Ex trying to get us sent back to UK

My wife, me and my step son currently live in Melbourne. My wifes ex has now decided he didn't give us permission(which he did) to live in oz and is going to try get us sent back to the UK.

My wife is an Australian citizen and my step son is too now. Can he do this even tho they are Australian citizens????

Well all this would have been arranged correctly when they initially entered Australia on their visa at that time. He must have had input in the arrangements at that time.

Sounds just like he's just making trouble for whatever reason.

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My wife, me and my step son currently live in Melbourne. My wifes ex has now decided he didn't give us permission(which he did) to live in oz and is going to try get us sent back to the UK.

My wife is an Australian citizen and my step son is too now. Can he do this even tho they are Australian citizens????

First job is to find the paperwork that shows he gave permission. He does not have a good case if he has already given permission.

How long have you been here? A child that is settled is unlikely to be moved.

Is he doing it through the Hague convention?

Permission was verbal. And stupidly we thought he would keep his word as there was no problems between us all. We have been here just over a month now. Step son starts school Jan 27th. He has mentioned the Hague convention, but reading into it, I'm not sure what they will do. He can get a court order in UK, but step son and wife went out on Aussie passports, and I don't think a court order would be granted. But who knows.

As there was no issue at the time, there was no problem with the visa. But the law in the UK says we can take a child outside the UK for 28 days without permission. Which we got. But verbally. Now the 28 days is up, he's done a U-turn and decided to say no!!:mad:

Unfortunately, it sounds like you moved here without protecting yourself by doing it through the proper channels and obtaining the relevant paperwork to support you.

A visit for 28 days is different to moving here. It makes no difference that your wife and step son went out on Australian passports, the Hague Convention has nothing to do with that.

A good lawyer is probably what you need right now.

Does it make no difference if they're Australian citizens??? Is there a Citizens Advice Bureau out here, as there is in the UK

I would suggest you consult a migration agent asap.

I don't quite understand the details of your case but it sounds like you used the 28 day loophole to leave the UK without the courts permission for your step son to migrate - if he was resident in the UK and your wife permanently removed him without the correct permission (verbal is meaningless) then it would be a breach of the Hague convention and he could apply to court to have him returned to the UK.

No expert but I see no reason why it wouldn't be granted - you may need t return to the UK and apply through the courts properly to take him - I don't know how likely that is to be granted unless his dad had no contact with him.

It sounds like he maybe didn't realise he had a choice and someone has mentioned the Hague Convention to him or the reality of not seeing his son has hit home and he knows he can do something about it.

Citizenship has nothing to do with it and on paper his son was removed from the UK without his permission - if you have anything at all that shows he knew it was a permanent move - letters, emails etc. that may help but essentially he can easily say he gave permission for a holiday and after 28 days you have not returned and he has been illegally removed from the UK.

I must stress I am no expert and have not been through this - just seen many similar cases on here.

Does it make no difference if they're Australian citizens???

None at all.

The child was born in the UK I am guessing and so is also a British citizen. The UK is his habitual place of residence (you have been in Oz a month) and this is why you need to get good legal advice.

Have you kept anything, text messages etc, that show the Father supported the move to the other side of the world? This may help you.

I would suggest you consult a migration agent asap.

 

I don't quite understand the details of your case but it sounds like you used the 28 day loophole to leave the UK without the courts permission for your step son to migrate - if he was resident in the UK and your wife permanently removed him without the correct permission (verbal is meaningless) then it would be a breach of the Hague convention and he could apply to court to have him returned to the UK.

 

 

I did wonder about that too, but gave the OP the benefit of the doubt that this was not the case. People can and do change their minds.

Either way, they do need good legal advice right now and understand the reality that if they do not have permission then the child is likely to be removed back to the UK.

Does it make no difference if they're Australian citizens??? Is there a Citizens Advice Bureau out here, as there is in the UK

Citizenship will make no difference .

There is CAB in Melbourne - google it and find the closest to where you live but this is not something to ask volunteers for help with, you need a migration agent and a solicitor quickly.

Why do you think his dad is doing this now? Is mediation/negotiation possible? It could easily cost £10s of £1000s going through court - there is a good sticky on here about peoples experience, although mainly it is British citizens who want to take their children back to the UK whose partners will not give permission but the Hague convention is international law so the direction doesn't matter.

Have got some texts from him, saying he likes the school we have chosen for him, and one saying could he see him on his birthday in August if we flew back or visa versa. But that's it.

Have got some texts from him, saying he likes the school we have chosen for him, and one saying could he see him on his birthday in August if we flew back or visa versa. But that's it.

The school one might be useful as it shows he was involved in school choice as opposed to believing it was just a holiday?

I think the Dad is doing this now just to cause trouble. Thinking back now, I think he had every intention to do it, and waited for the 28 days to pass. But at the time when we sat down and talked about it, he said do it, he'll miss him, but he'd rather him brought up in Australia than the UK which is going down hill. So we took his word. How wrong were we. We said about getting a court order, but he said don't waste your money, I'm not gonna disagree with it...

I think the Dad is doing this now just to cause trouble. Thinking back now, I think he had every intention to do it, and waited for the 28 days to pass. But at the time when we sat down and talked about it, he said do it, he'll miss him, but he'd rather him brought up in Australia than the UK which is going down hill. So we took his word. How wrong were we. We said about getting a court order, but he said don't waste your money, I'm not gonna disagree with it...

Speak to a lawyer for advice, even if it is just for one hour, it will be money well spent.

If he has already changed his mind once, he might well do it again.

He's even told his Dad on Skype he don't want to come back. Gonna have to drag him back shouting and screaming I know that. He's got a girlfriend already (at 9) they are inseparable!! His Dad don't care tho..But I don't think a judge would either!!

Have got some texts from him, saying he likes the school we have chosen for him, and one saying could he see him on his birthday in August if we flew back or visa versa. But that's it.

Well that's something - make sure you keep them! They would certainly help you defend an abduction claim.

I assume the back story is your wife is Australian, she met her ex and they lived together in the UK and had a child. After they separated (or before I'm not judging ) she met you, is now divorced and re-married and you decided to migrate to Australia.

As she was an Australian citizen she did not need a visa and nor did her son - his dad presumably signed the paperwork for his Australian passport??

So you have a partner visa and off you all went not considering the legal implications of removing your step son from the UK and if her partner didn't object i can understand why though it was rather naive (but I guess you realise that now!)

The Law in brief

Permission is needed from the court to take a child out of the UK in the following situations:

• Where the child is a ward of court;

• Where there is a residence order in force and removal will be for more than a month, arranged by the person holding the residence order, or everyone with parental responsibility consents, or permission was granted at the time of making the order;

• Where removal would constitute a criminal offence under the Child Abduction Act 1984. [10]

In other words, if each parent shares parental responsibility, both must agree to the removal. In addition, leaving aside the possibility of any criminal sanction, the author would advise any parent who wishes to take a child out of the jurisdiction to seek the written consent of the other parent or carer whether or not they have parental reponsibility. Child abduction sanctions (ie orders for immediate return to the home jurisdiction) are increasingly widely accepted in many countries. The UK courts have a number of orders at their disposal to stop removal if the other parent learns of the intention. UK courts will also take a dim view of unilateral removal and this can cause untold damage to the main carer's case in the long run, including their claim to maintain their position as main carer.

http://www.familylawweek.co.uk/site.aspx?i=ed878

I am assuming you moved from England or Wales as family law is different in Scotland

He did also signed consent forms for his Australian passport. And citizenship.

He did also signed consent forms for his Australian passport. And citizenship.

That totally goes in your favour but ultimately he does have to give permission for his son to be removed from jurisdiction, just a shame you did not get that at the time but he may back away from going to court now or you may fight it and win - not a great start to your new life though and awful for your son.

Find yourself a good solicitor experienced in migration cases now and the best of luck.

In currently going through the C100 Removal from Jurisdiction process, it's cost me about £250 so far without any solicitor presence so far, we've had two hearings, third is 4th Feb. The whole process so far has taken about 5 months.

He did also signed consent forms for his Australian passport. And citizenship.

That means absolutely nothing. All that means is that they have the right to enter and live in Australia, which they might want to do when they're older.

As others have said, the bottom line is that you have removed the children from the UK illegally. You didn't do it deliberately but the law won't care about that, unfortunately.

Yes, unfortunately everyone is correct.

Please let us know how you get on and good luck.

What evidence do you have that he gave permission for child to leave?

If he wishes to make an application under the Hague Convention he better have some money in his pocket as it will cost him lots of dosh!

How old is your child? Do they want to be in Australia? What relationship do they have with dad? What contact have you agreed going forward?

It matters not that your child is an Australian citizen, the Hague convention covers children that have been unlawfully removed from a country. Certain countries sign up to it and are covered by the rules. However your child is now habitually resident in Australia.

If a child is removed from one country to another without permission it is “child abduction” under the Hague Convention if the following applies

1. The child has to be habitually resident in the country from where it is taken. Therefore returning from holiday to the country of habitual residence is not abduction. You may well be able to argue now that your child is habitually resident in Australia as he has settled into the country, he is in school etc.
   
2. The move has to be in breach of the other parents rights. This is debatable given that he appears to have given permission.
   

If you are in breach of the hague convention then the court will order child to be returned HOWEVER

Even if dad could satisfy these then you have defences to any application and the Court would not order a return of the child.

1. A year has passed.

2. If the dad agreed to the removal or retention either beforehand or afterwards. You have an argument here to say that he gave permission, keep your texts, emails anything at all that you have. Screen print and keep safe.

3. If “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This risk must arise out of the proposed return to the other country.

4. If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” If child is only 9 you may have a problem with this, depends on individual child.

I would write to him formally, set out the conversations you had - in detail and times and dates etc and confirm that he gave his permission. IF he is now changing mind you will seek to defend his application. Ask for details of his Solicitors.

Hope that helps

1. A year has passed.

 

But in this case only a month has passed. Essentially they have failed to return from holiday. The texts about the school could be crucial as they are the only evidence that the father knew and condoned plans to remain in Australia.