Italian parents accused of abusing children lose children’s panel jurisdiction appeal in Court of Session

About this case:

• Citation:
  [2022] CSIH 50
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Doherty

Appellants LO and EO, who along with their children held dual nationality as Italian and Nigerian citizens, argued that the sheriff has erred in law in deciding not to entertain their arguments that an Italian court ought to assume jurisdiction.

The appeal was heard by Lord Doherty, Lord Boyd of Duncansby, and Lady Wise. The appellants appeared as party litigants and the respondent, the Locality Reporter for the Scottish Children’s Reporter Administration, was represented by Scullion, advocate.

Connection with Italy

The appellants were a married couple with four children now aged between 6 and 21. After their home in Italy was damaged in an earthquake they relocated to Glasgow in November 2016 with their two youngest children, NO, now aged 11, and EO, now aged 6. The two older children, P and MO, came back to live with the family in January 2017. All the appellants’ children were enrolled in Scottish schools and nurseries and registered with a GP.

In late February 2017, MO disclosed to teachers and social workers that he had been physically and emotionally abused by the appellants for several years. It was found by a sheriff that there were grounds of referral in terms of the Children’s Hearing (Scotland) Act 2011, describing the evidence of abuse as “overwhelming”. On 14 May 2018, the children’s hearing made MO, NO, and EO subject to compulsory supervision orders.

At a further children’s hearing in July 2019 the appellants argued for the first time that the children had not been habitually resident in Scotland at the commencement of proceedings in 2017. After taking advice from the National Convener, the children’s hearing rejected this argument. This decision was upheld by another sheriff in January 2020.

The present appeal arose after a children’s hearing of November 2021 again renewed the CSOs in respect of NO and EO. This decision was appealed to a third sheriff, who found that the question of jurisdiction had already been decided in the 2020 appeal and held that revisiting that decision was tantamount to reviewing the decision of a fellow sheriff.

It was submitted by the appellants that in March 2017 when proceedings began the family was not habitually resident in Scotland because their presence was temporary while their home in Italy was being rebuilt. Standing the family’s strong connection with Italy, and because the alleged abuse was said to have taken place in Italy, the sheriff ought to have exercised the power to decline jurisdiction.

Best interests

Delivering the opinion of the court, Lord Doherty began: “Sheriff Divers noted that the children’s hearing of 28 October 2019 had determined that NO and EO were habitually resident in Scotland at the time the proceedings were instituted, and that on appeal Sheriff Kelly had upheld that decision. The appellants had not appealed Sheriff Kelly’s decision. The children’s hearing of 19 November 2021 concluded that the question of jurisdiction had already been determined. It was correct to do so.”

He continued: “Sheriff Divers held that the issue of jurisdiction had already been decided by the children’s hearing and by Sheriff Kelly. He was right - it was not open to him to reach any other conclusion. It follows that he did not err in law in finding that the decision of the children’s hearing on 19 November 2021 was justified. That is sufficient to dispose of that aspect of the appeal.”

Addressing an argument that there were ECHR reasons for declining jurisdiction, Lord Doherty said: “[The children’s hearing] was not persuaded that the Italian court was better placed to hear the cases, or that it would be in the best interests of the children that the proceedings should be transferred. The sheriff held that the children’s hearing’s decision on that matter was justified. We detect no error of law in his conclusion or reasons. The material before the children’s hearing indicated that it had been seised of the proceedings since 7 March 2017 and that the children had been looked after in the care regime here since then. The behaviour which gave rise to the proceedings had occurred in both Scotland and Italy.”

He concluded: “The Juvenile Court of Ancona had declined to make a request that the proceedings be transferred to it, notwithstanding that the appellants had asked it to make such a request. We agree with the respondent that it may reasonably be inferred from the Italian court’s judgment that in the particular circumstances it did not consider itself better placed than the children’s hearing to deal with the cases; and that it was not of the view that it would be in the children’s best interests for the proceedings to be transferred to it.”

The appeal was therefore refused and the case remitted to the sheriff to proceed as accords.