Medicals for Non Migrating Children

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Many people are surprised by a request from DIAC that their children do a medical exam even if they are resident with a former spouse or partner and are not migrating to Australia.

Legal background

  • Since 1998/99, Australian migration law defines a natural child under 18 as automatically "dependent" (if single)
  • This applies even if no financial or other support is provided
  • A Child migration visa carries a "health waiver", in other words, has less stringent medical requirements than a Skilled migration visa.
  • If there was no rule to prevent it, the way would be open for people whose child had a medical problem to exclude their child from their migration application and just lodge a Child Migration visa sponsorship when they arrived in Australia.
  • Hence, DIAC will as a matter of principle, expect that all non-migrating children aged under 18 meet standard health requirements.
  • Children who are aged 16 and 17 may also be required to complete a police check

Waiver of medical exam requirement

  • The law does allow for the medical exam for a non-migrating child to be waived if in the circumstances it would be "unreasonable" for it to be undertaken
  • If, for example, you have no legal custody or access rights to the child, then if you send documentation of this it will normally be accepted.
  • If you do have access rights to the child then you will normally be expected to arrange a medical. In many countries, the custodial parent has no legal right to veto this. If you have no legal right to arrange a medical, then DIAC will normally expect to see evidence of this (eg letter from local lawyer explaining the law).
  • In addition to showing documentation of the legal situation as it applies to your case, you will probably have to complete a Statutory Declaration explaining your relationship with the child and the other parent and how the estrangement developed.

What happens if I later on want to sponsor the child?

  • Obtaining a waiver of the medical requirement as outlined above does not legally bar you from sponsoring the child in future.
  • However, DIAC will want to see some strong evidence that circumstances have changed in a way that cannot be foreseen. For example, if the custodial parent has died or become incapacitated.
  • It is possible that many years after migrating the child will want to be sponsored (if still aged under 18).
    • For example, if the child has now reached mid teens and wants to get to know the other parent.
    • If a long time has passed since the initial migration and the child is healthy, then normally a visa sponsorship could be done at that point (subject to necessary legal consent from the other parent).
    • However it is essential to obtain professional assistance before doing any sponsorship of this nature and strongly advisable to wait until after you have become an Australian citizen.
  • This is why it is best to get the child to do medicals if possible : it makes it possible to more easily sponsor the (under 18) child to migrate to Australia later on.

What if the child is close to age 18?

  • It is possible that a child who is close to age 18 may independently refuse to undergo medicals and police checks, if not migrating with a parent.
  • DIAC usually deal with these cases on an individual basis. If a waiver is granted to a child of that age then it is quite likely that the child can never be sponsored to migrate to Australia (other than in the most exceptional of circumstances).
  • If the child turns 18 before your visa application is decided, then provided that you are not financially responsible for the child's basic needs then normally the child ceases to be "dependent" and your visa application can proceed without considering the need for a waiver.

Identity requirements for medical exams

  • Most medical exam providers require positive identification, usually a passport
  • If your child does not have a passport, or if the other parent will not release the passport, then you should discuss with your case officer and failing that, get immediate professional advice. Bear in mind that many migration agents are not familiar with this area and you need to choose one who is.
  • In the United Kingdom, a custodial parent does not normally have the right to veto the issuance of a British passport

The moral question

  • If you are leaving a child behind with another parent have you considered the impact on that child?
  • This applies especially if the other parent is negligent or violent and the child needs your support.
  • Is there any option to get custody of the child?