Subclass 838 and Children Under 18 in 2026: Consent Forms and Best Interests

Explains who must sign consent for an under-18 Subclass 838 applicant in 2026, and how Form 1229, court orders and Form 1257 fit.

Published: 8 October 2026

Consent is required for every applicant under 18 who is included in a Subclass 838 (Aged Dependent Relative) application, and the obligation attaches to each person who has a legal right to decide where the child lives and who is not in Australia with the child. That person completes either Form 1229 Consent form to grant an Australian visa to a child under the age of 18 years or a statutory declaration consenting to the child staying in Australia on this visa. If the child will not be staying with a relative or legal guardian, Form 1257 Undertaking declaration also has to be signed by the person they will stay with. This reflects the Department of Home Affairs official page Aged Dependent Relative visa (Subclass 838) — the "Gather your documents" steps and the "Best interests of the child" criterion — read with clause 838 of Schedule 2 to the Migration Regulations 1994.

This is general information about published criteria rather than advice on an individual case, and the official page and the current compilation of the regulations should be treated as authoritative.

Who has to sign consent for a child under 18?

Two conditions must be satisfied at the same time before a person's consent is needed. They must have a legal right to decide where the child lives, and they must not be in Australia with the child. If either limb is missing, that person is not covered by this requirement.

In practice this captures a parent or legal guardian living overseas, a step-parent with parental responsibility, and anyone else holding parental responsibility under a court order or an adoption. The test is the legal right to determine where the child lives, not biology alone, which is why the page asks for adoption papers or other court documents where they are relevant.

If more than one person meets both limbs — say two separated parents, each with parental responsibility, both still overseas — then each of them provides consent. One consent does not cover the others.

Form 1229 or a statutory declaration: which one applies?

The official page gives a choice between two documents from the same person, and the identity evidence to go with them. Both routes must come from the person who holds the legal right and is not in Australia with the child.

Document	Who completes it	What it must state	What goes with it
Form 1229 Consent form to grant an Australian visa to a child under the age of 18 years	Each person with a legal right to decide where the child lives who is not in Australia with the child	Consent to an Australian visa being granted to that child	An identity document showing the signatory's signature and photo, such as a passport or driver's licence; adoption papers or other court documents if applicable
Statutory declaration	Same group of people	Consent for the child to stay in Australia on this visa	Same identity evidence, plus adoption or court documents if applicable

There is no stated hierarchy between them. The practical difference is formality: Form 1229 is the department's own document, while a statutory declaration has its own execution requirements under the law of the place where it is made. Whichever is chosen, the attaching identity document matters — it must show both the signature and the photo of the person who completed it.

What if you cannot get the other parent's signature?

The official page lists two alternatives to consent for that person. Either show an Australian court order that allows the child to migrate to Australia, or show that the laws of the applicant's home country allow them to migrate.

Assume an applicant includes a dependent grandchild under 18 whose mother and father live overseas, and the mother refuses to sign Form 1229. Under the published rule, the application then has to rely on an Australian court order permitting the child to migrate, or on evidence about what the home country's law permits — the consent form cannot simply be left out.

These documents sit in the same evidential block as the consent forms, so the same inclusions apply: an identity document showing the signature and photo of the relevant person, and adoption or court documents where they are relevant.

When is Form 1257 required?

Form 1257 Undertaking declaration is triggered by care arrangements, not by consent. Provide it if the child is not staying with a relative or legal guardian in Australia, and the person they are staying with must sign it.

That obligation is separate from the consent requirement, so more than one document can be needed for the same child. Assume a child whose parents are overseas — and who therefore needs a consent form or court-order alternative — comes to Australia to live with a family friend rather than an aunt or legal guardian. Both the consent document and a Form 1257 signed by the friend are part of the file.

Why can a complete consent packet still fail?

Because consent evidence and the "best interests of the child" criterion are different tests. The eligibility page states plainly that the department will not grant this visa if doing so is not in the best interests of an applicant under 18. Handing over Form 1229 does not itself answer that question.

The Migration Regulations 1994 give the legal shape of it. Clause 838.225 requires a migrating family member who is under 18 to meet public interest criteria 4015 and 4016 at the time of decision, and clause 838.226 requires an applicant who is themselves under 18 to meet criteria 4017 and 4018. The Department of Home Affairs' Procedures Advice Manual (PAM3) treats this as an assessment of whether granting the visa would prejudice another person's rights in respect of the child's custody, guardianship or parental responsibility, read with section 5G of the Migration Act 1958 and the department's child safeguarding framework.

That explains why the two tracks can cross. Consent evidence speaks to who agreed to the migration; the statutory criteria speak to whether the grant is defensible given arrangements for the child. A missing consent document and a failed best interests assessment produce the same outcome through different routes.

Regulation compilations are updated over time, so the criteria should always be checked against their current form on the Federal Register of Legislation as well as the visa page.

What else does each under-18 dependant need?

Three categories of documents are listed for every dependant under 18 applying with the main applicant: identity documents, proof of the relationship with them such as a birth or marriage certificate, and character documents where they are applicable. Do not arrange police certificates until the department asks for them.

Age also determines which dependants can be included at all. A dependent child counts if they are under 18; or 18 or over but not yet 23 and dependent on the applicant or their partner; or over 23 and unable to earn a living because of physical or cognitive limitations while remaining dependent. The heavier dependency evidence — Form 47a Details of a child or other dependent family member aged 18 years or over, proof of the relationship, and proof of at least 12 months of financial dependency — belongs to the over-18 group, not to the under-18 one.

Putting the documents in order

List every person who has a legal right to decide where the child lives.
Cross out anyone who is in Australia with the child.
Ask each remaining person for Form 1229 or a statutory declaration.
Fall back to an Australian court order or home-country law where consent is refused.
Attach an identity document showing each signatory's signature and photo.
Add adoption or court documents where they exist.
Add Form 1257 signed by the carer if the child is not staying with a relative or legal guardian.
Check the arrangement against the best interests criterion before lodging.

A Subclass 838 application itself is lodged on paper on Form 47OF, with Form 40 completed by the sponsor, and the package goes by post or courier to the Parent, Child and Other Family Processing Centre in Perth. Send certified copies only and keep your own copy of everything.

Frequently Asked Questions

Do I need consent from a parent who lives in Australia with the child?

No. The published requirement applies only to people who have a legal right to decide where the child lives and are not in Australia with the child. A co-resident parent who is living with the child here falls outside it, so no Form 1229 is needed from them on that basis.

Is a statutory declaration as acceptable as Form 1229?

The official page lists them as alternatives from the same person, so yes. The declaration has to state consent for the child to stay in Australia on this visa, and it must be accompanied by an identity document showing the declarant's signature and photo.

What identity evidence has to accompany the consent?

A document that shows both the signature and the photograph of the person who completed the form or declaration. The page gives a passport or driver's licence as examples. Adoption papers or other court documents must be added where they are applicable to how the parental responsibility arose.

My child will live with a family friend, not a relative. Which forms apply?

Form 1257 Undertaking declaration applies where the child is not staying with a relative or legal guardian, and the person they are staying with signs it. Any separate consent obligation still stands if someone overseas has the legal right to decide where the child lives.

What can I use if the other parent simply refuses to sign?

The two alternatives on the official page are an Australian court order allowing the child to migrate to Australia, or evidence that the laws of the applicant's home country allow them to migrate. Neither option removes the best interests assessment, which is decided separately at the decision stage.

Does obtaining consent guarantee the visa will be granted to my child?

No. The department states it will not grant this visa if doing so is not in the best interests of an applicant under 18. Consent documents deal with who agreed to the migration; clause 838.225 and clause 838.226 impose additional public interest criteria that are assessed independently.