The Petition of JP for Orders under the Child Abduction and Custody Act 1985 against AAR and ENM, 2020 CSOH 80
https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csoh80.pdf?sfvrsn=0 (Outer House, Court of Session, 28 August 2020)
JP, the Petitioner in this case and mother of a child born in Italy in 2012, applied for an order under the Child Abduction and Custody Act 1985. Her Petition was made on the basis that her child had been wrongfully retained in Scotland but was refused on the grounds that the child was no longer habitually resident in Italy.
JP shared parental responsibilities for ‘Bella’ with the first Respondent AAR (Bella’s father). The Second Respondent in the case is the current partner of AAR.
Bella was born in Italy in 2012. In January of 2018, on the basis of agreement between the parties, Bella went to Scotland with her dad to live there with both him and his partner.
In April of 2018, following allegations made by Bella about something sexual that had happened to her whilst in Italy, a Joint Investigative Interview took place. During this interview Bella described her time in Scotland as her being “on holiday”.
In June of 2018, following the separation of the first and second respondent, Bella was taken into care and accommodated in a foster placement until May of 2019. Following a reconciliation of the respondents, Bella was returned to their care.
The Petitioner alleged that she expected Bella to be returned to Italy to begin school on 10 September 2018. The Petitioner argued that her daughter could not be considered to be settled in Scotland as her time spent in Scotland had been ‘characterised by neglect’.
The Respondent disputed the existence of a fixed return date of 10 September 2018. He argued that Bella had, at that date, acquired a habitual residence in Scotland, and therefore had lost her habitual residence in Italy. The Respondent further asserted that the very fact he and his partner had sought support from the social services illustrated their level of integration into their local community and, flowing from that, Bella’s.
Opinion of Lady Wise
The issue before the Outer House of the Court of Session was whether Bella was habitually resident in Italy immediately before her alleged retention in Scotland i.e. prior to the 10 September 2018.
Lady Wise in her Opinion highlighted that the date of 10 September had not been raised initially by the Petitioner when she had made complaints to the Social Work Department about Bella’s care in Scotland. This shed doubt as to the likeliness of any firm agreement being in place for Bella’s return on that date.
In reference to Bella describing her residence in Scotland as ‘a holiday’ during the JII, Lady Wise asserted that this was not surprising considering the fact that Bella had been told very little of the circumstances surrounding her move to Scotland.
Lady Wise refused to criticise the Respondents for Bella’s initial lack of attendance at school. She states in her opinion that had Bella stayed in Italy, she may have attended nursery, however would not have started formal school until September of 2018.
Lady Wise in her conclusion stated 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.” [paragraph 31]
The petition was therefore dismissed.
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