Court order to allow one parent to apply for foreign passport
One parent can apply for a British passport for a child
, but in many other countries both parents have to make the application. Often that includes personally coming to the appointment. For foreign parents living in the UK this can be a serious problem. I have had many such enquiries. Recently a mother contacted me (details anonymised):
My daughter is 6 years old and I am from Spain. The father has not been involved in her life for 5 years and I do not know where he is. The Spanish embassy
says he needs to come to make the application for the passport or I need a court order. Can you help?
Here is what you can do:
- Check if you can get a British passport instead without the other parent’s involvement. Your child may in fact be British already. Many people do not realise that. If the other parent is British, your child is probably also British. Even if you are both foreign, your child may be British or can be British depending on your immigration status. It is worth getting advice from a specialist immigration solicitor. This could be worthwhile, not only if you want to travel soon but also for your child’s ability to stay in the UK post Brexit or in their own right once they are an adult.
- The problem is that the English courts do not have a specific order in statute law that provides for this because it is not an issue for British nationals. However, specific issue orders can be made. Another problem is that the English courts have no power to direct a foreign state what to do. So the Spanish consulate may ignore an order by an English court telling it to issue a passport. Therefore, it is vital for the consulate to confirm what exactly the order should say, preferably providing a wording. Since this is unlikely to be the first time the consulate in London has come across this, they should really know what wording they have accepted in the past. If not, they should think about it and have a pre-printed wording to hand to parents. If they are unresponsive or just direct the parent to a solicitor, we can suggest a draft or alternative drafts for them to approve.
- As with any court proceedings, the party against whom you make an application has a right to be heard. Therefore, you must send a copy of your application to the court to the other parent. If, as in this case, you do not know where the father is because he has not been around for several years, the court will still expect you to try to find him. The court would only allow you to go on with the application without the other parent knowing about it if you have done everything that is reasonable to try to find the other parent without success and can show the court.
- It may be possible that you can make an application in your home country to the court for an order in relation to this issue. This may be straightforward and cheap and may even bind the consulate to act. The jurisdictional issue is perhaps a bit uncertain here: Generally in the EU the courts of the country where the child is habitually resident have the power to make decisions about the child. However, if one regards this as a decision about the sovereign powers of the state to issue passports, it may be that the courts of the home country have powers to deal with the issue. It is worth checking this with a lawyer in your home country.
Equal time between Parents
I frequently get asked how children
should share their time
between their parents. More parents agree or demand from the other that they have equal time. I have seen numerous variations of how that is done in practice, for example:
- One week with each parent.
- 3 days with each parent in turn, or 4 days with each parent in turn.
- Week days in turn with each parent.
- Complicated schedules where over a two or three week period weekdays and weekends are evened out but there are frequent changes.
you agree must work for the children and must be practical depending on your work schedules. So alternate weekends make little sense to a parent who has to work every third weekend for example.
None of the above solutions seems satisfactory to me. A week with each parent means a child has to take all of their belongings and school kit with them each week and does not see the other parent for a long time. This may work where parents are still close and live close by and a child can nip over to the other house to get some stuff they may have forgotten, but could be a strain in other cases. All other suggestions seem very disruptive with children not knowing whether they are coming or going.
What seems to work for a lot of families, however, (assuming both parents work regular office hours or something close to that) is this system:
- Alternate weekends from Friday to either Sunday night or Monday to school/nursery. If this is to Monday that would be 3 nights in 14.
- The same weekdays with each parent in one chunk, i.e. Mondays and Tuesday with one and Wednesdays and Thursdays with the other parent. This means 2 nights a week or 4 nights a fortnight. Together with the weekends those are 7 nights a fortnight and exactly equal.
- Equal division of holidays.
The advantages of this system are:
- Weekends are alternating so parents can actually make plans and go away with the children overnight if they want, say to visit family or go to the seaside etc. Or they could just have a lie-in/pyjama morning lounging around of course.
- Most children have some after-school activities (sports or music lessons etc) and with this system the same activity will be with the same parent, e.g. “mum will always take me to football training on Tuesdays”. This also applies to the school timetable.
- Children seem to be able to remember which parent they have been with each weekend, so alternating weekends are a system they can follow. They also seem to be able to remember days of the week and so this system is something they can follow without having to consult a calendar or having an adult tell them. They can make plans, such as inviting a friend around to play (or for revision) Thursday next week without having to think where that would be or who they would need to ask.
- There are only two handovers each week and they can, if necessary be through the school or nursery so parents do not have to meet, which can help if this has been a problem in the past.
- A child will spend at most 2 nights plus a weekend (5 nights) with one parent, so is not away from the other for longer than that.
So it’s a system that’s easy to follow for children and allows whole weekends with each parent.
Even in cases where there is no insistence on equal division, this system can work in a modified form, i.e.
- Alternate weekends from Friday to Sunday night with each parent
- Thursday night with one parent, the rest with the other.
This means that each alternate weekend the child is with the other parent from Thursday to Sunday night. This system could later move to the one I described above in a way that seems very natural for the child.
Other Parent Messing About on Child Contact
I have had several callers yesterday with essentially the same issue: the other parent is not agreeing to or not sticking to a clear schedule for time they spend with the child
. In those cases I can either act for the parent
, take detailed instructions and then correspond, all of which costs you money; or I can give generic advice. So I thought I would set out the basic generic advice here for everyone to read.
Surrogacy and Parental Order after Separation
A cohabiting couple had a child through surrogacy but separated during the pregnancy and the intended father no longer wanted to apply for a parental order.
In a recent case, anonymised as M v F & SM (Human Fertilisation and Embryology Act 2008)  EWHC 2176 (Fam
), a cohabiting
different-sex couple where the woman could not carry the child found a friend to be their surrogate
. Both the intended mother and the intended father were the genetic parents. However, during the pregnancy the couple separated and the intended father no longer wanted anything to do with the child and did not join the intended mother in the application for the parental order
Breastfeeding for Co-Mothers
I have over the years had enquiries from several lesbian couples
who were planning to attempt to conceive both at the same time to have children
. One reason given was that they both wanted a close physical bond with a child. While most people who have had twins will say that the first three years are extremely hard, that is one choice for two women in a relationship to experience a close physical mother-child relationship.
Another way, which I had not thought of until I came across Breastfeeding Without Birthing
by Alyssa Schnell, is for the co-mother (the mother who did not birth the child) in a same-sex female couple to co-nurse, whether or not she has a (full) milk supply.