Iskudo

Hi,

I am planning to apply for a prospective marriage visa and enter
Australia later this year to marry my fiance who is an Australian
citizen.

My question concerns my two sons. I was never married to their father
and we lived together for only a few years, we have been separated for
almost 7 years. Will I need his permission to move my sons to
Australia even though the UK law says he has no parental
responsibility?

Although we plan to tell him and hope he approves he is quite likely to
disagree just to make life difficult for me.

Any advice about this matter would be gratefully received, including
whether I can bypass his approval if necessary.

Thanks

Denise


--
iskudo

Gill Palmer

Denise

It depends on a whole stack of factors. I think what you ought to do is to go and see a really good solicitor in the UK who specialises in Family Law, and show him/her the children's birth certificates. Tell him/her in no uncertain terms that DIMIA will not upset UK Law where the children are concerned, because they won't, and that is all there is to it.

The question for the solicitor is whether or not you can lawfully remove the children from the UK without their father's consent? Family Law in both countries is heavily biased towards protecting the child, not the parent.
He might not have "responsibilities" but that does not automatically deprive him of 'rights' I suspect.

Go see a good lawyer, honey.

Gill

JAJ

Unmarried fathers have few (if any) rights in the UK unless they have obtained a court order to that effect. It may be different for children born recently if the father is named on the birth certificate.


Jeremy

Gill Palmer

JAJ

In the last couple of weeks, a DNA-testing company has opened a whole load of shops/clinics in the UK. Apparently their service is suprisingly cheap. It is going to make it far easier for men who want to bring Paternity suits, because it will enable them to get their own DNA profile and then insist that the children's DNA is tested as well, I suspect.

Also, there is an activist group called "Rights for Fathers" or something similar. They have been attracting a lot of attention recently in the UK, and it would not be difficult for Denise's ex to get in touch with them. Whether or not their own ideas would succeed in the long run, I suspect that they know plenty of ways of trying to de-rail Denise's attempt to take the children out of the UK. As I say, the ex might not succeed in the long run, but I suspect he could be a real pest if he tries, which might cause a lot of worry, delay and expense.

For that reason, I think Denise would be well-advised to see a solicitor pronto, in order to ring-fence the children legally before she says anything to her ex. If she can present him with a legal fait accompli, that would be desirable, I reckon, plus clip his wings about how much interference he might otherwise try to run.

Denise says she split up from this man 7 years ago, so the younger child must be at least 6. She does not say whether she named the father on their birth certificates, and if he can prove that he is the biological father, via DNA, he might be able to insist that he becomes named on the birth certificates, I suspect. I believe that people who have undergone sex-changes are now able to force the Registrar of Births to alter their own records (the European Court gave them this right about 3 years ago now, I believe, and I know someone who has done it.) That issue tends to weaken the idea that the Register of Births is cast in tablets of stone and cannot be altered, plainly.

Gill

Iskudo

Gill Palmer Wrote:
    > JAJ
    >
    > In the last couple of weeks, a DNA-testing company has opened a whole
    > load of shops/clinics in the UK. Apparently their service is
    > suprisingly cheap. It is going to make it far easier for men who want
    > to bring Paternity suits, because it will enable them to get their own
    > DNA profile and then insist that the children's DNA is tested as well,
    > I suspect.
    >
    > Also, there is an activist group called "Rights for Fathers" or
    > something similar. They have been attracting a lot of attention
    > recently
    > in the UK, and it would not be difficult for Denise's ex to get in
    > touch
    > with them. Whether or not their own ideas would succeed in the long
    > run, I suspect that they know plenty of ways of trying to de-rail
    > Denise's attempt to take the children out of the UK. As I say, the ex
    > might not succeed in the long run, but I suspect he could be a real
    > pest
    > if he tries, which might cause a lot of worry, delay and expense.
    >
    > For that reason, I think Denise would be well-advised to see a
    > solicitor
    > pronto, in order to ring-fence the children legally before she says
    > anything to her ex. If she can present him with a legal fait
    > accompli,
    > that would be desirable, I reckon, plus clip his wings about how much
    > interference he might otherwise try to run.
    >
    > Denise says she split up from this man 7 years ago, so the younger
    > child
    > must be at least 6. She does not say whether she named the father on
    > their birth certificates, and if he can prove that he is the
    > biological
    > father, via DNA, he might be able to insist that he becomes named on
    > the
    > birth certificates, I suspect. I believe that people who have
    > undergone
    > sex-changes are now able to force the Registrar of Births to alter
    > their
    > own records (the European Court gave them this right about 3 years ago
    > now, I believe, and I know someone who has done it.) That issue tends
    > to weaken the idea that the Register of Births is cast in tablets of
    > stone and cannot be altered, plainly.
    >
    > Gill
    >
    > --

Thanks Gill,

All thoughts and comments are very welcome.

My sons are 8 and 9 and my ex partner is named on their birth
certificates. He has access to the children and usually sees them on a
Saturday. There have been times when he has chosen not to see them and
I have accepted this as his right.
I do hope that he can see that for us to be a complete family instead
of me struggling on my own, even if it is in Australia, can only
benefit the children. I would like to think that our sons will be able
to contact him, and him them, when they want and that he will be there
for them if they need him.
I am just trying to work through any potential problems before they
arrive.

I intend seeking legal advice as soon as possible, simply to have all
the facts ready when I confront him.

Thanks for your comments,

Denise


--
iskudo

Gill Palmer

Dear Denise

Since posting this, I have had a PM from somebody who asks not to be identified or quoted publicly, for reasons which I do not feel able to explain, because a lot of the help on this forum is given privately, one to another, and one must respect people's wishes for confidentiality if asked for.

Suffice to say that my informant has come up with some good points. I am told that fathers may not have 'responsibility' but that they may have 'rights' nevertheless, and that the UK Court will not ride roughshod over those 'rights'. This being the case, I am advised that rather than doing anything which your ex or the Court might view as being hostile on your part towards him and his 'rights,' it would be a lot safer if you can coax him into coming on-side with you about what is best for your joint children.

I am told that you are going to have to get your ex's consent in order for you to be able to remove the children from the jurisdiction, because I am told that DIMIA will not tolerate anything else except a Court Order in your own favour. If you were to apply for such an Order and he were to resist you, I gather that it could involve very serious delays, very considerable expense, and anguish all round.

So the ideal solution appears to be to request his consent and hope that he will agree that a new life in Australia might well be best for the kids, that there could still be plenty of contact between him and the kids if he and they both want it, perhaps the chance for him to visit them in Australia and so forth. Get him on side, in other words, and get his consent, without which things could become very difficult indeed.

We are talking about tactics here, and trying to plan them in advance for you and with you, if you like.

My informant is telling me that you should arrange to see a Family Law solicitor quickly, which is what I said at the outset as well, and put your cards on the table with him and her. Anecdotally, from people without relevant qualifications (including JAJ) you are hearing two different ideas about which way to play it. Your soliciror will come down firmly in one direction or the other, I feel sure, and if your instinct is that you can trust your solicitor, then you should handle the issue in whatever way he or she recommends.

I hope that your ex will turn out not to be interested in his children's futures (so many are not) and that he will say, "Do as you please and I'll sign whatever you want me to sign." If so, that would be the end of the problem.

If he should decide to be bloody-minded, then it is as well for you if you are playing off the front foot instead of off the back foot, by getting solid legal advice under your belt before you say anything to him, particularly with regard to how to play the tactical game vis-a-vis him.

On an on-line forum like this, it is inevitable that anyone asking a question is going to receive conflicting and, in essence, inexpert advice. Even a solicitor instructed by you would need to obtain much more information from you than you have chosen to reveal in your post before he/she could give you accurate legal advice.

Basically, if you think your ex might be difficult, then you need detailed legal advice sooner rather than later, tailor-made to suit all the facts which you have not chosen to reveal to the public at large. I wouldn't do so either. This sort of website provides a place where (hopefully) reasonably well-informed, common-sense debate can take place, but really no more than that. Where the situation is not completely clear cut, which yours isn't, it is much wiser to take expert professional advice before you do anything else, which I hope you will now do.

Lol

Gill
xx

JAJ

I suggest you make yourself familiar with Public Interest Criteria 4015-4018 in Schedule 4 of the Migration Regulations before making sweeping statements like that.




Excuse me! I just made a factual observation about the law in the UK which happens to be true in the majority of instances.

The normal process in such instances, if no parental rights are held by the other parent, is to get a family lawyer in the UK to write to DIMIA explaining this. DIMIA ought to accept this, however some case officers don't know their own policies in this area, so often a good migration agent is required to insist they apply their own law. And one needs to choose an agent well, as many agents don't understand the law either.




Of course she ought to see a family law solicitor in the UK who should write to DIMIA explaining what exactly the law is as far as the UK is concerned.

I don't know how you think I suggested otherwise.

But the bottom line is that in most cases fathers not married to the mother have few, if any, rights in the UK and most family lawyers will be happy to explain that in detail.



Jeremy

Gill Palmer

Dear Denise

I reckon you probably sent this post whilst I was hearing from others behind the scenes and figuring out how best to present things to you.

You are on the right track, lassie. Get the legal advice first. Then, I suggest, be seen to "consult" the ex rather than to "confront" him. We now know that you do acknowledge him as the children's father, that he does see them regularly, and if he isn't coughing up towards their maintenance as well then he should be, in my personal opinion.

So when we talk about him not having 'parental responsibility' it sounds to me as if we are talking about things like operations and such-like. It happened to a neighbour of mine recently. Dave's 14 year old son lives with him, but goes to stay with his mother fairly frequently. Recently, while Jack was with his Mum, he fell out of a tree and broke both arms. I gather from Dave that one of his arms will not set properly,and he will have reduced mobility in his wrist, unless the bones are pinned into place, according to the medics. Doing that would have involved a general anaesthetic and Jack spending at least one night in hospital. Jack kicked up such a fuss, burst into tears etc that his mother decided to give in to the child. Dave is hopping mad because he believes that Jack's Mum should have ignored the fuss and told the doctors to get on with it. However, she gave in to the child and refused consent for the op. Dave consulted a local solicitor, but was told he could not overrule Mum because although he is the named father, and indeed Jack lives with him, Dave was never married to Jack's mother and therefore he cannot overrule her about this, so the solicitor told Dave and Dave told me.

However, a kid with a gammy arm is not the same thing as a kid on the other side of the planet, obviously, and short of your children's father moving to Australia as well, the Saturday visits would obviously cease. Whether that is really in the children's best interests is not for me to say.

However, I am now more convinced than ever that you do need really solid legal advice and I am hugely relieved that you have decided to get it.

Lots of love, chin up and PM me whenever you wish, honey. I can't do the legal bit for you, but I can definitely provide you with moral support & encouragement, and I would be interested to hear what happens next and the eventual outcome.

Stay chirpy

Gill
xx

Iskudo

Gill Palmer Wrote:
    > Dear Denise
    >
    > I reckon you probably sent this post whilst I was hearing from others
    > behind the scenes and figuring out how best to present things to you.
    >
    > You are on the right track, lassie. Get the legal advice first.
    > Then,
    > I suggest, be seen to "consult" the ex rather than to "confront" him.
    > We now know that you do acknowledge him as the children's father, that
    > he does see them regularly, and if he isn't coughing up towards their
    > maintenance as well then he should be, in my personal opinion.
    >
    > So when we talk about him not having 'parental responsibility' it
    > sounds
    > to me as if we are talking about things like operations and such-like.
    > It happened to a neighbour of mine recently. Dave's 14 year old son
    > lives with him, but goes to stay with his mother fairly frequently.
    > Recently, while Jack was with his Mum, he fell out of a tree and broke
    > both arms. I gather from Dave that one of his arms will not set
    > properly,and he will have reduced mobility in his wrist, unless the
    > bones are pinned into place, according to the medics. Doing that
    > would
    > have involved a general anaesthetic and Jack spending at least one
    > night
    > in hospital. Jack kicked up such a fuss, burst into tears etc that
    > his
    > mother decided to give in to the child. Dave is hopping mad because he
    > believes that Jack's Mum should have ignored the fuss and told the
    > doctors to get on with it. However, she gave in to the child and
    > refused
    > consent for the op. Dave consulted a local solicitor, but was told he
    > could not overrule Mum because although he is the named father, and
    > indeed Jack lives with him, Dave was never married to Jack's mother
    > and
    > therefore he cannot overrule her about this, so the solicitor told
    > Dave
    > and Dave told me.
    >
    > However, a kid with a gammy arm is not the same thing as a kid on the
    > other side of the planet, obviously, and short of your children's
    > father moving to Australia as well, the Saturday visits would
    > obviously
    > cease. Whether that is really in the children's best interests is not
    > for me to say.
    >
    > However, I am now more convinced than ever that you do need really
    > solid
    > legal advice and I am hugely relieved that you have decided to get it.
    >
    > Lots of love, chin up and PM me whenever you wish, honey. I can't do
    > the legal bit for you, but I can definitely provide you with moral
    > support & encouragement, and I would be interested to hear what
    > happens
    > next and the eventual outcome.
    >
    > Stay chirpy
    >
    > Gill
    > xx
    >
    > --

Gill,

Thanks for all you have written, I am very grateful.

I am keeping my fingers crossed that my ex will see that I am not
trying to hurt him and that it is in the interest of the children as
well as myself to start a new life.

I am going to seek legal advice and will be taking copies of this
thread with me as a starting point.

I will keep you informed as this may also help others in a similar
situation.

Thank you,

Denise


--
iskudo

Iskudo

JAJ Wrote:
    > I suggest you make yourself familiar with Public Interest Criteria
    > 4015-
    > 4018 in Schedule 4 of the Migration Regulations before making sweeping
    > statements like that.
    >
    >
    >
    >
    >
    >
    > Excuse me! I just made a factual observation about the law in the UK
    > which happens to be true in the majority of instances.
    >
    > The normal process in such instances, if no parental rights are held
    > by
    > the other parent, is to get a family lawyer in the UK to write to
    > DIMIA
    > explaining this. DIMIA ought to accept this, however some case
    > officers don't know their own policies in this area, so often a good
    > migration agent is required to insist they apply their own law.
    > And
    > one needs to choose an agent well, as many agents don't understand the
    > law either.
    >
    >
    >
    >
    >
    >
    > Of course she ought to see a family law solicitor in the UK who should
    > write to DIMIA explaining what exactly the law is as far as the UK is
    > concerned.
    >
    > I don't know how you think I suggested otherwise.
    >
    > But the bottom line is that in most cases fathers not married to the
    > mother have few, if any, rights in the UK and most family lawyers will
    > be happy to explain that in detail.
    >
    >
    >
    > Jeremy
    >
    > --
    > This is not intended to be legal or professional advice in any
    > jurisdiction

Jeremy,

Thanks for your comments,

As I have said previously, I am trying to pre-empt any potential
problems and find a way of dealing with them before they occur.

It is a case of knowledge is power in my case, but I hope I do not need
to use the power.

Thanks again,

Denise


--
iskudo

Gill Palmer

JAJ

For goodness sake stop it! You are not a UK-qualified solicitor whom the UK Law Society recognises as being clued-up on child-issue cases, and neither am I. Therefore anything you or I might say is necessarily inexpert. If you choose to view that fact as some sort of personal attack on yourself, then I firmly suggest that you come off it! The relevant children are in the UK. Exactly how best to play it with their oft-visiting father is the issue here, not your own ego or mine. Try to play the ball, not the man (or woman) I strongly suggest.

You agree that Denise needs careful legal advice. That being so, where is the difference between you and I?

Gill

lacey21

After 2002,
read the passport rules in the UK, this steers you in the right direction.

hope it all works out Lace xxx

lacey21

On this occasion Gill I have to (and I don't often) side with JAJ. When I first came onto this site I was just beside myself because I thought that I wouldn't be able to take my son out of the county. Father was on birth certificate, he has no parental responsibilities and has paid nothing. JAJ found the legislation for me within the realms of DIMIA in order to fight this. I did what he said, which was get a letter from my solicitor stating that this man had no parental responsibilities and another evidence that I had, that said he didn't see him and all that jazz. I did this and have now sent it off with my application form with a covering letter.

It says in the legislation (migration Law) that ( and I know JAJ is going to pick me up on this cos it isn't word for word) it all depends on the country you live in and what rules they play by. Now then, the UK say that men who were un-married to their partners before 2002 have no rights unless they go to court and get them. However, children who were born after 2002, well, fathers have some sort of rights. It says this on the passport form and you cannot get a passport now with out the other person consent and signature.

JAJ send that piece of info again please if you can (the migration law bit). It clearly states it on this if he sends it. I can't find mine.

Well I will tell you if this works in two weeks when I get my CO. They will be asking me for more information if it doesn't work. lol
Good luck, do what Gill and JAJ say and get some advice independently.

I hope he posts the link though, it will help you understand what DIMIA want

hugs guys Lace xxxx

WESTLY

There are only two safe ways to proceed:

Obtain the written consent, in the required legal format, from the other party for the children to be permanently removed from the UK, preferably including a statement that he has taken independent legal advice and believes that the best interests of the children are served by … This is not entirely safe, because he can always renege … Having reconsidered, I feel that the best interests of the children are served by …

If you are advised that the other party retains no parental rights, apply for a court order that says so.

DIMIA MUST take into account, the parental rights of the other parent, whether the laws of the UK permit you to permanently remove the children, and the best interests of the children. You cannot expect a visa case officer to be perfectly well acquainted with UK law, or Australian immigration law for that matter, and you certainly cannot expect a case officer to know what might be in the best interests of your children.

With whom will your children be living in Australia?
What are the parenting antecedents of these individuals?
What arrangements to you propose to make for their education?
What arrangements, if any, do you propose for significant adults to have access to the children, grandparents for example?
Having considered the issue, what is the opinion of the grandparents about the removal of the children?

You should consult a family law specialist, and be guided by the professional advice you receive.

lacey21

Found it guys,
thanks for the link JAJ I found it

Here it is give it a read:-
I hope it makes sense hugs LAce x


4015 The Minister is satisfied of 1 of the following:

(a) the law of the additional applicant's home country permits the removal of the additional applicant;

(b) each person who can lawfully determine where the additional applicant is to live consents to the grant of the visa;

(c) the grant of the visa would be consistent with any Australian child order in force in relation to the additional applicant.

4016 The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the additional applicant.

4017 The Minister is satisfied of 1 of the following:

(a) the law of the applicant's home country permits the removal of the applicant;

(b) each person who can lawfully determine where the applicant is to live consents to the grant of the visa;

(c) the grant of the visa would be consistent with any Australian child order in force in relation to the applicant.

4018 The Minister is satisfied that there is no compelling reason to believe that the grant of the visa would not be in the best interests of the applicant.