship through one of the following ways: (1) marriage with a Cambodian, (2) Investment up to 1,250,000,000 riels, (3)donation in cash to the national budget of from 1,000,000,000 riels or more, and so on. The above options are guaranteed by “ theConstitutions and Laws “, thus Cambodian can choose one of the options, and such options cannot be refused arbitrarily.
HARMONIZATION OF LAW
If Cambodia law and law of a foreigner allow local/domestic adoption or foster care or any other form of care of a Cambodian child by their citizens, harmonization of law and regulations is needed. This concept has been facilitated by rules of private international laws and national laws. In this regard, if official approvals are made by competent authorities, there must be presumption that those decisions are lawfully rendered unless there are contrary evidence. If any doubt, inquiries should be made by professionals, but not close the ears and eyes and make decisions based on illusion and fears or hearsays. The text of the Constitution of Cambodia, Laws, regulations, adoption documents, judgement, official certificate(s) identity documents, medical certificate, psychological report, income statement,.. are available to check and verify. They should not be presumed as no validity to consider and rush to make a decision that one wants to hear or one already planted ideas in own mind. Decision must be made on case by case basis rather than see one black spot through black lens make conclusion that the whole Cambodia is covered by black sky and black mists.
As a professional who gone through policy development, law and regulation drafting and defending, field experiences, trainer and public speaker who actively involved in family law practices, especially alternative care, I wrote this article to shed the light on adoption problems in Cambodia, and my ultimate goal is Best Interest of Children who need a family to provide them with love, understanding, warmth, and commit to change destitute faces of the children into smiling and hopeful faces.
Thank to all receiving countries, development partners, agencies, experts and those individuals who have genuine intentions to protect children. Our children can be loved and cared through strong supports for law enforcement rather than obstruction on law enforcement and breaking the principle of separation of power. Poor law enforcement and other issues such as corruption, child trafficking must be addressed while enforcing the law.
Phnom Penh Capital, December 18, 2016
By attorney KEO Sokea (KEO Sophea)
Director of SK & P Cambodia Law Firm
Some embassies refused visa for an adopted child or fostered child or a child living under guardianship to visit or travel to their countries based on the feelings and presumptions that all supporting documents are processed through corruption and that corruption is the main concerns whereas they granted visas for the rich and corrupt personsto enter their territory without looking into corruption issue.
|Last Updated ( Sunday, 18 December 2016 16:59 )|