Mother-of-two who left abusive Italian partner wins appeal against order to return children to Italy

Lord Malcolm
Lord Malcolm

A Polish mother-of-two who moved to Scotland with her children after leaving her allegedly abusive Italian partner has successfully appealed against a court ruling ordering her to return the two boys to Italy for the courts there to determine issues of residence and contact.

The Inner House of the Court of Session allowed the appeal and quashed the order after concluding that the Lord Ordinary had failed to adopt a “child-centric” approach in considering the issue of whether they had settled in Scotland and that he “erred” in the exercise of his discretion.

‘Wrongful removal’

Lady Paton, Lord Menzies and Lord Malcolm heard that in January 2018 the Lord Ordinary upheld a petition brought by the Italian father “C” under the Child Abduction and Custody Act 1985, which incorporated the Convention on the Civil Aspects of International Child Abduction into UK law, and ordered the Polish national mother “N” to return her two Italian-born sons “E” and “Y”, now aged nine and six years respectively, to Italy.

The court was told that the parties lived together in Italy from 2006 until 2015 when their relationship deteriorated, after the petitioner claimed the respondent had an affair with another man, while she claimed it was because of the petitioner’s domestic abuse and violence.

Physical separation took place in January 2016 when the mother left the family home with the children to live with friends.

In her affidavit she claimed that in March 2016 the father arrived in an inebriated condition wanting to spend time with the children, but on being refused because of his condition he punched her in the face - an alleged incident which occurred in front of the children and the mother’s friends was the subject of ongoing criminal proceedings.

Without informing the father, in May 2016 the mother left Italy with the children and went to live with her father in Poland, but she later informed the father where she was and he replied to the effect that she could stay in Poland for the summer with the children on the understanding that they would return to Italy in time for the autumn school term which commenced on 9 September.

However, in July 2016 the mother travelled to Scotland to live with her mother and after three months here she obtained a council house, where she has lived with her children ever since.

In December 2016, through his sister, the father was informed as to the whereabouts of the mother and his children, but the current proceeding were not commenced until 20 September 2017.

Order to return

In respect of article 12 of the Convention, which provides for the mandatory return if proceedings are raised within one year from a wrongful removal or retention unless it is demonstrated that the child is now settled in its new environment, the mother relied upon evidence from herself and independent parties, including affidavits from the boys’ head teacher and from neighbours; the boys’ school reports; the mother’s tenancy agreement and contract of employment; and other documents indicating an engagement with external health services by the children.

She also relied upon a report from a psychologist, who indicated that the boys were happy at school and with their current living situation and positive about their relationship with their mother, while being clear that they did not want to see their father.

However, the father argued settlement in a new environment required to be so well established that it overrides the otherwise clear duty of the court to order the return of the child, but the evidence regarding settlement amounted to “very little beyond the children doing well in school”.

It was submitted that the “subterfuge” in bringing the boys to Scotland contradicted their settlement here and the evidence in relation to the emotional and psychological aspects of settlement was “superficial and poor”, as there was no reference the boys’ emotional stability and security beyond that they seem well/present well and have a strong attachment to their mother.

The Lord Ordinary Gave an ex tempore judgment indicating that he was not satisfied that the children were settled in Scotland, but in his note to the appeal court he explained that he considered that he should exercise his discretion and order the return of the children to the jurisdiction of the Italian courts, which discretion arises only if settlement has been established.

The mother appealed against the Lord Ordinary’s decision, arguing that the judge considered a number of matters which are not relevant to the determination of the question of settlement.

’Child-centric approach’

In a written opinion with which both Lady Paton and Lord Menzies agreed, Lord Malcolm said: “Having reflected on the full terms of the Lord Ordinary’s note, I consider that, notwithstanding what was understood to have been the basis for hisex tempore decision, this court should proceed on the basis of the concluding paragraph of the Lord Ordinary’s note, namely that the return order was the result of an exercise of his discretion.

“Leaving aside that in an extreme case the court will always have an option not to return a child, in the context and circumstances of this petition the Lord Ordinary would only be exercising such a discretion if he had concluded that the 12-month time period had elapsed and the children were settled in their new environment in terms of article 12. In any event, in my opinion the evidence overwhelmingly points to the children having become settled in both emotional and physical terms by the time of the raising of these proceedings.

“If I am in error as to my understanding of the structure of the Lord Ordinary’s reasoning, and he is to be understood as having rejected the mother’s case upon settlement, I would take the view that he erred in law…Given the evidence, I consider that settlement is the only reasonable conclusion in respect of both children. If it had been necessary I would have concluded that any other view would be plainly wrong.”

The Lord Ordinary’s order could only be overturned if one or more of the well-recognised grounds for interfering with a discretionary decision could be identified, and the appeal judges considered that the Lord Ordinary had taken account of “irrelevant factors” and “not weighed in the balance relevant factors pointing towards non-return”, adding that there was no sense that the judge adopted a “child-centric” approach.

Lord Malcolm concluded: “In the whole circumstances, and for the reasons which I hope emerge with sufficient clarity from all of the above, I have no real hesitation in reaching the view that the requested return order should be refused, and that the children should remain in Scotland with their mother while their long term future is resolved.”

© Scottish Legal News Ltd 2021

Other judgments by Lord Malcolm