Does The Grandparents Have Legal Custody?

[Spyda]

My Thai sister-in-law has a 9 year old child from her first marriage to a Thai man who later died. The child lives with the grandparents in Thailand and they have refused to sign the visa application for her daughter to live in the UK. My sister-in-law has been in the UK for 3 years and has been married to my British brother for 4 years.

Does my sister-in-law need their signatures on the form or can she apply as the mother?

[7by7]

I'm not sure about Thai law, but as far as the UK immigration rules are concerned that the father is dead is enough to give the mother custody; provided she can produce his death certificate. Unless the grandparents have a custody order of some sort issued by an ampur or court.

However, I would certainly advise against her simply taking the child away from the grandparents, and suggest that she contacts a lawyer in Thailand for advice on this.

For a UK settlement application, having custody is not enough, she will also need to show that she has been exercising sole responsibility.

From Settlement; Children

SET7.8 What is sole responsibility?

A sponsoring parent (see SET7.2) must be able to show that he/she has been solely responsible for exercising parental care over the child for a substantial period.

If the sponsoring parent and child are separated, the child will normally be

expected to have been in the care of the sponsoring parent's relatives rather than the relatives of the other parent. An application should normally be refused if the child has been in the care of the other parent's relatives and the other parent lives nearby and takes an active interest in the child's welfare.

The following factors should be considered in assessing sole responsibility:

Are the parents married / in a civil partnership?

If the parents' marriage / civil partnership is dissolved, which parent was awarded legal custody, which includes assumption of responsibility for the child?

Where there is a custody order the ECO should take care to ensure that the issue of a settlement entry clearance to the child will not contravene the terms of the custody order. Annex 1 contains a list of those countries whose custody orders can be recognised as valid in UK.

Does the marriage / civil partnership subsist, but the parents do not live together?

If the sponsoring parent migrated to the UK, how long has the sponsoring parent been separated from the child?

If the sponsoring parent migrated to the UK, what were the arrangements for the care of the child before and after the sponsoring parent migrated?

If the sponsoring parent migrated to the UK, what has been/what is the sponsoring parent's relationship with the child?

Has the sponsoring parent consistently supported the child, either by:

direct personal care ; or by regular and substantial financial remittances?

By whom, and in what proportions, is the cost of the child's maintenance borne?

Who takes the important decisions about the child's upbringing, for example where the child lives, the choice of school, religious practice etc?

[the scouser]

The mother can sign the visa application.

Does the mother have indefinite leave to remain in the UK? If so, and the child's father is demonstrably dead, then sole responsibility does not have to be shown.

Scouse.

[7by7]

Does the mother have indefinite leave to remain in the UK? If so, and the child's father is demonstrably dead, then sole responsibility does not have to be shown.

You're the professional, Scouse, but as the child apparently has been in the care of the parental grandparents for at least the last 3 years, possibly longer, are you sure?

Don't want to doubt you, just want to make sure.

[the scouser]

I think we've previously had this discussion on another forum.

Anyway, para 297 of the Immigration Rules states inter alia:-

297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:

(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:

(a) both parents are present and settled in the United Kingdom; or

( both parents are being admitted on the same occasion for settlement; or

© one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or

(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; .....

As can be seen, of the foregoing criteria, only one needs to be met. If the child in question satisfies (d), then (e) is redundant.

Scouse.

[Spyda]

Thanks for the info, I'll pass it on.

[7by7]

I think we've previously had this discussion on another forum.

If we have, then it has obviously slipped my mind (senility setting in?)

Thanks for the clarification.

[Mario2008]

The mother now problably has sole custody, unless there was a hearing and the court awarded the grandparents custody. That seems highly unlikely.

Under Thai law the person who holds custody determines the place where the child resides, which could be the grandparents. Of course she can also change that and she can demend the child from any one who is holding her. With the help of the police if need be.

At the amphur one can ask for a document that states who has custody over the child. She might need this docuemnt if she wants to apply for a Thai passport for the child.