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For the purposes of Gibraltar law, parental responsibility would refer to the custody, care and control of a child, normally exercised by a parent or parents or by an appointed guardian. Generally, a parent or guardian is responsible for the custody and upbringing of a child and for the administration of any property belonging to a child or held in trust for the same.
Generally, in relation to the custody or upbringing of a child and the administration of any property, a mother has the same rights and authority as a father. Such rights and authority of a mother and father are equal and can be exercised by either without the other. These general rights are subject to any order imposed by the Gibraltar courts.
On the death of a parent, the surviving parent becomes the child's guardian either alone or jointly with any guardian appointed by the deceased parent. If the deceased parent had not appointed a guardian or the nominated guardian is either dead or refuses to act, then a guardian can be appointed by a court if it thinks fit.
A court may, on the application of the mother or father of a child, make an order regarding the custody of the child and the right of access to the child of his mother or father. The court also has power to give the custody of the child to any person (whether or not one of the parents). However, the grant of custody to one parent is unenforceable while both parents are living together.
Where it can be shown that a child is in need of care and protection, the juvenile court has power to commit him to the care of a fit person willing to undertake the child's care or place him under the supervision of a probation officer.
In the case of a divorce, the Supreme Court of Gibraltar has the power exercisable either before or after the final decree, to make provision for the custody, maintenance and education of the children of the marriage or even direct that proceedings be taken to place the children under the protection of the Court. The Supreme Court cannot make absolute a decree of divorce unless it is satisfied that satisfactory arrangements have been made for any children.
Where the parents separate, an agreement may be entered between the parties whereby one of them may choose to give up all or some of their parental rights. Such an agreement however, shall not be enforced by a court if the court is of the opinion that it would not be for the benefit of the child to give effect to it.
As indicated in question 4 above, where a parent enters into a separation agreement whereby he or she purports to give up all or some of his or her parental rights, such agreement will only be enforced by a court where it is of the opinion that to give effect to it would be for the benefit of the child.
If the issue of parental responsibility has been raised within the context of divorce proceedings, then the determination of this issue comes within the jurisdiction of the Supreme Court of Gibraltar. However, some social assistance may be obtained through marriage counselling. A marriage counselling service is provided by the Roman Catholic Church in Gibraltar. It may also be possible to deal with some of the issues through mediation.
The judge can decide any issue that he deems may affect the welfare of the child.
Once full custody is granted to a parent, he or she can then decide on all matters relating to the child without first consulting the other parent unless doing so constitutes a breach of an existing court order; for example, an order concerning access to the child.
Joint custody of a child means that both parents have equal rights and responsibilities in relation to the child. These rights can be exercised jointly or severally.
If the application for parental responsibility is made in relation to or as a consequence of divorce proceedings, then the application should be made to the Supreme Court of Gibraltar. An application is made by way of summons, supported by affidavit evidence. Upon the filing of these papers, the Supreme Court Registry would proceed to set a date for the hearing of the application.
Applications for a child in need of care to be made a ward of court should also be made to the Supreme Court of Gibraltar.
Where the issue of parental responsibility does not arise out of divorce proceedings, then an application can be made to the Magistrates' Court of Gibraltar. The application should be in the form of a written complaint setting out the relief sought and the grounds on which it is based. A copy of the child's birth certificate should also be included with the application as well as a copy of the marriage certificate, where applicable. Upon receipt of the complaint, the Court would proceed to list the matter and inform the parties of the return date.
In all cases, either the Supreme Court or Magistrates' Court would proceed to set a date for the hearing of the relevant application and inform the parties. Parties should attend court on the date set together with their legal representatives if applicable.
There are emergency procedures available where it appears that a child may be in need of care. In such cases, upon information on oath being laid before a justice of the peace in Gibraltar tending to show that a child is being assaulted, ill-treated or neglected,, a warrant can be issued for the detention of the child and his transfer to a place of safety until he can be brought before a juvenile court.
It may also be possible to make a child a ward of court. Such an application should be made to the Supreme Court of Gibraltar.
In both the Magistrates' Court and the Supreme Court, legal assistance may be available subject to the applicant having an annual income of less than £5,000 and subject to a means test. Applications for legal assistance in either court should be made to the Supreme Court and application forms are available from the Supreme Court Registry.
Where a decision on parental responsibility is made by the Magistrates' Court, an appeal may be made to the Supreme Court. Where the decision is made by the Supreme Court, it may be possible to appeal to the Court of Appeal.
An application should be made to the Court that made the original order of parental responsibility. If the court was the Magistrates' Court, then a complaint should be filed setting out the grounds of the complaint. In the Supreme Court, a Summons should be filed, supported by affidavit evidence where appropriate.
A judgment on parental responsibility given in a Member State arising out of divorce, legal separation or annulment proceedings can be recognised in Gibraltar. In order to enforce such a judgment, an application should be made to the Supreme Court of Gibraltar for a declaration of enforceability.
The decision on the application for a declaration of enforceability may be appealed against by either party. An appeal lies to the Court of Appeal and an appeal against a declaration of enforceability must be lodged within one month from the date of service of the notice of the decision. If the party against whom enforcement is sought is domiciled outside Gibraltar, then the time for appealing is two months from the date of service.
The Courts of Gibraltar will apply Gibraltar law, which includes local legislation, as well as any Acts or other provisions extended to Gibraltar from time to time.
Last update: 30-10-2006