Hi Denise
Firstly, I would like to point out that I am not legally trained so run this past a Solicitor who can confirm the dates etc.
I do, however, have a lot of experience with Australian Migration Law and with the so called "custody Criteria" being 4015 -4018 as posted by Lace earlier. I can also confirm that more often than not, the case officer is not sure of their own regulations and procedures, never mind the situation in the applicant's country. So quite often one ends up directing the case officer down the correct pathway.
I will try and give some practical advice as this thread may be getting a bit confusing.
My first comment would be to state that I believe, under English-Welsh Law (not sure about them Scots) that for children born prior to December 2003, Regardless of whether the biological father is named on the birth certificate or not, if the paremts were not married at th time of birth, the biological father has no rights to the child unless he has applied to the Court and been granted parental responsibility.
That date is from my memory, Lace mentions 2002 but either way, the age of your children will be prior to either date.
You mention that he has access to your children but unless this has been formalised by the Court, then he has no legal rights and has no legal right to have any say on where the boys are to live.
So, if this is the case, you will need to prove, to the best of your ability that:
1 You were not married to the father at the time of each of your children's birth - Their birth certificates will probably make this obvious and a Statutory declaration to that effect will be accepted.
2 You will also need to state in the Statutory Declaration that to the best of your knowledge, their father has not applied for parental responsibility.
A letter from a solicitor confirming the Law in the UK that a father in such circumstances ahs no rights would also be required.
The case officer should then accept this as meeting the criteria unless it is thought that grant of the visa may not be in the children's interest. Case officers are not encouraged to seek information on this criterion unless there is strong reason to do so from the information already included with the application. It is possible that if the case officer knows that the father visits the children every week, ie has informal access, the case officer could then request that permission from the father be sought.
I would disagree with Westly's statement that there are only 2 safe ways to proceed in you case. His first suggestion may indeed trigger a person with no legal rights to immediately seek such legal rights through the Courts and the second way, a wild goose chase that the case officer often sends you on - as you can not obtain a Court Order to confirm the legal status quo - Court orders would be to vary the legal status quo.
Tony
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