This article is written by Srijita Adak, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).
India has the largest number of children in the world with around 472 million of our population below 18 years old, representing 39% of the country’s total population. To understand the parental consent and guarantee agreement, we need to explore the reason behind it, i.e. the vulnerability of a child. Children are considered most vulnerable as they are incapable of protecting themselves. Being innocent, children cannot protect themselves due to lack of experience and as they are unaware of the implications of harmful and abusive situations. They lack the requisite maturity and are therefore unable to handle certain situations unlike adults. For instance, if someone comes to an agreement with a child to work which hampers the child’s physical and intellectual growth, we cannot expect the child to make the right decision for him or her.
So, when the victim falls into the category of a child, certain concessions must be accorded to them. All children have the right to grow up and develop in a protective environment in which violence, exploitation and abuse are prevented, mitigated as well as redressed. That is why the responsibility of a child’s actions is given to their legal guardian through a parental consent and guarantee agreement. The purpose of this agreement is ensuring a life of safety, dignity and security to the children.
What is parental consent and guarantee agreement?
Parental consent is a consent with respect to the parent or guardians of a minor kid which permits the kid to take part in specific exercises. The consent must be taken from at least one parent before a minor can do things like getting clinical treatment, getting married or applying for a driving permit or getting vaccination. It is considered a fact that guardians can be designated to follow up for the benefit of a minor until she or he arrives at a mature age.
There are many reasons for parental consent. In case of medical purposes, minors can have severe injury or body modification via surgeries and it is therefore important for an adult who can understand the consequences of such surgeries and procedures to give assent for the same . In case of travelling, something irrecoverable may happen to the minor child or the child, if travelling solo, can get lost, be abducted, trafficked for his/her organs. Marriage is a big decision in life and if a minor takes that decision without letting his or her parents know, then it can be a great loss for that child. In case of photography of child actors, parental consent is must as the photograph can be used for private purposes as well. To avoid these unwanted situations, parental consent is very important.
Generally, parental consent can be taken through a letter or email or a specific form. But for larger purposes, we should have parental consent and guarantee agreement. This is an agreement signed by the authorised guardian of a child that describes a child doing some activity under the consent of his or her legal guardian. The agreements can be of various types like for launching a music video of a child who is a minor or for acting in a film or going through special medical treatment. In those big decisions of a child’s life, if a parental consent and guarantee agreement exists then we can prevent many risks that one might face in case of a dispute. The terms and conditions vary on the agreement to agreement basis.
Who needs parental consent and guarantee agreement and why?
The capacity to contract is one of the most essential elements of a valid contract. The parties to a contract must have the contractual capacity i.e., legal ability to make a valid contact. The capacity means the competency or eligibility of the parties to enter into a valid contract. As per the Indian Contract Act,1872, any contract with a minor is void ab initio and even after the person attains majority, the same agreement cannot be ratified by him. According to Section 11 of the Indian Contract Act, 1872, a contract by a major, sound-minded person and a person not disqualified by law is valid as those have the capacity to contract as in, they are competent to contract whereas a contract by a minor, unsound minded person and person disqualified by law is void agreement as they have not the capacity to enter into a contract as in, they are incompetent to contract. Section 3 of the Indian Majority Act, 1875, states that a person who has not reached 18 years of age, is a minor. The exception to this is if the child’s guardian is appointed by the court (lawful guardian), then the age of majority is 21 years. A minor cannot be stopped from pleading to the minority and can therefore escape liability on grounds of the minority.
The minors cannot make any decisions that will be binding, they need their guardians who can be liable for their deeds. As the minor cannot go into a contract, they need their parents who can make the contract on behalf of the minor. In this regard the minor needs parental consent and a guarantee agreement to authorize their activities. Besides, parental consent is required for those who are physically or mentally disabled. When an agreement of parental consent is made by a lawful and competent guardian on behalf of the minor, it will be a valid and enforceable agreement.
Position of an adoptive child
According to Hindu Law, the matter of adoptive children is governed by Hindu Adoptions and Maintenance Act, 1956 which talks about how adoption takes place, who can take or give adoption and if adoption is made of a child it is ensured that the child is below the age of 15 years. Any child above the age of 15 years cannot be given in adoption. On being adopted, the adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes. Everything of the adopted child will be governed by the adoptive family and not the natural family where he was born. The moment the child is adopted, it will make him or her as good as the natural child of the adoptive family. Therefore, on being adopted, the adopted child shall be deemed to be the child of his or her adoptive parents in all means be it rights of property or maintenance. In Hindu laws, an adopted child is equivalent to a natural-born child. So, the requirements of parental consent for an adopted child are similar to the natural child.
Key clauses to be mentioned in a parental consent and guarantee agreement
We need to give the utmost care in this clause because here we give the details of who is giving the permission and for whom the consent is along with the other party to the contract. The name, address and age of the guardian and the child need to be given properly because a mere fault can lead to disputes.
The purpose of a particular parental consent agreement must be clear. The reason for the consent, whether to go under medical treatment or to travel, for example, should be included. In case of travelling, it should describe where the destination is, for how long and whether the child is travelling solo or with a group etc. The objective is to give compact, exact data so that broader security can be given in case there arises any need.
When the parental consent agreement will start and the end is important to be noted in writing. In this agreement, the effective date when all the parties signed the contract and the duration of the agreement i.e., the term of the agreement should be pointed out clearly. Also, if a contract needs to be renewed, that also should be added here.
In case the consent is for any particular service, then there must be a payment clause stating the mechanics of payment such as the date of payment, how money should be transferred and invoicing etc.
Obligations and duties
The key obligations and duties to perform of the parties must be specified. Every action that each party commits in order to fulfil their obligations and duties will be responsible in case there is a default. Properly stating the obligations and duties in writing, often helps to resolve disputes that might arise in the future. If these things are duly mentioned, then it will help to seek compensation for specific enforcements.
Representation and warranties
Representation is a set or presentation of facts in a manner to induce someone either by words or conduct to enter into a contract and a warranty is a promise that a condition or an assertion of fact is true and is typically supported by an implied promise of indemnity if the condition or assertion is false. A warranty may apply to the present and future. In this agreement, the guardian will be representing they have full authority to consent to the child’s actions and no other person’s consent is required.
Under this clause, we should mention the circumstances under which the parental consent and guarantee agreement can be terminated. There should be a right to terminate the agreement. Termination can be either for convenience or for breach.
It plays as a promise made by one party to hold the other party harmless against losses caused by the other party’s action. It should be specifically mentioned about the indemnification against all the damages and losses for breaching any of the representations and warranties.
This clause is very important to be added as a breach of this clause can lead to termination. It should include how the information will be shared with whom and what measures should be taken to keep the confidential information safe.
Governing law and dispute resolution
The selection of governing law is very important. It is also crucial to keep the dispute resolution clause tightly worded so that the contract is speedily enforceable. The parties should give consent for the jurisdiction of the law.
An assignment clause means a transfer of rights, titles or interest in a contract. In this agreement, it should be mentioned that the rights can be transferred to whom under this clause to avoid disputes regarding transferring rights of the particular service.
The parental consent agreement must have a signature clause at the end. Without the signature of the child’s parents or authorized guardian, this agreement will not be completed.
Refer to a sample of a parent consent agreement here.
The parental consent and guarantee agreement signed by the parents of a minor is very crucial because firstly it is about liability as, if a minor were to end up causing harm or injury to someone, it will not be legitimate to hold them to the same standard as adults. There might be situations where a minor’s decision will be forcibly induced under intimidation or exploitation or they may lack the capacity and knowledge to make a good decision. So, to avoid these kinds of situations, there is a need for the consent of their parents.
We cannot hold the children accountable for their behaviour as they don’t possess enough knowledge and experience. As parents will be fully responsible for their decisions, they can be fully relied upon to give consent for their child’s activities. The parents will be accountable for their child. So, a parental consent and guarantee agreement helps to bring legitimacy to the child’s activity and at the same time protects the child. In any disputes, if the activities of a child are bound by parental consent and guarantee agreement, then it can avoid many legal issues arising from that activity.
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