taffordbark Posted February 10, 2008 Share Posted February 10, 2008 My wife and myself have been foster carers in the U. K for the past ten years. Currently we foster two sisters who have been placed long term with us, they have lived with us for the past 7 and a half years or so and are currently subject to a long term care order, there is no prospect of them ever returning to their birth family. Recently we appointed an emigration agent to explore the possibility of us emigrating to Adelaide, obviously because the girls have been with us so long we would wish them to come with us,,we have always maintained however that we would continue to support contact with the birth family, be it distance or a once a year face to face contact. This is all happening with the full support, agreement and funding by the Social Service department we are with. We are currently in court in an effort to resolve certain issues regarding the birth families consent and would need to know whether, in order to obtain a visa for the children would we need to have a full adoption order or would a special guardianship order along with a statuary- declaration from the birth family or the courts be sufficient. We would appreciate any legal information that you could provide to us in order to present to our Solicitors and the Judge who is involved with this case at Manchester Courts. Thank you for your time and co-operation with this matter. kind regards Martin Roantree Link to comment Share on other sites More sharing options...
Guest kdal Posted February 10, 2008 Share Posted February 10, 2008 Hi, We were in a similar position a while ago only the other way around the child came from Aus to live with us in the UK. The parents were asked to sign an agreement for the child to come to the UK and for us to be legal guardians, however if the parents refused to do this then the child was to become 'order of court' and the Australian equivalent of our social services had thought it was to be in the best interest of the child to be in our care rather than to be put into a childrens home, the child was then sent to us here in the Uk and Australia paid for her flight. Maybe a little bit of a different story but I think you will find that Social Services (or the powers to be), will look at what is in the childrens best interest, and if they are happy and settled with you then it would be a letter from the parents if not the courts will take charge. Sorry cant help with the Visa question though as the child that came to us was still a British Citizen, you would probably need to add the children to your Visa application. I hope someone on here can help you more Wishing you luck and keep us updated on how you get on Regards Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 My wife and myself have been foster carers in the U. K for the past ten years. Currently we foster two sisters who have been placed long term with us, they have lived with us for the past 7 and a half years or so and are currently subject to a long term care order, there is no prospect of them ever returning to their birth family. Recently we appointed an emigration agent to explore the possibility of us emigrating to Adelaide, obviously because the girls have been with us so long we would wish them to come with us,,we have always maintained however that we would continue to support contact with the birth family, be it distance or a once a year face to face contact. This is all happening with the full support, agreement and funding by the Social Service department we are with. We are currently in court in an effort to resolve certain issues regarding the birth families consent and would need to know whether, in order to obtain a visa for the children would we need to have a full adoption order or would a special guardianship order along with a statuary- declaration from the birth family or the courts be sufficient. We would appreciate any legal information that you could provide to us in order to present to our Solicitors and the Judge who is involved with this case at Manchester Courts. Thank you for your time and co-operation with this matter. kind regards Martin Roantree Hi Martin I did some research into this for you last night. I know what I am trying to say. The difficulty is explaining it to somebody else! Would you be able to adopt the children legally in accordance with English Law? If you can, then the adopted children will automatically become "dependent children" for the purposes of Australian Immigration Law, meaning that no further legal debate would be needed and the visa application would be straightforward. If you could start by answering this question, please, I may be able to help further. Best wishes Gill Link to comment Share on other sites More sharing options...
taffordbark Posted February 11, 2008 Author Share Posted February 11, 2008 We have been asked to explore if the option of special guardianship would allow us to take the children on our visas - special guardianship giving us shared parental responsibility .................obviously with written legal consent from the birth parent to take them to Australia. The reason for the questions over special guardianship is that it is deemed to be more negotiable with the birth parent as apposed to adoption which she is looking at being too final for her to accept. The information has been asked for also by the Judge involved in the case. We are very aware that this is an unusual situation/request - and are presently tryint to find out what we can from the fostering network in Aus. Any snippet of info would be greatly appreciated. Many thanks for your time and interest. Link to comment Share on other sites More sharing options...
Guest Jez0207 Posted February 11, 2008 Share Posted February 11, 2008 Hi. i would be interested to know if the Special Guardianship order allows you to take the children abroad. If you can take the children legally through a SG (special guardianship) order or the Adoption Order then I would say that it is really a matter of consideration of what is best for the children (primarily) and yourselves as carers. You can apply for either without the consent of Social Services but obviously it is much easier if you are working together. # If the children are old enough to give their views to court then this will be a big consideration. An adoption order effectively severs all ties with the birth family (inheritance rights, etc) and so you would not need permission to take the children out of the country. As you say, with a SG order the birth parents still retain parental responsibility. If the children still have a relationship with birth relatives then a SG order may be the right route. As special guardianship orders are relatively new even the legal bods are still getting their heads around it. Good luck whatever you decide, Jez Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 Hello Jez Welcome to Poms in Oz. The Australian Migration Regulations 1994 (accessible via ComLaw) state that a "dependent child" in a visa application must be the natural, adopted or step-child [of the main visa-applicant.] S1.04 of the Regs defines adoption as follows: 1.04 Adoption (1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under: (a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or (b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or © other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption. (2) For the purposes of paragraph (1) ©, arrangements are taken to be in the nature of adoption if: (a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and (b) the child‑parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and © the Minister is satisfied that: (i) formal adoption of the kind referred to in paragraph (1) (b): (A) was not available under the law of the place where the arrangements were made; or (B) was not reasonably practicable in the circumstances; and (ii) the arrangements have not been contrived to circumvent Australian migration requirements. Next post follows Gill Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 For SG to succeed within the visa-framework, the Minister must be convinced that S1.04 (2) © (i) (B) and (ii) are satisfied, it seems to me. Would you agree? Here is the link to the Regs - Volume 1 is the one you want for the moment. ComLaw Management - Series- Migration Regulations 1994 Somebody needs to have a very close look at the PAMs and at the case-law (accessible via Austlii) I reckon. Cheers Gill Link to comment Share on other sites More sharing options...
ali Posted February 11, 2008 Share Posted February 11, 2008 I'm just thinking aloud here.... If a special guardianship was passed in the UK - would it be recognised in Aus if the birth parent decided that they wanted their child to return to UK? Ali Link to comment Share on other sites More sharing options...
Guest kdal Posted February 11, 2008 Share Posted February 11, 2008 I'm just thinking aloud here.... If a special guardianship was passed in the UK - would it be recognised in Aus if the birth parent decided that they wanted their child to return to UK? Ali .... Do you know what Ali, it is such a delicate and complicated subject. To be perfectly honest I do not think that really the powers to be even know the answers to the questions!! We personally found that Australia and England worked in different ways and they would both say 'not sure what Uk/Aus laws are'. Really there should be something drawn up that is International and that the two countries should communicate alot better than I have found them to. When a child is of a certain age then they are listened to and they would not have to return if they did not want to, but of course when they are very young it is much more complicated. I hope it works out well for the children in this case, Kimx Link to comment Share on other sites More sharing options...
Guest Jez0207 Posted February 11, 2008 Share Posted February 11, 2008 Hi Gill. Thanks for quick response. From reading the information you posted I would agree. Likely to be a complicated process for a while. Jez Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 Hi Jez I agree. Special Guardianship may not be an impossible route but it is certainly one that would cause horrendous complexity and difficulty, I reckon. The idea that Adoption is "not reasonably practicable in the circumstances" gives me gyp. Where are they coming from with this notion? Right now, it probably isn't "reasonably practicable" to try to obtain an Adoption Order in Iraq. For the minute, the English Court appears to think that Adoption may not be "reasonably practicable" because it may not be the option which is inthe best interests of the child. Is this vague statement supposed to cover both possible scenarios? For the moment, my own instinct is to say, "Let's looks at the MSIs, the PAMs and the case-law and see whether we can suss out where this vague provision is coming from." Australian Law does "vague" like a native in my observation! Cheers Gill Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 I'm just thinking aloud here.... If a special guardianship was passed in the UK - would it be recognised in Aus if the birth parent decided that they wanted their child to return to UK? Ali Hi Ali Spot on. It is one of the many issues that would have to be considered and one of the most thorny, I reckon, unless the natural parents can be persuaded to consent to the children being taken to Oz. Gill Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 .... Do you know what Ali, it is such a delicate and complicated subject. To be perfectly honest I do not think that really the powers to be even know the answers to the questions!! We personally found that Australia and England worked in different ways and they would both say 'not sure what Uk/Aus laws are'. Really there should be something drawn up that is International and that the two countries should communicate alot better than I have found them to. When a child is of a certain age then they are listened to and they would not have to return if they did not want to, but of course when they are very young it is much more complicated. I hope it works out well for the children in this case, Kimx Hi Kim Spot on as well. DIAC would actually have to make law on the hoof as they go along with this one. Known formally as, "Taking A View." They would actually bend over backwards to try to find a way to agree with the English court, I reckon, and in Policy terms they probably do have enough flexibility to do it, as long as the legislation itself isn't too rigid. We shall see but we defo WON'T give up, I reckon. Cheers Gill Link to comment Share on other sites More sharing options...
taffordbark Posted February 11, 2008 Author Share Posted February 11, 2008 At the moment we are in a position where we are getting as much information together that we can for our own purposes. Our case is being supported by social services who the children are under and they have fully supported what we wish to achieve, stating it is in the best interests of the children to stay with us and if we are going to live in Australia then obviously it is then in their best interest for them to go with us. The birth Mother is not happy to allow us to adopt the children as she feels this is too final and the idea of no parental responsibility at this moment is non negotiable with her. However, our solicitor and the solicitor that the children have feels special guardianship would be a better negotiating tool and we really need to know if children on a special guardianship which thus gives us shared parental responsibility with the birth mother (much like a divorce case really) would allow us to take them on our visa with a legal consent document signed by the birth parent allowing us to take them out of the jurisdiction. Or is our only option one of adoption? We have had mixed information on this from our agent - firstly saying a special guardianship would be fine and then the only way would be adoption. It all seems so complicated at the moment - have you ever in your recollection had children who are in foster care entering Australia and under what kind of conditions??? Any information would be great as we can then present this to our Solicitor and the Judge is then seen to see that we are making plans and also serious about our ambition to move to Australia along with other family members. We do appreciate your time and knowledge - and thank you for your interest. Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted February 11, 2008 Share Posted February 11, 2008 Hi Martin I have sent you a private messsage with some info that might help. Please look towards the top right on your screen. Refresh the page if you need to. You should see aflashingicon in the top right of the screen. Cheers Gill Link to comment Share on other sites More sharing options...
taffordbark Posted May 6, 2009 Author Share Posted May 6, 2009 I know this is an ols post but for those of you who are interested and want to know the out come,,,here goes. The Judge in the case advised the solicitors in may last year to explore the possibilities of special guardiannship and how it would sit with the Australian authorities. After 6 months of legal wrangling,too- ing and frow- ing with all the legal bods both in the Uk and aus it was decided that Special guardianship would leave the childrens futures uncertain when they reached 18 years of age,therefore the only option would be adoption. In the first instance the Judge was unhappy to allow an adoption order because under English law ,adoption canot be used as a device for another purpose,which is fair comment,however because the children were of an age where they were considered to be ' Gillic Competent' he had no choice but to take their views into consideration. The birth parent was still opposed to any adoption order at this point , however she was not prepared to take the childrens views into consideration because she was uder the impression rightly or wrongly that 'Gillic Competence' was not a matter for the court to decide ,but a question of instinct and loyalty. As you can imagine the whole scenario was an absolute nightmare for my wife and I,as all trough the two year process we had to be deemed to be impartial,,,a farcical situation in itself as after all we had decided to migrate but only on the provision that we could take the two ' Foster children ' that we had grown to love as our own ( apparently and according to social serices,the authority I would not dare to name) deemed ' love of foster children to be somewhat bizzare, as most carers were only in it for the money!!!!!! After much debate the birth mother relented and although she did not agree to the adoption order,it was put to her that it would be in her best interest not to oppose it,which to her credit she did not. We were over the moon on the 17th of December last year to hear the Judge confirm that we were now officialy the legal parents of the two girls who we love so much,and welcomed them with open arms into our family ,along with our own children. All along we have maintained the importance of contact with birth family ,we have tried to work with the birth family to the best of our ability and have set out a plan for contact in the event we eventualy end up in Australia. I say 'eventualy'because at thispresent time we are curently battling to reverse a decission of a possible refusal of visa r egarding our son who has a neurological condition'Aspergers Syndome' we are at present in the appeals process regarding his medical files which were presented to the MOC. Watch this space for more information Link to comment Share on other sites More sharing options...
ali Posted May 6, 2009 Share Posted May 6, 2009 Thank you so much for the update ... what a brilliant outcome for you as a family to be able to welcome the girls 'officially' into your family. It doesn't surprise me what the social worker said, but I have met more foster parents like yourself who have a genuine affection for the children placed in their care rather than being just 'in it for the money' ... I wish you luck in your visa appeal and hope that there is a good outcome for you and your newly extended family All the best Ali Link to comment Share on other sites More sharing options...
Guest Gollywobbler Posted May 7, 2009 Share Posted May 7, 2009 Hi Martin Please see your PM box and/or your ordinary e-mail inbox urgently. Best wishes Gill Link to comment Share on other sites More sharing options...
taffordbark Posted December 26, 2009 Author Share Posted December 26, 2009 We finaly landed in SA in Adelaide on the 26th of june this year,we have spent 6 months settling in and are slowly getting accustomed to the quirks of the locals.The children have all settled well into school,our eldest daughter joined us in september and we are all very happy together.Thanks so much to all of you who provided us with alternative options,especialy Gill and we hope you all have a peacefull 2010! Link to comment Share on other sites More sharing options...
Guest siamsusie Posted December 26, 2009 Share Posted December 26, 2009 A beautiful ending Tafford, I wish you and you family many wonderful years in Adelaide, you sound a gorgeous family and thank you for your update. Happy New Year to you all Love Susie xx Link to comment Share on other sites More sharing options...
Guest minimin Posted May 20, 2011 Share Posted May 20, 2011 I know this is an old post, but i wandered whether anyone knows if adoption is still the only option for bringing a child in your care (but not birth child) into Australia? My niece lives with under a Kinship foster care arrangement, and social care have said they would like me to bring her with me when we move over later this year under a special guardianship order. her mother is consenting, but adoption is simply not an option in our case. Link to comment Share on other sites More sharing options...
taffordbark Posted May 23, 2011 Author Share Posted May 23, 2011 Sorry for the delay in replying. As far as I am aware when we started the process of trying to emigrate with foster children,it had never been asked of or done before. If you read through the various posts we put on a couple of years ago ,you will see that Australia will only recognise an adoption order as it means you have full parental responsibility,we went down the legal route of trying special guardianship, getting advice from the legal bods in oz,and waiting a hell of a long time while the australian authorities studied the case and sought where it sat with the laws of the land. So adotion is the only option I am afraid,If you need to look at the legalities,pm me and I will pass the details of the solicitors who dealt with this on our behalf. Link to comment Share on other sites More sharing options...
madgen Posted May 23, 2011 Share Posted May 23, 2011 The only way you can take these 2 girls to Oz is through adoption. Until the children are adopted, their mother retains PR for them (shared with the local authority). A special guardianship order would give you similar rights to adoption, but you cannot emmigrate with the childen and again their mother retains PR. Link to comment Share on other sites More sharing options...
taffordbark Posted May 24, 2011 Author Share Posted May 24, 2011 The only way you can take these 2 girls to Oz is through adoption. Until the children are adopted, their mother retains PR for them (shared with the local authority). A special guardianship order would give you similar rights to adoption, but you cannot emmigrate with the childen and again their mother retains PR. Yes thats exactly right,also special guardianship orders leaves their legal status uncertain when they turn 18 , the other thing that also has to be considered is legaly, adoption cannot be used as a device to fulfill another purpose, i.e you cannot adopt just because you want to move to australia. Link to comment Share on other sites More sharing options...
_shel Posted May 24, 2011 Share Posted May 24, 2011 Yes thats exactly right,also special guardianship orders leaves their legal status uncertain when they turn 18 , the other thing that also has to be considered is legaly, adoption cannot be used as a device to fulfill another purpose, i.e you cannot adopt just because you want to move to australia. Indeed, that would be be closely examined by the Court, Judge & CAFCASS during the proceedings to ensure proper intentions and that the best interests of the child are met. Link to comment Share on other sites More sharing options...
Recommended Posts
Archived
This topic is now archived and is closed to further replies.