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.
A post in an online forum for Germans in London recently asked how to get the EU-Form after a divorce in England which the German authorities require. The poster was puzzled, as were the courts. Most family courts do not know about this, but can find out and will get the form signed by a judge and sealed if you fill it in.
The EU-Regulation about divorce jurisdiction and recognition, Regulation 2201/2003 has several forms in the Annexes, which – as the whole regulation – are of course available in all official EU languages. The idea is that you get a form sealed in one EU member state and anyone can then retrieve an empty form in their language, lay them side-by-side and check what each of the points say about the parties, date of divorce etc.
In England once you have a decree absolute, you will need to get the relevant form, which you can download and then send it to the family court where your divorce was pronounced and ask them to get it signed by a judge and sealed. I’d suggest to get at least 3 copies because you might need them for various official business. It is free and easy to get immediately after your divorce. It could be a lot more complicated when you need it 10 years later.