Pollyana

I know this is a frequently mentioned topic, but its not one I've ever needed to pay much attention to! I've advised someone to talk to an agent, as will as having a look through posts on here for info that would help, but I don't remember an exact replica of this case, so here goes, one for all you child custody experts.........

Child living in the UK with Mother. Parents have never married or lived together, although Father's name is on the birth cert and he has played a large part in the child's upbringing.
Father now applying for PR onshore, child now just 17, has visited a couple of times and thinks he might like to live here. As the child would need a medical anyway, it seems logical to include the child on the PR application as a migrating dependent instead of a non-migrating one, thus giving the child the chance to make his own mind up about his future home after living her or a few years.
Father is quite happy with this and happy to take over parental responsibility.
Mother also quite happy with the idea and won't object.

So.......as far as i know there has never been any court order about custody or anything like that because his mother has just brought him up herself and had Parental Responsibility.
My thoughts were that maybe the father can include the child on the PR application, along with a letter from the mother stating that she has no objection to him leaving the country. Am I on the right lines? I've tried searching, to point the father in the right direction, but keep coming up with actual custody orders - which don't seem to feature here.
Also I presume the child will have a say in things himself being 17?

I've read the Wiki and it does look like just a consent letter is needed drawn up by a family lawyer?

(Its an ENS visa by the way, and should be granted well before he hits 18)

Any help gratefully received as ever!

suziegaz

hi pollyana,

these are my thoughts on your question and if i was in this situation then:

as an unmarried mother ov a child born before 2002, even with the fathers name on the birth cert and who also had massive input with said child, the UK law still states that the mother has sole responsibility of said child, UNLESS otherwise indicated by a court order, or if a consentual agreement with the mother exsists (i presume another type of legal written agreement, as a verbal agreement can be refuted)

as none are in force and mother is happy for child to emigrate then:

I think your friend should ask the mother to:

a) write stat dec and have it legally witnessed in front ov solicitor, and
b) fill in form 1229 (i would also get this legally witnessed)
c) take child to solicitors with mother, so that the solicitor can see it is a mutual choice

d) the child is ov an age where they can also help with any custody issues in the UK so i dont see why the child cannot also have a say for themself, and i would also consider getting child to write stat dec discussing why he would like to try out oz, countersigned by mother and solicitor.

something else you might wish to consider is who has provided for the child whilst in the UK ( ie maintanance payment / working family tax etc.... cause if mother has any ov these then she will be financially less sufficient)


just my thoughts to get the ball rolling, i am sure someone will come along soon and help you out
suzie
x

greenlaker

Hi

The law changed on the 1 December 2003 in the UK, stating that all children born to parents whether married or not had equal Parental Responsibility.

If the child was born before this date, for the father to gain Parental Responsibility all they have to do is apply to the courts stating the degree of commitment shown by the father to his child, the degree of attachment between father and child, the father's reasons for applying for the order.

You do this at your local court, as long as the mother dose not object its a straight forward process. I think it costs about £80 or there abouts?

Have a look on this link its the UK government site and explains the process.

http://www.direct.gov.uk/en/Parents/...hts/DG_4002954

I only know this from personal experience, hope it helps?

slackbloke

Hi Pollyana,
I cannot see how the father can include his child in this particular case as the child could not be described as a dependant. The father would need to provide evidence of substantial support which I would assume is unlikely give the scenario described? Further to that, I think he would also need to obtain parental responsibility. Given the circumstances you have described I don't think this would be a major issue to obtain or possibly he has it already due to his name on the birth certificate (implying he may have jointly registered the birth). Although a consent order would be required, I don't think it is relevant until the father has parental responsibilty.
While the age is going to be important in this case. the problem remains that I can't see how the child cannot be classed as dependent.

It's a difficult and unusual situation and I hope it can be resolved but I don't think the regulations, as they stand now, allow for such a case.

JenniGee

In line with other postings here, I think it should be relatively straightforward for the son to be included in the visa.

There is no PR involved as the son was born before 2003, but on the other hand, the son is 17 & able to make his own mind up legally....any application from the mother to Court to keep the son in the UK would founder immediately.

But that's not relevant because she has agreed to moving...just get her to provide a letter, sign the DIAC form (not forgetting the photocopy of the bio-data page of her own passport for her identity) & a copy of the birth certificate which shows both parents names.

Easy-peasy

Pollyana

Thanks guys, much appreciated! Looks like I had picked up enough from all your previous threads to be thinking along the right lines at least.
The father has always contributed emotionally and financially to the upbringing of the child and though his job has required long periods of physical absence, he has been there in person whenever possible, and has an excellent relationship with the mother. From what I gather the mother has always ensured the child has stayed close to his father and is delighted that the are now so close.

So as the consensus seems to be that Stat Decs/letters wrtten with and witnessed by a solicitor should be enough. Just a bit concerned by Slackbloke's concern that they may not be able to prove dependency but I guess only DIAC can rule on that one.
Do you guys think they will need to go to court and get parental responsibility transferred to the father?

Suzie - thanks for the extra hint about the mother losing out financially - I honestly don't know the position there, but I'll make sure the father reads the thread.

JAJ

With respect, all three statements are wrong (assuming visa can be granted before child is 18).

Pollyana

Thanks All the signs point to a grant before the child is 18 so

JAJ

Is the father applying for PR onshore? If so, is the child going to be onshore as well, and if so, on what visa?

I'd suggest professional assistance to confirm, but it may be better to apply for an offshore ENS (unless father is using the 2 years on 457 rule). Unclear if processing times are different.

16 and 17 year olds in Britain are free to make up their own minds about where they want to live, so parental consent shouldn't be an issue. May not do any harm to include it anyway (with a cover note saying it is not necessarily needed). Ensure ID document for consenting parent is included. I see no particular need to transfer parental responsibility.

In order to move the process along, all documentation etc. should be sorted out now to avoid delays later. Child will need police checks as well as medicals.

I'd really recommend good professional assistance to handle a case like this as it's unusual and only one chance to get things right first time.

Pollyana

He's already doing the police checks, medical in hand. The father will be applying onshore, he already holds a substantive (though temporary) visa.
I guess the only way to get the child over to apply onshore would be on an e-visitor/ETA. Would he need to be onshore when they apply? Not that it would be a huge problem for the father to apply for an offshore ENS and just leave to get the visa granted.
I shall provide him with the relevant numbers for professional assistance never fear, as you say he's only going to get one shot at it!