Child abduction order for Italian girl temporarily placed into foster care refused



Lady Wise
Lady Wise

A mother who applied for an order under the Child Abduction and Custody Act 1985 on the basis that her child had been wrongfully retained in Scotland has had her petition refused on the ground that the child was not habitually resident in Italy.

The petitioner, JP, shared parental responsibilities with the father of her daughter, AAR, under Italian law. The father and his current partner, ENM, the first and second respondents respectively, had been living in Edinburgh since 2015.

The petition was heard in the Outer House of the Court of Session by Lady Wise.

In foster care

The child, referred to as ‘Bella’ throughout the proceedings, was born in Italy in October 2012. On 18 January 2018, Bella travelled to Scotland with her father to live with him and his new partner. The petitioner alleged that she expected Bella back in Italy to start school on 10 September 2018.

The position of the respondents was that Bella had acquired a habitual residence in Scotland by 10 September 2018, and therefore lost her habitual residence in Italy. The pursuer disputed this on the basis that her residence in Scotland was characterised by neglect and change such that her residence could not be considered settled.

In April 2018, Bella was subject to a Joint Investigative Interview by social work and police authorities in Scotland following allegations made by the child about something sexual that had happened to her in Italy. In that interview she described herself as being “on holiday” in Scotland. She was registered in a Scottish primary school later that month.

In June 2018 Bella was taken into the care of the local authority following the separation of the respondents. She was accommodated in a foster placement until May 2019, when she was returned to the care of the respondents following their reconciliation.

The petitioner submitted that Bella had relatively little contact with the first respondent on 10 September 2018 and had not sufficiently integrated into her new social and family environment to have acquired a habitual residence in Scotland. Her circumstances were in a state of uncertainty and flux at the material time. Evidence was presented that showed Bella had only attended school sporadically and had been in a solely Italian-speaking household in the early period of her time in Scotland.

The respondents disputed the return date of 10 September 2018 as a fixed point, saying that no date had been agreed until very late in the day. Bella’s father had been habitually resident in Scotland for quite some time before January 2018. Further, the fact that the respondents had sought the support of social services for Bella themselves illustrated a level of integration into the community. Further, the petitioner could hardly criticise Bella’s school attendance when she only intended for her to begin school in September 2018.

No expectation of leaving

 In her opinion, Lady Wise highlighted that this was a single-issue case, saying: “There are certain limited defences to a return where wrongful removal or retention is established but none is relevant at this stage. The sole issue for determination is whether the child of the petitioner and first respondent was habitually resident in Italy immediately before her alleged retention in Scotland.”

On the parties intentions regarding a return to Italy in September, she said: “I note that the specific date of 10 September was not raised initially by the petitioner in her complaints to the Social Work Department about what had happened to Bella in Scotland. Had there been a firm agreement to return the child by that particular date, it seems to me to be likely that the petitioner would have raised that at an early stage.”

She continued: “As her mother had told her nothing of the circumstances in which she was coming to Scotland other than she would return to Italy “soon”, it is not surprising that Bella characterised her residence here as a holiday [during the JII]. It does support a contention that at least from the child’s own perspective she may not have regarded herself as habitually resident in this jurisdiction, in so far as a 5½year old child would understand that concept.”

Of Bella’s level of integration, she said: “I do not wish to criticise the respondents for Bella’s initial lack of attendance at school. Had she remained in Italy, my understanding is that, while she had been attending nursery or pre-school since 2015,she would not have started formal schooling until September 2018; indeed that is the reason why the petitioner states she ought to have been back in Italy by then. The first respondent appears to accept that there was a delay in enrolling her for primary schooling here, but the relevant fact is that when she spoke with the authorities on 5 April 2018, she was not attending a local school and so had not acquired that type of social integration.”

She continued: “Having regard to the social work records and other available material, I conclude that, while Bella’s home life was difficult in some respects and while she was exhibiting behaviour said to be linked to the disclosures she had made about life in Italy, her existence in this country was taking on more of a permanent character by June 2018.There was no expectation by anyone in Scotland that she would be leaving this jurisdiction.”

On the effect of Bella’s foster placement, she said: “A factual inquiry of the child’s particular circumstances will be determinative of whether her habitual residence changed. What is important, however, is that it is the degree of integration in the new state that is the key consideration, not the strength of the child’s bond or relationship with the parent who has allegedly wrongfully retained her in the jurisdiction in question.”

She continued: “By June 2018 Bella had progressed from being an infant or very young child whose ability to settle in a country will be inextricably linked with her caregivers’ ability or inability so to settle to a schoolgirl with her own peer group. Her residence in Scotland was by then taking on a more permanent quality.”

Lady Wise concluded: “From all of the above. I conclude that by about the middle of 2018 and certainly by August 2018 Bella had lost her habitual residence in Italy and acquired a new habitual residence in Scotland. Her time here had not been entirely happy and she had undergone a change of day to day residence albeit with regular ongoing contact with her father. By 10 September 2018 her life was more settled in a welfare sense as indicated above and she had few if any links to her previous life in Italy.”

For these reasons, the petition was dismissed.

© Scottish Legal News Ltd 2021



Other judgments by Lady Wise