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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF JP FOR ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 AGAINST AAR AND ENM [2020] ScotCS CSOH_80 (28 August 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_80.html
Cite as: [2020] ScotCS CSOH_80, 2020 Fam LR 117, [2020] CSOH 80, 2020 GWD 30-388
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OUTER HOUSE, COURT OF SESSION
2020 CSOH 80
P121/20
OPINION OF LADY WISE
In the Petition of
JP
for
Petitioner
Orders under the Child Abduction and Custody Act 1985
against
AAR
First Respondent
and
ENM
Second Respondent
Petitioner: Clark; Brodies LLP
First Respondent: Cartwright; Drummond Miller LLP
Second Respondent: Coutts; Millard Law
28 August 2020
[1] The petitioner, JP, is the mother of a child born in Italy in October 2012, who is the
subject of these proceedings. She will be referred to as Bella throughout, a fictitious name to
preserve her anonymity. AAR, the first respondent, is Bella’s father. He was never married
to the petitioner but it is not disputed that as a matter of Italian law he and the petitioner
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have shared parental responsibilities and rights in relation to their daughter, including the
right to determine where she should reside. The second respondent, ENM, is the first
respondent’s partner. She and the first respondent have two young children and although
the couple are both Italian they have lived in Edinburgh since about 2015. They have two
young children who were born in Scotland. The petitioner is a citizen of the Ivory Coast but
was born in Switzerland and has lived in Italy for many years. On 18 January 2018 Bella
travelled with her father to Scotland, her mother having agreed that she should live with
him and his partner here in circumstances that will be referred to in more detail below. The
petitioner alleges that she expected Bella back in Italy to start school on 10 September 2018.
[2] It is not disputed that Bella came to Scotland with the petitioner’s full agreement.
The issue is whether her retention in Scotland is wrongful. Both respondents claim that the
Hague Convention is not engaged in this case because they assert that Bella had been
habitually resident in Scotland for some time prior to 10 September 2018. It is accepted by
the petitioner that the retention cannot be wrongful unless Bella was habitually resident in
Italy on that date as none of the parties contend that she had no habitual residence at all.
JP’s position is that Bella did not lose her habitual residence in Italy because the
circumstances in which she lived in Scotland between 18 January and 10 September 2018
were characterised by neglect and change such that her residence did not have the settled
quality required for the acquisition of habitual residence. There was considerable
involvement during that period by the local authority, which has entered these proceedings
as an interested party but was not involved in the hearing that is the subject of this opinion.
A number of possible defences to an order for return being made would be in issue if the
convention is engaged and so the determination of habitual residence was dealt with at a
hearing restricted to the issue of wrongful retention.
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Undisputed facts
[3] While there was considerable reference in the affidavits and related material about
Bella’s departure from Italy and whether or not there was a firm date for her return when
she left, some of the essential facts were not in dispute. She had lived with her mother and
her maternal grandmother for almost all of the first 5 years and 3 months of her life. She
attended nursery school five days per week and the circumstances of her care and
upbringing were, at least on the face of it, unremarkable. Bella had relatively limited contact
with her father during those formative years. Her mother’s financial circumstances were
quite straightened. In paragraphs 5 and 6 of her supplementary affidavit (number 105 of
process) the petitioner states that she did not tell anyone, including Bella, that she had
decided that the child should live in Scotland at least until she found a permanent job after a
sewing course she was about to undertake. She was aware that some people around her
would think it was a bad idea. The petitioner’s mother, TV, confirms in her affidavit that,
despite Bella having lived mostly with her since birth, her daughter JP had not informed her
of the plan until after the child left for Scotland with her father. TV was angry and states
that she did not know why her daughter would make such an arrangement.
[4] On 3 April 2018 Bella was subject to a Joint Investigative Interview (JII) by social
work and police authorities in Scotland following allegations made by the child about
something sexual that she described as having happened to her while in Italy. In that
interview the child described herself as being in Scotland “on holiday”. Bella was not
registered in school until April 2018, commencing in primary 1 of a local primary school
towards the end of that month. On 26 June 2018 Bella was received into the care of the local
authority at the request of the first respondent. The respondents had separated earlier that
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month and the first respondent and the child had presented as homeless. Bella was
accommodated in a foster placement. She started a new primary school on 15 August 2018.
She maintained contact with the first respondent initially on one or two occasions per week
but sometimes only once per month. The local authority considered the future for the child
and discussed the possibility of kinship care, including in Italy. Bella was returned to the
care of the respondents who had reconciled, in May 2019. The present petition was raised
on 11 February 2020.
Submissions for the petitioner
[5] Ms Clark submitted that Bella was not habitually resident in Scotland on
10 September 2018. She was in foster care and had relatively limited contact with the first
respondent and no contact at all at the time with the second respondent. She was attending
a new school and her understanding of the English language was limited although
progressing. Her circumstances were novel, evolving and unfamiliar. She was dependent
on the local authority for care and in turn that authority had delegated the primary care of
her to the foster carers. Her placement was intended to be a temporary one and had the first
respondent withdrawn his consent to that placement the local authority would most likely
have sought a Child Protection Order. Between 26 June and 10 September 2018 Bella’s
circumstances remained in a state of uncertainty and flux. She had not achieved sufficient
integration into her social and family environment to acquire habitual residence in Scotland.
[6] Ms Clark referred to various entries in the detailed social work records which had
been lodged in process. She pointed out that, prior to 26 June, Bella’s attendance at school
had been very sporadic and on 10 September she had been attending her new primary
school for only 3 weeks and 2 days. In the earliest period, January to April 2018, she appears
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to have been at home where only Italian was spoken. The social work records record
concerns by teaching staff that Bella’s absence from school was having a detrimental impact
on her. She was coping with huge change. She had no process of introduction to her foster
carers and had been thrown into a new situation, albeit that Bella embraced that and is
reported as not feeling sad. On 17 August 2018 there was a change of social worker and the
child is described in the records as clingy and unsettled. On 31 August 2018 at her second
meeting with that new social worker Bella is described as “shy but happy to come along”.
No further meetings with the social worker took place before 10 September.
[7] In essence there were two periods of a lack of familiarity for the child, first between
January and June 2018 and then again between late June and early September 2018. While
the placement in care did not negate the possibility of Bella acquiring habitual residence in
Scotland Ms Clark submitted that the degree of stability and integration was what mattered,
whether a child was cared for by her parents or by some other person or body. Bella was
not integrated in Scotland on 26 June 2018 because during the first of the two periods she
had been in an Italian speaking home, had no friends and had been kept from school. That
was not conducive to the acquisition of a new habitual residence. During the second period
between the end of June and 10 September Bella shared her foster placement with other
looked after children and her circumstances remained in a state of flux. Ms Clark relied
particularly on the local authority’s consideration of the possibility of kinship care in Italy as
indicative of Bella not being a child settled in Scotland. There was no real anticipation of
what her immediate future would hold. There were references in the social work records to
persistent threat by the respondents to return the child to Italy, telling social workers on
many occasions that they would do so. While the proposed return would have been to the
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paternal grandmother and not to the petitioner that did not detract from the child’s lack of
settlement in Scotland.
[8] Bella is an Italian child with native Italian speakers on both sides of her family.
However, her skin colour is apparently much darker than those of her half-siblings, the
children of the first and second respondents. There was some support for a suggestion that
she may have been rejected by the respondents due to her skin colour. This has been
recorded in the local authority’s assessment of need and risk dated 7 August 2018. The child
had experienced considerable difficulties in the care of the respondents and had stopped
eating, ingested toilet paper and was seen to be rocking back and forth and staring at the
wall for an hour when visited by a social worker. She was considered to be a child at risk of
harm, the skin on her elbows was broken and her hair was matted and tied up for a long
time. She was not able to settle quickly in foster care because of the trauma she had
experienced in the six months with the respondents. That period was glossed over in the
respondents’ materials and submissions. During the period 18 January to 10 September 2018
the persons on whom Bella was dependent were isolated and vulnerable and Italian and the
only change that occurred was her removal to temporary care for the last two and a half
months of that period. Ms Clark accepted that if there had been no consideration during
that period of the possibility of kinship care in Italy her argument would be less strong but
she contended that Bella’s roots in Italy had not come up completely by September and so
she had not completely lost her Italian habitual residence.
[9] Further reliance was placed on a number of entries from the social work records
indicating, for example, that by 24 August 2018 there was still no trusted adult in Bella’s life.
On 9 August that year the petitioner herself had made contact with social services about the
issue of Bella going back to Italy to attend school having become aware at the end of June
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that her daughter was in the care of the local authority. On 27 June 2018 a social worker had
told the petitioner that it was the first respondent who could choose where Bella lived. That
was the day after Bella was accommodated and created difficulties for the petitioner in
knowing what to do. On 26 July 2018 following telephone calls between the social work
department and the petitioner a social worker had told the petitioner that Bella was settled
and told the petitioner to seek legal advice. There had also been contact from the
petitioner’s mother and her maternal aunt with the social work department. Overall the
temporary nature of the child’s circumstances in September 2018 and the brevity of those
circumstances should result in a finding that Bella was not habitually resident in Scotland on
that date.
Submissions for the first respondent
[10] Ms Cartwright disputed that the petitioner had put a firm return date on Bella’s stay
in Scotland. She pointed out that the petitioner stated in paragraph 13 of her affidavit that
the parties signed a travel document at the airport on 18 January 2018. The first
respondent’s position was that he had met the petitioner at a train station to hand over Bella
and it was on the 17 January. In any event, the document lodged by the petitioner in
support of that contention was notably not signed by the first respondent. There had been
no reference by the petitioner to a specified return date until very late in the day.
Ms Cartwright accepted that whether or not there was a specific agreement to return was
not determinative of the question of habitual residence on the specified date but she was
clear that the first respondent regarded the arrangement as open-ended.
[11] It was accepted on behalf of the first respondent that there may be cases where a
child whose parents were fairly isolated in the new country and who was then taken into
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care could not acquire habitual residence, but it was not in dispute that a fact dependent
inquiry was required and here the facts were supportive of a change. It was noteworthy that
the first respondent had moved to Scotland as early as July 2015. He and his partner had
two children both born in Scotland and so Bella’s father had been habitually resident in
Scotland for quite some time before the arrangement made in January 2018. It was also
noteworthy that from the outset of Bella living here there had been some contact with social
services and that was recorded in the available records. The respondents were living in
poverty with very young children and it was highly relevant that they had sought the
support of social services themselves. That illustrated a level of integration into the
community. They were not hiding, they were not on the run or living outside society but
were seeking support to enable them to manage their lives. In any event, Bella’s life had not
been particularly settled in Italy prior to her departure. Reference was made to court
documents lodged in process and which indicated the mother’s reasons for dismissing a
previous action there. Ms Cartwright submitted that an unsettled life in terms of welfare
did not affect the ability to acquire habitual residence in a jurisdiction. While it was
acknowledged that Bella had not attended school until April 2018 and that her attendance
was sporadic, she had at least been enrolled in school consistent with a requirement of
Scottish education law that children attend school from an earlier age than in Italy. The
petitioner could hardly criticise the respondents for a lack of attendance at school in
Scotland in early 2018 if it had been her intention that the child would start school in Italy in
September 2018.
[12] It was noteworthy that this 5 year old child was not told by the petitioner why she
was being sent to Scotland. Nothing could turn on the child thinking in April 2018 that she
was on holiday because her mother had not told her otherwise. There was sufficient
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evidence to conclude that prior to 26 June 2018 Bella had acquired habitual residence in
Scotland. Her reception into care was in terms of section 25 of the Children (Scotland)
Act 1995 and was a voluntary procedure. It was a choice made by the family as being the
best option at that time. Between the end of June and 10 September there was even greater
integration in Scotland. Ms Cartwright also relied on various entries from the social work
records. For example, on 5 July 2018 Bella was recorded as settling very well and speaking
English with good understanding. As this was only 9 days after she was accommodated in
foster care it was clear that she was not purely an Italian speaker at that time. The note also
stated that her dry elbows were being moisturised and that appointments were being made
with the dentist and the optician. She was seeing her father twice per week on an
unsupervised basis. On 26 July a letter had been sent to the petitioner advising her that the
child was doing well. Against that background and the fact that the petitioner had been
involved in court proceedings in Italy on 22 June 2018 and had been advised on 27 June, five
days later, that she should seek legal advice, it was noteworthy that there was no mention
from the petitioner at that time of Bella being expected to return to Italy on 10 September.
By 16 August 2018 Bella was attending the second of her two primary schools in Scotland
and her mother was aware of what was going on. There was ample information to infer that
the petitioner was aware before that date that her daughter was settled, speaking English
and going to school in this jurisdiction such that her previous residence in Italy had been
uprooted and settlement in Scotland had taken place. By September the child had friends
and hobbies in this country as recorded in the first respondent’s affidavit. All of this had
taken place with the knowledge of the petitioner’s family. It was the case that there were
mentions in the records of one or other of the respondents considering a return to Italy but
these related to the social worker’s discussions with the second respondent and what she
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thought the first respondent was thinking. While it was not disputed that the relationship of
the respondents had been tempestuous, as a matter of fact they had both remained resident
in Scotland throughout.
[13] Taking the period January to September 2018 as a whole, Bella had gradually
acquired her habitual residence here and, although the need for external support from social
services had increased, it was because the child was already integrated in this jurisdiction
that her settlement with foster carers had been so easy. There was no evidence to support
that Bella had remained habitually resident in Italy. The social work department’s decision
to consider kinship care there did not point to a retention of habitual residence. The social
work department had taken jurisdiction to look at decision making for Bella’s future and
had assumed that they had the power to do that whether they had characterised that in
terms of habitual residence or not. No party challenged the local authority’s right to enter
into discussions about Bella’s future care.
[14] It was not in dispute that by 26 September 2018 the petitioner was living in Venice.
Bella had no connection with Venice, no friendships or other social ties and she would not
be familiar with her mother’s life there. The petitioner claimed that she had enrolled the
child to start school in Italy in September 2018 but provides no details as to where in Italy
that would be or what school she had been enrolled in and no documentation had been
produced. Ms Cartwright contended that dislodging habitual residence depended on many
factors which of course vary with age and circumstances. The only real connecting factor
Bella had with Italy by September 2018 was her mother as opposed to a home to which she
could easily return. There was simply no information at all about the petitioner’s
circumstances in September 2018 and it was for her to establish that. On 10 September 2018
Bella was not yet 6 years of age and an assessment of her habitual residence had to be
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carried out with that in mind. While she was living in foster care there was an intention that
her life in Scotland would be permanent. She was well integrated here and had no
continuing base in Empoli where she had lived from birth until January 2018. The mother’s
actions in having court proceedings in Italy for custody and maintenance dismissed in 2018
on the basis that the child was living in Scotland leant significant support to the first
respondent’s contention. The first respondent’s second plea-in-law should be sustained and
the petition dismissed.
Submissions for the second respondent
[15] Ms Coutts on behalf of the second respondent adopted her written submissions
which set out the detail of why she too contended that Bella had been habitually resident in
Scotland for some time prior to September 2018. It was noteworthy that during the relevant
period the petitioner had engaged a lawyer in Italy who had been dealing with the social
work department in Edinburgh. That was a different lawyer to the one instructed in relation
to child abduction matters in July 2019 some 10 months after the petitioner’s alleged date of
wrongful retention. The second respondent was in broad agreement with the first
respondent’s submission in relation to the history of events. The child had made an
allegation of abuse during the time she was in Italy to the second respondent and it was the
second respondent who had sought help with that from the social work department. ENM
had found dealing with that matter and the care of her own younger children very difficult
and the social work records should be taken as a reasonably accurate contemporary record
of what the parties said at the time.
[16] It was clear that Bella was a vulnerable child. Her mother had difficulties with
parenting in the early years and had moved to live with her own mother for support.
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Subsequently she had moved to the first respondent’s mother looking for support and that
had been shortly prior to the decision that Bella should go to Scotland to reside with her
father. It was noteworthy that the petitioner was moving to Venice with her new boyfriend
at the time. She made arrangements for the child to be cared for by the respondents. It was
also the second respondent’s position that the agreement had been that Bella would relocate
to stay in Scotland indefinitely. On that basis, the move had been a permanent one and
Bella’s habitual residence had changed when she left Italy. Shortly after her arrival the local
authority were told that the custody arrangements had changed and that Bella’s mother had
transferred custody to her father (Inventory for the Interested Party item 13 page 2). There
was also a note in the social work records from 11 April 2018 that the respondents had stated
a concern about what they would do if Bella’s mum changed her mind about Bella living
with them. They were unsure how best to support Bella.
[17] There was some suggestion in the records of harassment by the petitioner and her
family of the respondents who had been advised that they were under no legal obligation to
speak with that family. Importantly, there were a number of communications between the
second respondent and the health visitor and social work department during the second half
of May 2018 where the second respondent indicated she could not cope with Bella’s
behaviour and needed support. There was then some discussion about the sort of supports
that could be provided and there was a note of 6 June 2018 that the respondents no longer
wanted Bella and thought she should go to Italy. Thereafter, the social work department
discussed temporary foster care for Bella and on 18 June 2018 there was a note in the records
that the petitioner had been asking for telephone contact with her daughter but that the last
time there was contact there was a noted increase in sexualised behaviour by the child.
There were some reports of the petitioner threatening the respondents with action if Bella
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was not returned to Italy, although the date of 10 September does not appear to have been
mentioned. On 26 September 2018 the petitioner’s mother had sought Bella’s return to live
with her but there was no suggestion that the petitioner, who was working in Venice, would
have been able to take on the care of Bella herself.
[18] On the basis of these and all of the other facts now known to the court, it could not be
said that Bella retained habitual residence in Italy. Not only was the purportedly agreed
date for return not mentioned by the petitioner to the social work authorities over a
relatively long period, but no action was taken by the petitioner to seek Bella’s return until
towards the end of 2019 with the current proceedings being raised only in February 2020. It
seemed that the date of 10 September 2018 was an invented one. The purpose of Bella
coming to Scotland was to be with her father and his partner who were already settled in
Scotland and had half-siblings for her here. There was a clear joint purpose and intention on
the part of the parties that Bella would settle in Scotland with that family. The alternative
would have been moving to Venice with her mother and her mother’s new boyfriend. The
degree of integration required to alter habitual residence from Italy to Scotland was in the
circumstances much less than it would have been if the parental choice had not been joint or
if the first respondent and his partner had been less established in Scotland. In the
circumstances now known to the court Bella acquired habitual residence in Scotland as early
as January 2018 and it had not changed by September. On any view and even assuming
there was an agreement between the parties that she would be returned, Bella was always
going to live in Scotland for an appreciable period of time for a child of her age. There were
no plans for her mother to visit her or for Bella to visit her mother in Italy. The fact that she
has not had an easy time in Scotland and has had difficult circumstances here did not alter
the position. It was not necessary for Bella’s circumstances to have been ideal or even better
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than the circumstances that prevailed in Italy. It was enough that there was no plan other
than a settled intention that Bella live in Scotland for an appreciable period. If anything, the
fact that Bella was accommodated by the local authority on her father’s suggestion did not
weaken her habitual residence here; in fact it strengthened it. There were serious
allegations about what had happened to Bella in Italy by that stage and any discussions
about kinship care related to the possibility of the first respondent’s mother being a possible
carer. Had the first respondent acted on an idea that his mother care for Bella in Italy, the
local authority would have intervened and enforced the child’s retention in this jurisdiction.
[19] No weight should be attached to the child’s announcement at the JII that she was on
holiday in Scotland. She had been 5 years old and had not been told by her mother why she
was going to Scotland. Interestingly in the JII transcript there was a stage at which Bella
stopped the translator translating and said (referring to the translator) “she has got to learn”.
This was indicative of a high level of understanding of the English language on the part of
the child in April 2018. The second respondent was fully conversant in English and
Ms Coutts disputed the petitioner’s contention that prior to June 2018 Bella had lived in a
purely Italian speaking household. She had been well dressed and cared for and was not a
neglected child. The dry skin on her elbows did not mean that she was not physically cared
for and could happen to any child. There were records of Bella having fun at home and one
report of her facing the wall during a visit does not amount to being malnourished or
unhappy. In all the circumstances, even if the agreed relocation in January 2018 was not
sufficient to change habitual residence immediately, Bella had integrated into life in
Scotland before September 2018.
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Petitioner’s response
[20] Ms Clark submitted that the court should place no real emphasis on the documents
from the hearing on 22 June 2018 in the Florence Court. There had been two translations of
the document and nothing could be taken from the use of the words “expatriation” and
“domicile” where they were used in the different translations and so nothing could turn on
what might have been said to the court at that time. So far as the first respondent’s intention
was concerned there was a reference in the social work case records around September 2018
that he told a social worker he was unsure whether he was going to stay in Scotland.
Further, the petitioner did not accept that Bella was a vulnerable child when she was in Italy
and the petitioner has continued with her attempts to maintain contact with her child whom
she has not seen since January 2018. While there had been some indirect contact, this has
been obstructed by the respondents and the last occasion was in January 2020.
The applicable law
[21] The Hague Convention on the Civil Aspects of International Child Abduction is
incorporated into domestic law in this jurisdiction by the Child Abduction and Custody
Act 1985. Article 3 provides as follows:
“The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal or retention.”
Article 12 provides that where a child has been wrongfully removed or retained in terms of
Article 3 and less than one year has elapsed from the date of the wrongful removal or
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retention the authority concerned shall order the return of the child forthwith. 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. There was no dispute between the parties on how the law in
relation to habitual residence in the context of international child abduction has evolved in
recent years.
[22] In A v A and Another (Children): Habitual Residence (Reunite International Child
Abduction Centre and Others Intervening) [2013] AC 1 the UK Supreme Court examined the
traditional view of habitual residence as that had been interpreted in England and Wales
against the European Court of Justice guidance and following the implementation of
Council Regulation (EC) No 2201/2203 (“Brussels II bis”). At paragraph 48 of the judgment
by the Court of Justice of the European Union and other relevant authorities, drew all of the
threads of the previous case law, including European case law, together and made eight
relevant points (at paragraph 54). These included that habitual residence is a question of
fact and not a legal concept such as domicile (and so there is no legal rule akin to that
whereby a child automatically takes the domicile of his parents); that the test adopted by
the European court for habitual residence was “the place which reflects some degree of
integration by the child in a social and family environment” in the country concerned; and
that it is unlikely that such a test produces different results from that previously adopted in
the English courts. Baroness Hale specifically expressed the view that the test adopted by
the European court was preferable to that earlier adopted by the English courts insofar as
they had focused on the purposes and intentions of the parents rather than the situation of
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the child. Accordingly any test that preferred the purposes and intentions of the parents
should be abandoned in deciding the habitual residence of a child. Further, the social and
family environment of an infant or young child is shared with those (whether parents or
others) on whom he is dependent. In any case in which habitual residence is at issue it is
necessary to assess the integration of that person or persons in the social and family
environment of the country concerned. The essentially factual and individual nature of the
enquiry should not be glossed with legal concepts which would produce a different result
from that which the factual enquiry would produce. Finally the court noted that it was
possible that a child may have no country of habitual residence at a particular point in time.
The reference to that possibility came from the Advocate General’s opinion in the case of
proceedings brought by A, cited above, at paragraph 45. The possibility of a child having no
habitual residence at all during a transitional period was said to be “conceivable in
exceptional cases”.
Supreme Court expressed the following view on the way in which the loss of one habitual
residence and the acquisition of another operates:
“45 I conclude that the modern concept of a child’s habitual residence operates in
such a way as to make it highly unlikely, albeit conceivable, that a child will be in the
limbo in which the courts below have placed B. The concept operates in the
expectation that, when a child gains a new habitual residence, he loses his old one.
Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts
down those first roots which represent the requisite degree of integration in the
environment of the new state, up will probably come the child’s roots in that of the
old state to the point at which he achieves the requisite de-integration (or, better,
disengagement) from it.
46 One of the well-judged submissions of Mr Tyler QC on behalf of the
respondent is that, were it minded to remove any gloss from the domestic concept of
habitual residence (such as, I interpolate, Lord Brandon’s third preliminary point in
the J case), the court should strive not to introduce others. A gloss is a purported sub-
rule which distorts application of the rule. The identification of a child’s habitual
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residence is overarchingly a question of fact. In making the following three
suggestions about the point at which habitual residence might be lost and gained, I
offer not sub-rules but expectations which the fact-finder may well find to be
unfulfilled in the case before him: (a) the deeper the child’s integration in the old
state, probably the less fast his achievement of the requisite degree of integration in
the new state; (b) the greater the amount of adult pre-planning of the move,
including pre-arrangements for the child’s day-to-day life in the new state, probably
the faster his achievement of that requisite degree; and (c) were all the central
members of the child’s life in the old state to have moved with him, probably the
faster his achievement of it and, conversely, were any of them to have remained
behind and thus to represent for him a continuing link with the old state, probably
the less fast his achievement of it.”
A recent example of a Scottish case heard by the UK Supreme Court on this issue can be
stability of the residence that was important, not whether it is of a permanent character.
There is no requirement that the child should have been resident in the country in question
for a particular period of time, let alone that there should be an intention on the part of one
or both parents to reside there permanently or indefinitely (paragraph 16).
Discussion
[24] The first relevant issue to address is that of the circumstances in which Bella came to
Scotland. While the parties’ intentions are by no means determinative, it is clear from the
undisputed facts that they agreed that Bella would be resident in Scotland for an appreciable
period of time. The respondents contend that she was sent to live in this jurisdiction
without limit of time, in contrast with the petitioner’s position that she was to return to Italy
to start school on 10 September 2018. Either way, Bella was to live here for at least eight
months by the date of the alleged wrongful retention, quite a long time in the life of a five
year old child. There are two notable features about the circumstances in which this child
came to live in Scotland. First, the petitioner told no one, including Bella herself and her
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own mother (TV) with whom the child had lived and to whom she was attached, about the
arrangements. If there was a firm date on which Bella would return to Italy, I would have
thought it likely that the petitioner would have explained that to her own mother in order to
mitigate TV’s disapproval. The document produced by the petitioner which, she states,
represents an agreement between her and the first respondent that the child would be
returned by 10 September 2018 is not signed or otherwise acknowledged by the first
respondent and I attach no weight to it. 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. Nonetheless, while doubting that there was a firm date fixed between
the parties for the child to return to Italy at the time of departure, I will determine the
question of Bella’s ’s habitual residence as at the September date in light of the case now
pled. This accords with the guidance given in the authorities, summarised in the case of In
Re R (Children) 2016 1 AC 76. There Lord Reed (at paragraph 21) reiterated that parental
intentions in relation to residence in the country concerned constitute a relevant factor, but
not the only relevant factor. Importantly, an intention to live in a country for a limited
period is not inconsistent with becoming habitually resident there. Accordingly, in light of
the significant period of residence here by September 2018, the unusual circumstances in
which the petitioner agreed that her daughter could come and live in Scotland are in this
particular case little more than the starting point for examination of the facts.
[25] I will approach the matter by considering two separate periods of time as counsel did
in their submissions. First, there is the period between 18 January 2018 and 26 June 2018 the
latter date being the date of the voluntary reception of the child into care. Secondly, the
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period between late June and 10 September 2018 requires to be considered. Dealing with the
first period, counsel for the petitioner highlighted the joint investigative interview (JII) by
police and social work authorities following allegations made by Bella about something
sexual that she stated had happened to her while in Italy. It is not in dispute that she
described herself as being “on holiday” in Scotland at the time of that interview. 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 at that time. 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 5½ year old child would understand that concept. Although she
had been living in Scotland for about two and a half months at that stage she had not yet
been attending school and her life in Scotland will have centred around her father, his
partner and her two half siblings. She will no doubt still have presented as a little Italian
girl, albeit that, as counsel for the respondents pointed out, her understanding of the English
language appeared to be sufficient to contradict the translator at one point during the JII. I
reject the contention of the respondents that Bella became habitually resident in Scotland
almost immediately after arriving here in January 2018 and I reach that conclusion
regardless of whether the arrangement between the petitioner and the first respondent was
open-ended or not. On the basis of the authorities referred to, it does take a little time for
even a relatively young child to put down the necessary roots that represent the necessary
degree of integration in the new state or jurisdiction. The uncertainty in the child’s mind
about the circumstances in which she was resident in Scotland, coupled with the change of
care givers and lack of attendance at school or nursery school tend to militate against a rapid
integration of the type that might take place almost immediately. I do not wish to criticise
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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. That
changed relatively quickly thereafter and later in April she was enrolled in the first primary
school she attended here. From that point on her education was in the English language
only and she was beginning to integrate more into the different aspects of the county in
which she was residing.
[26] There is little doubt that the respondents faced a number of challenges in coping
with their care of Bella at the same time as her two half siblings against a background of
financial challenges and the couple’s volatile relationship. They had accessed social services
from the beginning of Bella’s time in Scotland. By 2018 the respondents had been living in
this country for some years and I accept Ms Cartwright’s submission that it exhibited a level
of knowledge of and integration in the system that they sought to access such support
themselves. The circumstances in which Bella came to this country are in direct contrast to
situations where a parent hides from the authorities because of the circumstances in which
the child was removed from his or her habitual residence. The respondents had been living
openly in Scotland for some years and had, with the petitioner’s agreement, taken Bella into
their home to live. No criticism should be levelled at them for seeking necessary support
from social services when required. 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
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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. Her family life became unsettled because her primary care givers separated
and that created a crisis in terms of the first respondent’s accommodation and ability to
provide day to day care for his daughter. There was no suggestion from anyone involved in
this jurisdiction that a solution might be to return Bella to her mother. In this context the
dismissal of the proceedings in Italy is a significant factor. The petitioner had raised
proceedings in the court in Florence seeking sole custody of Bella. Those proceedings were
dismissed on 22 June 2018 on the basis that Bella had been living in Scotland with her father
for some months. Regardless of any difficulties with the translation of the court documents,
the petitioner was legally represented and her consent to their dismissal reflected the fact
that she had given care of her daughter to the first respondent in Scotland. She did not then
act on the suggestion to seek legal advice when she heard of her daughter’s reception into
care a few days later. These facts add to the sense that Bella’s residence in Scotland had, by
June 2018, taken on a fairly permanent character.
[27] Ms Clark for the petitioner did not suggest that the reception of Bella into care at the
end of June 2018 negated the acquisition by her of a habitual residence in this country. What
she contended was that, when considered carefully, the circumstances in which this child
had been in Scotland throughout the period in question were so temporary and
unsatisfactory as to be insufficiently settled to change her habitual residence from Italy to
Scotland. The opposing contention was that a lack of settlement in a welfare sense had no
effect upon the child’s ability to acquire habitual residence in this jurisdiction. I was advised
that there was no English or other comparative authority known to counsel on this point.
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The issue of principle is of course well settled in accordance with the authorities to which I
have already referred. 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. That is clear from paragraphs 45 and 46 of in Re
B (a child) [2016] AC 606 cited at paragraph 23 of this opinion. 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.
[28] At the hearing in this case all counsel addressed me on various passages from the
social work records that might cast light on the extent of the child’s settlement during the
second significant period from late June onwards. As indicated, the circumstances in which
Bella was received into care voluntarily included the first respondent’s homelessness when
he and the second respondent separated. It is noteworthy that the petitioner was advised
that Bella was in care but there was no active suggestion on her part in response that she
would remove her from the care of the local authority. In fairness to the petitioner, it does
seem that the Social Work Department may have advised her, incorrectly, that the decision
about where Bella should live was by that time solely with the first respondent and it may
be that her lack of insistence that Bella be returned emanated from that. She did make a
suggestion in August 2018 that Bella might go back to Italy to attend school. On the basis of
the available Social Work Department records, it seems that Bella settled well into her foster
placement and that her life became calm and secure. She retained contact with her father
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during the time she was in care. In August 2018 she started a new primary school and
continued to be completely immersed in the English language both at home and at school. I
accept the submission made on behalf of the second respondent in written submissions that
the concept of being settled in the context of habitual residence does not mean living in ideal
circumstances or in better circumstances than prevailed in the previous country of habitual
residence. By the summer of 2018 Bella was well settled in Scotland and living in
circumstances experienced by a number of children in this country, namely of being in the
temporary care of the local authority but maintaining contact with the parent who would
normally have day-to-day care and control of them.
[29] In the petitioner’s submissions, much was made of the discussions at Social Work
Department level of the possibility of kinship care for Bella in Italy during this period.
Self-evidently these would not have been discussions in which the child was involved, nor
which impacted on her day-to-day life at all. They were simply discussions that one would
expect to take place given Bella’s country of origin. The fact that she was and is an Italian
child should not be conflated with the determination of the fact of her habitual residence on
a given date. From a child centred perspective, it seems to me that Bella’s roots in Italy had
been dislodged quite some time before 10 September 2018. She had not seen those who had
been her primary care givers in Italy, her mother and maternal grandmother, for seven
months by mid-August 2018. She has an aunt, MU, who lives in Switzerland and to whom
the child had been close, but she had not seen Bella since September 2017. The only
immediate family member with whom this little girl had contact in the summer of 2018 was
her father, the first respondent. She was settled in a temporary foster placement and
attending a local school. While the social work records noted on 24 August 2018 that there
was still no trusted adult in Bella’s life, that is a reflection of the disadvantages that this child
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was facing in her young life and not a comment about whether or not she had integrated
into life in Scotland. Indeed, had there been any indication in the social work records that
Bella was still so attached to her previous care givers in Italy that she had not settled well in
Scotland, that would have been a factor that might have militated away from integration in
this jurisdiction. There is no such record. The progress Bella made with her English
language is narrated by the first respondent in his affidavit (at paragraph 15), where he
records also that once attending her new primary school in August 2018 Bella was
undertaking many activities including football, dancing and swimming and had made
friends at the various clubs she attended. For his part the first respondent disputes that he
told the social workers at any time that he might return to Italy. The second respondent
certainly seems to have done so and may have indicated to the social workers that the first
respondent was also contemplating such a move. Again, however, there is no suggestion
that Bella was ever alerted to any possible intention on the part of the respondents to leave
Scotland and no active steps appear to have been taken to that end.
[30] The paperwork available to me in this case is voluminous, primarily because the
social work records detailing Bella’s circumstances over now a fairly long period of time
have been produced. Some of those records would be more relevant to a possible defence of
a grave risk to the child were she returned to Italy and I am not addressing that in this
opinion. It is noteworthy, however, that insofar as there are serious allegations of abuse of
Bella, these relate to the time that she was in Italy. There is no suggestion at all that she
suffered abuse at the hands of the respondents. In his affidavit, the first respondent sets out
some of the very challenging behaviour that Bella presented shortly after making the
statements about what she said had happened to her in Italy at the hands of a male friend of
her mother. I consider those allegations relevant only insofar as they support a contention
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that Bella’s life in Italy was not, from the child’s perspective, one of completely uneventful
stability such that habitual residence there might have been particularly hard to dislodge.
Regardless of the truth or otherwise of the allegations made, the child has raised concerns
about something she states happened to her in Italy that has caused the Social Work
Department in this jurisdiction to make clear that they would take steps to try to avoid her
return to her previous care situation there.
[31] 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. Accordingly, I accept the contention of the
first and second respondents that the Hague Convention is not engaged in this particular
case because the child in question was not habitually resident in Italy on the material date of
10 September 2018.
[32] The proceedings in this case were not raised until February 2020, by which time Bella
had been returned to the respondents, who had reconciled. She has been living permanently
with them since May 2019. Relations between the petitioner and the respondents have come
to an end and apparently Bella has had no contact with her mother of any kind, the previous
contact having been by telephone or electronic means only, since January of this year. My
decision on the lack of engagement of the Hague Convention in this case has no bearing on
the question of what is best for this child’s care and upbringing going forward. I can only
hope that all of those involved will now focus on that important matter.
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Conclusion
[33] For the reasons given above I will sustain the second pleas-in-law for each of the
respondents and dismiss the petition.