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Do I as mother automatically have right of care of children born out of wedlock? And how do I prove this to a German court?

38 replies

Nightynight · 13/06/2007 14:49

I am in shit, ex h has kidnapped 2 of my children. I am going through a German court to get Sorgerecht (right of care) and the lawyer wants to show that I had it in the UK. I believe that I had it automatically, because we were not married when the children were born, and ex never went to court after we split.
Is this correct? and if so, what law can she refer to?

Does anyone know of a similar case (of someone transferring right of care from UK to Germany, divorced or never married)? Lawyer says it would be easier if she could refer to other cases.

Sorry to ask on mn like this - I already have a lawyer in France and another in Germany, dont think I can cope with hiring a UK one as well to answer these questions.

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CarGirl · 13/06/2007 14:51

You alone would have had parental responsibility for your children if they were born before 2003 - I believe, the law changed in 2003 at some point and if the father was named on the birth certificate they then had shared parental responsibility too.

Not sure if this is 100% correct for your circumstances though....

berolina · 13/06/2007 14:52

oh NN

I think your belief is right. Am fairly certain, actually.
Do you not have SR at the moment, or is it joint?

Will email you later.

CarGirl · 13/06/2007 14:52

Has he not broken the hague convention by kidnapping them in the first place.

Nightynight · 13/06/2007 14:53

shit. dd2 was born nov 2003

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Nightynight · 13/06/2007 14:54

have statement of arrangements for eldest 2; nowt for youngest 2

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berolina · 13/06/2007 14:54

I can't imagine a German court would be unsympathetic to you, NN. Is it you who has Aufenthaltsbestimmungsrecht (distinct from SR, I think)?

CarGirl · 13/06/2007 14:54

quick google - changed 1st dec 2003!

Nightynight · 13/06/2007 14:54

double shit: dd2 was born in france.

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CarGirl · 13/06/2007 14:55

An important change for unmarried couples in England and Wales (Nov 2003)
Note: This does not apply to births registered before 1 December 2003.

the right to be responsible for your child

The law changed on 1 December 2003 to make it easier for unmarried fathers to get equal parental responsibility: all you have to do is for both parents to register the birth of your baby together.

Parental responsibility for your child gives you important legal rights as well as responsibilities. Without it, you don't have any right to be involved in decisions such as where they live, their education, religion or medical treatment. With parental responsibility, you are treated in law as the child's parent, and you take equal responsibility for bringing them up.

Unlike mothers and married fathers, if you are not married to your baby's mother you do not automatically have parental responsibility for them.

Before this change, you could only gain parental responsibility by later marrying the child's mother, signing an official agreement with the mother or getting a court order. You can still get responsibility in these ways - you might want to think about this if you have other children.
See also Amendments of The Children Act 1989

Those in Northern Ireland were lucky enough to have this law come into force on 17th July 2001, however those in Scotland are unfortunately still waiting.

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FNF recommends that unmarried fathers acquire Parental Responsibility (PR). The father will then have virtually the same rights in bringing up the child as enjoyed by married fathers. PR is automatic for married parents, even if divorced, and also for unmarried mothers. In 1994 32% of children in England were born to parents who were not married to each other at the time of birth. PR confers equal status on both parents. Schools, doctors, hospitals or clergymen should therefore continue to regard the non-residential parent as a parent and deal with him on an equal footing with the residential parent.

If you are married both you and your spouse will automatically have Parental Responsibility. You both share that responsibility until your children reach the age of 18 (unless ended by a Court Order). If you are an unmarried father you do not have Parental Responsibility automatically. However, you can obtain PR by registering a legally binding written agreement, subject to the mother's consent. If the mother refuses her consent then an unmarried father can seek Parental Responsibility by making an application to the Court.

Parental Responsibility is defined in the Children Act 1989 as:

"All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property."
Without PR unmarried fathers face many problems including the following:

you may be excluded as respondent in court applications which affect your child
e.g. contact by relatives, care applications by a Local Authority, adoption;
your child's surname may be changed without your consent;
appointment of a guardian in the event of the death of the parents.
Examples of shared responsibility were made by Wall J in the case A v A [2004] 1 FLR 1195 .

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How to obtain Parental Responsibility
The father can obtain PR by:-

Registering the birth together, with the mother (only applies to births registered after 1 December 2003);
Parental Responsibility Agreement. This is a legal document which the mother must sign. It must be witnessed and filed with the Principal Registry (0207 947 6936);
Parental Responsibility Order (PRO). The father can apply to the court for an order if the mother refuses to make a PR agreement;
Residence Order. This confers Parental Responsibility automatically;
Marriage to the child's mother.

ProfessorGrammaticus · 13/06/2007 14:55

Yes it depends when they were born. Think change was 1.12.03 but could be wrong. If before that or if later but DP not named on birth cert (and you haven't married since the birth or been to court or signed a PR agreement) then you are only parent with Parental Responsibility. You need to refer your lawyer to Children Act 1989.

Nightynight · 13/06/2007 14:55

not sure who has Aufenthaltsbestimmungsrecht

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Nightynight · 13/06/2007 14:55

imagine its me though

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CarGirl · 13/06/2007 14:56

where was her birth registered though - with british embassy at all?

berolina · 13/06/2007 14:56

As they live with you (they do all now, don't they?) then I think it's you.

ProfessorGrammaticus · 13/06/2007 14:56

Sorry cross posts

Nightynight · 13/06/2007 14:57

her birth cert is french, but her nationality is british

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CarGirl · 13/06/2007 14:58

have you lived back in the uk at all since then?

CarGirl · 13/06/2007 14:58

ask the british embassy what their stance is on it?

Nightynight · 13/06/2007 14:58

yes, she spent her first yeqr in the UK qnd 2nd in Frqnce:

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berolina · 13/06/2007 14:59

yup, think you need to involve the embassy.

Nightynight · 13/06/2007 14:59

I will tell my lawyer to refer to the Children Act 1989, many thanks

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Nightynight · 13/06/2007 15:00

embassy = chcolate teapot ime

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berolina · 13/06/2007 15:00

oh I've never had the need.

Will be in touch this eve. x

CarGirl · 13/06/2007 15:00

well it would seem that under British Law he has no parental responsibility for your children what so ever. Where were you living when he kidnapped them?

Twiglett · 13/06/2007 15:02

utmost sympathy nightynight, wish I could be of help but no nothing of any use. But you have my thoughts.

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