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Guardianship of Children-Australia

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Guardianship of Children-Australia

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If you move permanently to Australia, you need to consider the arrangements for guardianship of children should you (as parents) become deceased or incapacitated. This is especially relevant for single parents but is necessary also to cover the (unusual) cases where two parents die simultaneously.

Issues to consider

  • As long as the child is a permanent resident (or citizen) then he or she is not subject to removal from Australia if the parent becomes deceased.
  • Laws on guardianship may vary from state to state.
  • You need to find a good family law practitioner in your state of residence to discuss what would happen in these circumstances.
    • Would you want your child to remain in Australia or return to the UK;
    • What is the fostering/care program like in your state/territory;
    • Are there any relatives or friends who would be willing or able to take on your child, either short or long ter;
    • Are there any relatives who you would NOT want to look after your children;
    • Is the child at (or near) an age where he or she is self-sufficient?
    • What can you do to document your wishes and concerns. Children aren't property so you can't leave them in your will, but there are likely options for you to express your wishes. Either in your will or in another document.
  • There isn't any visa for other relatives to migrate to Australia to care for your child in these circumstances. However, in unusual/compassionate circumstances there is always the option of applying for a visa through the Ministerial Intervention process. An immigration agent familiar with the ministerial process (only a small number of agents have such experience) can advise.

How to mitigate the risk

  • Documentation of your wishes in line with local laws. Keep it updated every few years. And if there are any UK relatives who you feel would be neglectful, abusive or violent, make sure you have stated that these relatives should not get any custody (they may demand it if you're not around). If there are fact-based reasons for your concern, document them.
  • Ensure that a trusted friend has a copy of your wishes, as well as your lawyer. If such a friend is prepared to act as an advocate for your child, all the better.
  • If you wish your child to remain in Australia, then Australian citizenship does give some additional protection. A child who is a permanent resident is not liable to removal, but there may be fewer impediments to the courts or social services giving an order granting care to relatives back in the UK.
  • If any close relatives or friends join you (as migrants) in Australia, that gives your child more of a support network. If you become good friends with Australians and feel they are trustworthy and like your children, you could consider discussing your concerns with them (without asking a direct question) and see what they say.
  • As most simultaneous parental deaths occur in transportation accidents, you may want to consider limiting the extent to which you travel together.
  • Make sure you have plenty of life insurance with appropriate documentation ensuring that your children have access to the funds, through a trustee if necessary.

If children do return to the UK

  • If they are citizens, they can always come back.
  • If they're residents, then at some point their resident visas will expire. Laws in future could be different, but under 2010 laws, if a child in such circumstances shortly after age 18 applied for a Resident Return Visa, he or she would probably get one.