Consent to Migrate and Best Interests of the Child for Subclass 101 in 2026

Plain-language guide · general information, not immigration advice

For a Child visa (subclass 101), a child under 18 can only be granted the visa if one of three things is true: they have the written consent of everyone who can legally decide where they live, the laws of their home country allow them to leave, or the move is consistent with any Australian child order about them. On top of that, the Australian Department of Home Affairs may refuse the visa if granting it would not be in the best interests of an applicant under 18. This is set out on the Department's Child visa (Subclass 101) page, as of the August 2026 version of that official page.

That is the whole test in two sentences, but each half has its own traps. The rest of this article walks through what each route actually requires, who has to sign, and what kinds of situations push a case into "best interests" territory. It is general information about published rules, not personalised advice for any one family — where your situation turns on a court order, a custody dispute or a child protection matter, the official text and a qualified professional's view on your specific facts are what count.

What does "consent to migrate" actually require?

The requirement bites only when the child is under 18 at the time of grant. It is not a form you tick; it is a condition the decision maker has to be satisfied about before the visa can be granted, and it sits alongside the rest of the subclass 101 criteria rather than replacing them.

The Department puts it as three alternatives, and satisfying any one of them is enough:

Route	What it means	What usually decides it
Written consent	Everyone who can legally decide where the child lives consents in writing	Who holds legal decision-making power, and whether the consent covers migration to Australia specifically
Home country law	The child's home country's laws allow the child to leave that country	The exit/permission rules of the country the child lives in
Australian child order	The move is consistent with any Australian child order about the child	Whether the order permits the child to live with, or be looked after by, the migrating parent

The three are independent. A family that cannot produce a clean signature from every decision-maker is not automatically refused — the question becomes whether one of the other two routes is available on the facts.

Who counts as someone who can legally decide where the child lives?

The official page says "everyone who can legally decide where they live," which is deliberately broader than "both biological parents." In practice it tracks whoever holds parental responsibility or custody under the relevant law, and the Department's own relationship rules show how varied that can be:

Biological and adopted children. The general dependency rule requires the child to be the biological, adopted or stepchild of an Australian citizen, eligible New Zealand citizen or Australian permanent visa holder. For adopted children, the adoption generally must have happened before the child turned 18, at a time when the adoptive parent was not yet an Australian citizen, permanent visa holder or eligible New Zealand citizen.
Stepchildren. A stepchild must be the child of the step-parent's former partner and be under 18. The step-parent must also have either an Australian parenting order in force saying the child is to live with and be looked after by them, or guardianship or custody under Australian law or the law of another country. That parenting-order or guardianship requirement is effectively the consent question for stepchildren — it establishes who is legally entitled to decide.
Cases involving an Australian child order. Where an Australian child order exists, the move has to be consistent with it, and the Attorney-General's Department maintains the registration arrangements for overseas child orders.

The Regulations layer underneath this is clause 101.226, which requires under-18 applicants to meet public interest criteria 4017 (parental consent) and 4018 (adoption and guardianship arrangements being lawful). Criterion 4017 of the Migration Regulations 1994, as published on the Federal Register of Legislation, requires written consent from every parent with legal custody, unless consent is unreasonable or not practicable. The Department's official page phrases the alternatives slightly differently, so where the two expressions diverge, the current Home Affairs page and the current legislative text are what govern — check both against the latest published version.

What if one parent cannot be reached, or refuses?

This is the question families ask most, and it is also the point where the Department's published guidance gives the least detail. The official page does not set out a procedure for a missing or refusing parent; it simply lists the three routes. Two of them matter here: the home-country-law route and the Australian-child-order route can each be satisfied without that parent's signature, provided the facts actually support them.

The "unreasonable or not practicable" wording in public interest criterion 4017 of the Migration Regulations 1994 is where a refusal-to-consent scenario is usually argued, but no form, threshold or evidence list for that argument is set out on the Department's Child visa (Subclass 101) page. Treat it as a legal question to be worked out against the current legislative wording rather than as a checklist, and assume the decision maker will want documentary proof of whatever is being asserted — attempts to contact the other party, the custody position under local law, or the terms of any order.

When can "not in the best interests of the child" lead to refusal?

The Department's wording is one line: "We might not grant this visa if it is not in the best interests of an applicant under 18." It is a discretionary safeguard, not a separate criterion with a published scoring system, and it applies on top of the consent requirement — meeting one route above does not immunise a case from it.

The situations that tend to pull a case into this assessment are recognisable from the surrounding rules:

The move would conflict with an Australian child order. If the order says something different from what the application proposes, the consent route fails and the best-interests question is live at the same time.
The custody or guardianship arrangement behind the application is not lawful. Criterion 4018 covers adoption and guardianship arrangements; an arrangement that does not comply with the relevant law undermines both consent and best interests.
Child protection concerns about the sponsor. Sponsorship must be approved before the visa can be granted, and the Department states it will refuse both the sponsorship and the visa application if the sponsor, or their spouse or de facto partner, has a pending registrable offence charge. Where there is a conviction, sponsorship can be approved only in very limited circumstances. The Department publishes separate material on measures for the protection of children, and its policy guidance describes child welfare alerts and referral of cases where child protection issues arise.
The child's own circumstances make migration unsuitable. The requirement is assessed for the individual applicant under 18, so factors personal to that child can be weighed, not just the paperwork around them.

Suppose an applicant is a 14-year-old whose Australian-citizen parent has a parenting order from a foreign court but no Australian child order, and the other parent has not been in contact for years. The consent question turns on whether the home country's law allows the child to leave, and the best-interests question turns on whether the care arrangement in Australia is actually settled and lawful. Both can be in play at once, and the second does not disappear because the first is answered.

How do these two tests fit with everything else in subclass 101?

Consent and best interests are additional hurdles for under-18 applicants; they do not replace the standard eligibility criteria. The child still has to be dependent on an Australian citizen, eligible New Zealand citizen or permanent visa holder; be under 18 (or, if older, studying full time up to 25, or over 18 with a disability); have no partner; be sponsored by an eligible parent or that parent's spouse or de facto partner, with the sponsorship approved; meet the health requirement; and, if aged 16 or over, meet the character requirement. Children aged 18 or over must also sign the Australian Values Statement.

Two practical consequences follow. First, an application can meet every documentary test and still fail on consent or best interests. Second, the under-18 criteria are assessed at decision time as well as at application time, so a change in custody arrangements while the case is being processed can change the answer.

What evidence supports a consent or custody claim?

The Department's Child visa (Subclass 101) page does not list a dedicated consent-to-migrate form. What it does list, for relationship and adoption evidence, includes:

a birth certificate
a marriage certificate
an adoption certificate, or certified copies of adoption papers or an adoption compliance certificate
a family status certificate or family book, if officially issued and maintained

Applications are made on paper using Form 47CH (Application for migration to Australia by a child) and Form 40CH (Sponsorship for a child to migrate to Australia), sent together to the Child and Other Family Processing Centre in Perth, with the application charge paid before posting. The forms must be completed in English, and the Department asks to be told if someone is acting on the child's behalf; where someone provides immigration assistance, the official page notes that person must be a registered migration agent, a legal practitioner, or an exempt person.

Will you be asked for more information before a refusal?

The Department's PAM3 policy guidance describes an information request step before an adverse decision: where evidence is thin — relationship proof, study evidence, financial dependency, or health and character issues — the decision maker is expected to give the applicant a chance to provide more, including a natural justice letter where the concern is something the applicant should respond to. It also describes DNA testing being offered where the relationship itself is not established.

For consent and best interests specifically, no equivalent procedure is set out on the Department's Child visa (Subclass 101) page. The safer assumption is the general one: if the custody position or the care arrangement is not clear from what was lodged, expect questions before a decision, and expect the answer to be judged against the child's circumstances at the time of decision rather than the time of lodgement.

Frequently Asked Questions

Do both parents always have to consent?

Not necessarily both parents — but everyone who can legally decide where the child lives does. If one parent does not hold that legal power, or if the move is permitted by the home country's law or consistent with an Australian child order, the written-consent route is not the only way through.

What counts as an Australian child order?

It is a child order made in Australia about the child, and the test is whether the proposed migration is consistent with it. The Attorney-General's Department handles the registration of overseas child orders, which is relevant when a foreign order is being relied on in Australia.

Is the consent requirement the same as the best interests test?

No. Consent is about who has legal authority to agree to the child migrating; best interests is a separate discretionary check on whether granting the visa serves that particular child. A case can pass one and fail the other.

Does this apply to children over 18?

The consent requirement applies to children younger than 18, and the best interests statement is framed around applicants under 18. Applicants aged 18 to 24 face a different set of conditions instead — full-time study, no full-time work, and financial dependence on the parent more than any other person.

Can a stepchild be granted without the other parent's consent?

A stepchild case turns on the step-parent's legal position: the child must be the child of the step-parent's former partner and under 18, and the step-parent must have an Australian parenting order in force, or guardianship or custody under Australian law or the law of another country. That order or guardianship is what establishes authority over where the child lives.

Will the fee be refunded if the visa is refused?

No. The Department states that the application fee is not refunded if the application is refused, and it also will not process an application until the application charge has been paid.