1 Under what circumstances may a parent lawfully remove the child to another state without the other parent’s consent?
Section 30 of the Children Act 2009 allows a person with a residence order concerning the child to remove the child from Gibraltar for a period of less than one month.
Where there is no residence order in force, a parent with sole parental responsibility can lawfully remove a child from Gibraltar without permission from the other parent. However, the other parent who does not have parental responsibility may prevent the removal of a child from the jurisdiction by applying to the court for a prohibited steps order.
2 Under what circumstances is the other parent’s consent necessary for the child’s removal to another state?
Section 30 of the Children Act 2009 requires that where a residence order is in force with respect to a child, no one may remove the child from Gibraltar (other than for a period of up to 1 month) without the written consent of every person who has parental responsibility for the child, or the permission of the court.
Furthermore, section 184 of the Crimes Act 2011 provides that a parent (and specified other people which includes a person who is a guardian of the child, a person in whose favour a residence order is in force with respect to the child or a person who has custody of the child) commits an offence (abduction of a child) if he or she takes or sends a child outside of Gibraltar without the appropriate consent (which means the consent of the child’s mother and the child’s father if he has parental responsibility – or consent of specified other people referred to above).
Where there is no residence order in place but more than one person has parental responsibility for the child, no person with parental responsibility for that child is allowed to remove the child from Gibraltar without the consent of the other holders of parental responsibility or the permission of the court.
3 If the other parent does not consent to the child’s removal to another state, though it is necessary, how can the child be removed lawfully to another state?
A parent with a residence order concerning the child and who is seeking to remove the child permanently from Gibraltar can lawfully relocate with the child without the intervention of the court if they have the written consent of the other parent with parental responsibility or anyone else with parental responsibility. If consent is refused, an application to the court will need to be made for permission to remove the child from Gibraltar on a permanent basis (section 30 of the Children Act 2009).
The paramount consideration and determining factor in international relocation cases will always be the welfare of the child. Judges will take into account all the information available to them in each case before arriving at an independent judgment. They will seek first and foremost to make decisions that are in the best interests of the child concerned.
Furthermore, where there is no residence order in place, a person who has parental responsibility for the child and who is seeking to remove the child permanently from Gibraltar must apply to the court for permission if consent from anyone else with parental responsibility is refused.
4 Do the same rules apply to temporary removal (e.g. holiday, healthcare etc.) and permanent removal? If applicable, please provide relevant consent forms.
The response to question 1 above sets out the provisions for lawful removal of a child from Gibraltar for a period of less than one month. A person with a residence order in favour of the child can take the child abroad for less than one month and will therefore not need the permission of the other parent to take the child on holiday.
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