Custody of Thai Niece and UK Visas

[DannyDubai]

Hello

My wife is a 40 year Thai / British national, I am a Brit of the same age.

After investigations and assessments by the Thai department of social affairs, my wife has been awarded custody by the local provincial court of her 4 year old Thai niece. The mother was deemed unfit, unwilling and absent and, given the physical health of the child's Grandmother, the court has appointed full custody to my wife as she is the only available carer.

We had previously tried to adopt her via the UAE and Thai authorities. However, even given the local intervention of senior Thai embassy officials, it became clear that there is no mechanism for adoption in Islamic States and therefore the adoption was impossible, unless we returned to Thailand and took up local employment.

As she now has custody, granted 2 months ago, my local Dubai sponsor has secured a local UAE permanent residency for her with me as sponsor. I am currently asking the local Brit embassy to stamp a power of attorney letter stating my wife gives me full permission to care, manage and maintain all aspects of her Thai niece's wellbeing. This is just a local requirement.

She has been with us in Dubai for 6 weeks - previous to this she visited us in another in the Gulf (3 weeks) and in the UK (4 months). She also holds a 5 year UK multi entry visa. My wife has also spent several months in Thailand for the last few years assisting her mother (the child's Gran) in taking care of her.

I now have to return to the UK for family reasons and obviously need to obtain settlement for our niece as we are both Brits and my wife is her sole guardian. I do not have a job but I do hold considerable investments and cash to satisfy UKBA support requirements.

Thank you for reading so far.......

The question is how do we and what visa should we be seeking to obtain? I have asked in the UK at the local council and they have suggested (unofficially) that we bring her on the current visa and then ask the local authorities for help as they will not deport our niece. HOWEVER, the local council worker didn't know her arse from her elbow and that kind of action just seems all wrong to me!

Essentially, I seek your collective knowledge on what to do. The Brit embassy in Dubai has not responded to me and a recent letter to the UKBA has also gone unanswered. Any knowledge or even a lawyer contact would be a real help.

The situation is quite desperate as I do need to get back to the UK, fulltime, asap. Though obviously I am not prepared to split the family at such a tough time in the child's life - nor should I have to as we are both Brits and want to return.

Thanks

Danny

[DannyDubai]

I knew that would be a tough post........245 and no replies.

Does anyone have the contact details of a good UK based Family lawyer (with immigration expertise too)?

Thanks

[7by7]

First step; read SET7.18 How do adopted children qualify for settlement?

[DannyDubai]

Hi

Yes, I've read that. Unfortunately though, as I said in the OP, my wife has been granted custody. The child has not been adopted by us formally.

[Tony M]

You may find that you will have to prove that the child has lived with you for at least 12 months for the UKV&I to accept that there is a de facto adoption. This, from the guidance, sums it up, I think :

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

[DannyDubai]

You may find that you will have to prove that the child has lived with you for at least 12 months for the UKV&I to accept that there is a de facto adoption. This, from the guidance, sums it up, I think :

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

This is interesting, thank you.

I assume that as the British Gov recognises legal adoptions from Thailand (as part of the Hague convention), then it should recognise my wife being awarded custody by the Chonburi regional family court.

So, assuming that is the case, are you saying that we have to stay outside of the UK and Thailand ....with the child....for 12 months from the custody approval date before we can apply for her visa to the UK under a 'de facto adoption'? If so, what visa would we apply for?

I assume the court case will prove the 'legal formality' and just add to the fact that my wife has regularly been home to Thailand to care for her over the last 3 years.

Thanks again Tony M

[DannyDubai]

Aside, are any of the readers aware of any forum members who have gone down the 'de facto' route before?

Thank you.

[Tony M]

You may find that you will have to prove that the child has lived with you for at least 12 months for the UKV&I to accept that there is a de facto adoption. This, from the guidance, sums it up, I think :

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

This is interesting, thank you.

I assume that as the British Gov recognises legal adoptions from Thailand (as part of the Hague convention), then it should recognise my wife being awarded custody by the Chonburi regional family court.

So, assuming that is the case, are you saying that we have to stay outside of the UK and Thailand ....with the child....for 12 months from the custody approval date before we can apply for her visa to the UK under a 'de facto adoption'? If so, what visa would we apply for?

I assume the court case will prove the 'legal formality' and just add to the fact that my wife has regularly been home to Thailand to care for her over the last 3 years.

Thanks again Tony M

I have no idea whether "legal custody" equates to adoption or not. I would have thought that they are two different things, and if so, then you still have to either adopt legally ( for it to be recognised ), or fulfill the de facto adoption timeframe.

[steady]

We went down the 'defacto' route with our niece last year and I put all my efforts into proving sole responsibility and was successful. There is no need to have any legal documentation (although I'm sure that it would help), it's all about proving that you live as a family and the child has effectively been adopted. A defacto adoption does not have any legal meaning but if the UKBA accept that it has happened then you are home and dry!

Things like schooling receipts, medical insurance and recorded address (Tabien Baan), in our case along with our natural children's were submitted.

There is also a route whereby compelling reasons for the child to come with you can be considered.

I did lots of reading of all of the defacto regulations and somewhere on the UKBA website there is all of the guidance notes for the ECO which gave a good insight into what was required too. I just went through showing how I satisfied each requirement, sometimes one submission satisfied 2 or 3 aspects so I just explained that in my letter.

My application pack was almost 2 inches thick with things like photos, previous visitor visas, letters from my family saying how good earlier holidays were, address and telephone number of my niece's mum (and they did contact her), father's death certificate and anything which I though showed that we lived as a family.

Hopefully this can get your application started.

[7by7]

somewhere on the UKBA website there is all of the guidance notes for the ECO which gave a good insight into what was required too.

SET7.23 Consideration of de facto adoption

[DannyDubai]

You may find that you will have to prove that the child has lived with you for at least 12 months for the UKV&I to accept that there is a de facto adoption. This, from the guidance, sums it up, I think :

The onus to establish a de-facto adoption is on those who allege it. This will be very difficult to achieve where there is an absence of some legal formality or a long standing relationship.

This is interesting, thank you.

I assume that as the British Gov recognises legal adoptions from Thailand (as part of the Hague convention), then it should recognise my wife being awarded custody by the Chonburi regional family court.

So, assuming that is the case, are you saying that we have to stay outside of the UK and Thailand ....with the child....for 12 months from the custody approval date before we can apply for her visa to the UK under a 'de facto adoption'? If so, what visa would we apply for?

I assume the court case will prove the 'legal formality' and just add to the fact that my wife has regularly been home to Thailand to care for her over the last 3 years.

Thanks again Tony M

I have no idea whether "legal custody" equates to adoption or not. I would have thought that they are two different things, and if so, then you still have to either adopt legally ( for it to be recognised ), or fulfill the de facto adoption timeframe.

I don't think it does and its looking increasingly like the de facto route unless we can prove special circumstances. Other than wanting to come home, we cant so we are exiled for 12 months :-(

Tony, I believe from reading your posts, that you work at an agency.......do you happen to know any good UK family/immigration lawyers?

Thanks

[DannyDubai]

We went down the 'defacto' route with our niece last year and I put all my efforts into proving sole responsibility and was successful. There is no need to have any legal documentation (although I'm sure that it would help), it's all about proving that you live as a family and the child has effectively been adopted. A defacto adoption does not have any legal meaning but if the UKBA accept that it has happened then you are home and dry!

Things like schooling receipts, medical insurance and recorded address (Tabien Baan), in our case along with our natural children's were submitted.

There is also a route whereby compelling reasons for the child to come with you can be considered.

I did lots of reading of all of the defacto regulations and somewhere on the UKBA website there is all of the guidance notes for the ECO which gave a good insight into what was required too. I just went through showing how I satisfied each requirement, sometimes one submission satisfied 2 or 3 aspects so I just explained that in my letter.

My application pack was almost 2 inches thick with things like photos, previous visitor visas, letters from my family saying how good earlier holidays were, address and telephone number of my niece's mum (and they did contact her), father's death certificate and anything which I though showed that we lived as a family.

Hopefully this can get your application started.

Excellent post, thank you. Good to hear someone in this forum has done this.

A few questions for you.....how long had you all been living together before the application was submitted to the UKBA? The little one has been on our tabien baan for a few years since she ran into issues with her birth Ma so I will include that also when the time comes.

About the route of compelling reasons - do you have any links for that? I ask as we need to return home as my Ma's partner is sick and we need to be there to support them in their old age, I wonder if that would cut it?

Also, I don't suppose you did an index page for all of the docs you submitted and, if at all possible, would you be willing to post it up?

Its a great start, Steady, thank you. I'm glad it all worked out for you all.

Danny

[DannyDubai]

And was it a settlement visa you applied for? And did you do it at the same time as applying for her adoptive mum's?

Edited August 31, 2013 by DannyDubai

[steady]

I had no legal positives in our application - we had just sort of accepted responsibility for our niece, I would assume that because you have legal custody then that will count as a positive legally. However we could prove (well at least the UKBA accepted it) that we lived as a family for more than 12 months (about 2 years).

Reading your emails it seems to me that you could use the "compelling" aspect, I'm afraid that I don't remember the formal terminology or references, even though your timescales are less than the required amounts it seems that you do have good reasons for you application - but I'm only a layman, not an expert.

I should add that although the embassy (UKBA regulations) added that all ties should be broken between the mother and the child (our niece), when they did phone the mother ( as they will of any family member) they asked a loaded question of the mother about whether the mother wanted to keep in touch and, obviously, she said that she wanted to keep in touch (in the future) and it did not count against us. I took this to mean that the British Embassy has an understanding of the world it exists in (maybe I'm wrong) this part of the world??

Many forum members won't like to hear this but the Embassy were totally fair in our case. They applied common sense as I understand it, which was very refreshing after all the feedback I got from some of the forums I subscribed to. With that background I believe that if you start drafting a complete and truthful explanation of events, make sure that timescales are addressed, i.e. paying special attention to dates and reasons, with proof then there is no reason to think that you will be unsuccessful.

I'm sure that there is some way to contact personally which is beyond my limited capability, however I f you contact me then I'll happily forward anything which may be useful to you. However I must re-iterate that my 'selling point' was that we had lived together more than a year.

Hopefully I can add something to your application.

[DannyDubai]

Thank you, that's very kind of you. I will PM you my email contact and we can go from there. I appreciate the help.....we all do.

Danny