Child Custody and Australian Immigration

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Many posts on BE have shown that there is a generally poor understanding of how Australian immigration law deals with child custody issues. This extends to many migration agents and DIAC case officers, and is not helped by poorly worded immigration forms.

If seeking professional advice, whether a lawyer or a migration agent, it is essential to choose who who has training and experience in this specific area.

Australian law

In order for a person aged under 18 to be granted most permanent Australian visas (and some long-stay temporary visas-457), two special criteria must be met. They are found in Schedule 4 to the Migration Regulations 1994 and read as follows:

  • 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.

Date of Decision Criteria

  • In migration industry jargon, these are known as date of decision criteria, as opposed to date of application criteria.
  • In other words, they are assessed based on the circumstances when your visa is granted, not when you applied for it.
  • It means, for example, that if you have a critical threshold coming up for losing points etc, you should not delay application for this reason alone provided you are willing to risk the application fee
  • It also means that if a child turns 16 or 18 during the process, this will be taken into account. Although for any child turning 18, there are other issues to consider, including that of dependency.
  • However, the age that the child will be at whenever point you plan to migrate to Australia is not relevant.

DIAC policy

Some extracts from DIAC policy:

"The question of who has the right to determine where the child shall live varies from country to country. Generally, the person with sole custody of the child will have this right. However this may differ according to the jurisdiction. It will generally be decided by the local law of the country or state in which the child resides ... "

" ... officers should satisfy themselves that the local laws allow the parent (ie the family head or sponsor) to take the child to Australia either permanently or temporarily, as the case may be. This may be evidenced by:
- a court granting permission for the child to leave the court’s jurisdiction and/or to travel to, or settle in, Australia (ie a court order) or
- officers approaching the relevant authorities to confirm the parent’s legal status in relation to removing the child. For example, under Swiss law, it is clear that the custodial parent has the right to determine where the child shall reside and it is not necessary to seek the non-custodial parent’s permission for the child to migrate ... "

" ... If the laws of the relevant country allow a child to decide its own residence independently of adult permission, under policy this criterion may be considered to be met. For example, in some countries, a child who has turned 16 may be considered an adult and not require parental permission to travel etc."

Law of the Child's Home Country

The child's home country is usually the place where the child resides. If however the child is a citizen of a different country, and is only temporarily in the country of residence, then it may be the law of the child's country of citizenship.

In the absence of consent from the other parent, or anyone else with parental responsibility under the law of the child's home country, it is necessary to show that the law of that country permits the custodial parent to remove the child from that country. DIAC policy is quite clear on that specific point.

In some jurisdictions, a custody order gives a parent the right to remove a child permanently from the territory. This is not the case in the United Kingdom.

In order to show a DIAC case officer "home country law" a letter from a reputable family law practitioner in that country/state may help.

"Hague Convention"

  • It is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.
  • Both Australia and the United Kingdom have signed up to the Convention
  • The Convention is founded on the principle that the law of the child's "habitual residence" should be used to resolve any custody disputes.
  • In other words, if a child is unlawfully removed from one signatory nation to another, the courts in the territory to which the child has been taken are committed normally to return the child to the previous territory, where the custody dispute should be resolved
  • It is noteworthy that even if the child is a citizen of the country to which he or she has been taken, the child may still be returned to the previous country.
  • The Convention does not apply to children aged 16 and 17 (Article 4).

Unmarried Fathers

Some jurisdictions do not give unmarried fathers any parental rights over a child.

England and Wales

  • If child was born before 1 December 2003 then an unmarried father does not have any parental responsibility unless granted this by a court or through agreement with the mother.
    • Whether or not father is named on the birth certificate is legally irrelevant (although may indicate a greater degree of attachment that would support the granting of a parental responsibilty order).
    • If parents have subsequently been married, then the father does acquire parental responsibility even if not named on the child's birth certificate
  • Bear in mind that if father has a good relationship with child, he will probably get parental responsibility if he applies for it.
  • Where child is born on or after 1 December 2003, an unmarried father does automatically gain parental responsibility if he jointly registers the birth with the mother.
  • If no parental responsibility agreement or order exists in favour of the other parent, you may be able to get written confirmation of this from:
    • Principal Registry of the Family Division / The Divorce Registry, First Avenue House, 42 - 49 High Holborn, London WC1V 6NP. Tel: 020 7947 6000

Scotland and Northern Ireland

  • The law is similar to England & Wales except that the cut-off dates are 4 May 2006 (Scotland) and 15 April 2002 (Northern Ireland)
  • If no parental responsibility agreement or order exists in favour of the other parent, you may be able to get written confirmation of this from the Registers of Scotland:
  * Edinburgh Customer Service Centre
     Erskine House
     68 Queen Street
     EH2 4NF
   * Glasgow Customer Service Centre
      9 George Square
      G2 1DY

Children aged 16 and 17

  • In the United Kingdom, children aged 16 and 17 are normally free to decide independently where they would like to live
  • Sections 9(6) and 9(7) of the Children Act 1989 greatly restrict the circumstances in which a court in England and Wales can intervene in such instances
  • The law is similar in Scotland and Northern Ireland
  • However, not every jurisdiction gives similar freedom to children aged 16 and 17
  • If a particular jurisdiction restricts freedom of children aged 18 or over to move without parental consent, then Australia will ignore such laws where it comes to issuing a visa. However, obtaining a local passport or exit visa will still be the responsibility of the applicant.

No court order needed?

  • DIAC officers are not necessarily familiar with child custody laws in every non-Australian jurisdiction
  • If the law of your country of residence permits you to remove your child without any court order, then it is recommended to obtain a letter from a reputable local family law practitioner outlining local law and how it applies to your circumstances.
  • It would also be helpful to do a Statutory Declaration (sworn affidavit) detailing your circumstances and how the estrangement came about, especially if there is no contact with the "other" parent.

Format of a court order or consent from other parent

  • There is no specific format or template set down by DIAC
  • However, they do like to see words like "permanently" and "Australia"
  • If the other parent is giving consent, they also normally ask to see some ID attached for the other parent (to be sure the consent letter is not fake). A certified copy of a passport ID page is preferred, but if the other parent does not have a passport then it will be necessary to use some other form of ID, such as a photo driving licence or national ID card.
  • A consent letter should be drawn up in accordance with local law and witnessed/certified by a family lawyer in that jurisdiction.

Child already an Australian citizen or permanent resident?

  • If the child is already an Australian citizen, then obviously an Australian visa is not required to bring the child to Australia, provided the child has an Australian passport or Australian Declaratory Visa
  • However, even if the child has an Australian passport, you cannot bring an under-16 child to Australia in defiance of United Kingdom law. The other parent can seek an Australian court order and demand that the child be returned to the United Kingdom. You may also be committing an offence under the U.K. Child Abduction Act 1984.
  • The same applies if your child already has a permanent resident visa (issued before the custody dispute arose) or a New Zealand passport.

Obtaining an Australian passport for a child

  • If your child is an Australian citizen, then the Australian Passports Act 2005 imposes strict requirements for parental consent for the issue of an Australian passport to anyone under the age of 18
  • These requirements are often stricter than those imposed for migration purposes (because two different government departments are in charge).
  • There is no automatic recognition of foreign court orders or non-Australian law but this can be considered on a case by case basis by a senior passport officer
  • If an Australian passport cannot be obtained, and you are in compliance with the child custody laws of where you live, one alternative is to obtain an Australian Declaratory Visa (ADV) in a foreign passport. An ADV identifies your child as an Australian citizen.

Parents split up after migration

  • It is not unknown for parents to split up after migrating to Australia.
  • Once you arrive in Australia with a view to settlement, and if you have a permanent resident visa, then although it is a grey area, it does not usually take a long time before Australia becomes the child's country of "habitual residence". Even if the child is not yet an Australian citizen.
  • From this point, One parent does not necessarily have the right to demand that the children be taken back to the United Kingdom.
  • Please consider this before migrating, if you feel your relationship is already under strain.

A moral question

  • If your child has a good relationship with the other parent, please consider the impact of separation from that parent on the child.