PETITION OF JP FOR ORDERS UNDER THE CHILD ABDUCTION AND CUSTODY ACT 1985 AGAINST AAR AND ENM [2020] ScotCS CSOH

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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] CSOH 80, 2020 GWD 30-388, [2020] ScotCS CSOH_80, 2020 Fam LR 117

[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

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

[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

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

[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

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

paternal grandmother and not to the petitioner that did not detract from the child’s lack of

[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

[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

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

[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

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

[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

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

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

[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

[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

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

[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

[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.

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

[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

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

[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

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

[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.

[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

“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

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

[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

Baroness Hale of Richmond, citing the case of Proceedings brought by A [2010] Fam 42 decided

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

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

[23] In the subsequent case of In re B (a child) [2016] AC 606 Lord Wilson in the UK

Supreme Court expressed the following view on the way in which the loss of one habitual

“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,

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

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

A recent example of a Scottish case heard by the UK Supreme Court on this issue can be

found in In re R (Children) [2016] AC 76. There Lord Reed emphasised that it was the

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).

[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

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

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

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

[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

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

[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.

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

[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

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

[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

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

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

[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

[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.

[33] For the reasons given above I will sustain the second pleas-in-law for each of the

respondents and dismiss the petition.

Scottish Court of Session Decisions