Nilah Ulhaq from our Family Law Team and Amna Ashraf from our Immigration Team look at some common queries which may arise following the breakdown of a parental relationship.
Who has the right to make decisions relating to a child?
Anyone who has parental rights and responsibilities (PR&Rs) can make decisions relating to a child. Ordinarily, that will be the child’s parents. However, it is possible for someone else with an interest to apply for PR&Rs, for example a grandparent or older sibling.
The person who gives birth to the child will automatically receive PR&Rs. The father of a child also automatically receives PR&Rs if they are named on the birth certificate (if the birth was registered on or after 4 May 2006), or if they are married to the child’s mother at the time of birth or any time after.
PR&Rs remain in place after a couple have separated or divorced.
Does getting a divorce impact the migrant if they are on a spousal visa?
Yes. Termination of their relationship will be a material change in circumstances which renders the migrant unable to maintain their spousal visa. When brought to the attention of Home Office, the visa will be curtailed (effectively cut short giving the migrant an earlier end date). The migrant would need to switch to a different visa, ideally before the present one expires. Where the couple have a child, the natural choice would be to switch to what is known as parent of a British child visa.
Which parent should a child live with?
In Scotland, there is no presumption that a child should live with one parent over the other. Ideally, parents should try to agree a care arrangement which is in the child’s best interests. A care arrangement can be agreed directly, through solicitors or with the help of a mediator. If parents cannot agree on a care arrangement then one parent can ask the court to decide. The court will make a decision based on a number of factors but the primary consideration is what is in the child’s best interests.
It is possible to have a shared care arrangement. Or, one parent can be the primary carer and the other parent will have contact with the child. Contact can be direct (in person) or indirect (e.g. video calls, texts or letters).
Does contact matter when switching to the parent of a British child visa?
Yes, the migrant must be able to prove that they’re taking an active role in their child’s upbringing and plan to continue after they apply. This includes direct contact in person either on a part-time or full-time basis, with or without overnight stays. Home Office will accept an arrangement which is arranged amicably between the parents or through the relevant court. The focus is on proving that there is direct contact which has taken place and there is consent from the primary carer allowing contact to continue.
Does it matter why the relationship has broken down?
For the migrant, the main question is whether there is domestic violence involved. If there is, they may be eligible to apply for indefinite leave to remain if they are able to prove that the relationship has broken down as a direct result of domestic violence. If it is broken down irrevocably for other reasons, switching to the parent route will be more appropriate.
Can I take my child away from the UK?
You can only take your child out with the UK if you have the consent of anyone else holding parental rights and responsibilities in respect of the child (usually the other parent), or if you have a court order allowing you to do so.
Can someone apply for a parent visa from outside the UK?
Yes this route is available both inside and outside the UK. For those applying from outside the UK, proving they have had direct contact with be a little difficult if they have not seen the child for a while. So they would need to show a consent letter from the parent in the UK or a court order granting them direct access. As a direct alternative to this, they can also show they have sole responsibility for the child.
Some other requirements they would have to prove is the ability to speak English and ability to maintain and accommodate themselves. If granted the visa will be valid for 33 months on a five-year route to settlement.
If your situation requires some legal input please get in touch and we’d be happy to talk it through.
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