A Mother v A Father

The application before the court is made by Form C66 for the return of two children from Costa Rica to England and Wales pursuant to the High Court's inherent jurisdiction. I will provide my reasons ex tempore.

The applicant is the mother of the two children. The respondent to the application is the father of the two children. The subject children are A, who is 6 years old and B who is 4 years old. The mother is a British citizen. The father is a Czech national. Both girls are British citizens who have British passports.

In support of her application for a summary return order, the mother has filed in the papers a witness statement. She describes her application as a hot pursuit case as her children went to Costa Rica on holiday and they should have been returned to her care on 9 August and they have not been. Today is 21 August so some 12 days have passed since the children should have been returned to her care.

It is important that I summarise some of the background in the witness statement because the history is important. The applicant met the respondent in 2015 in China. They began a relationship. A was subsequently born in 2019 and they moved to the Czech Republic. In 2020, B was born and the applicant learned that the respondent had been having an affair and says that he was financially controlling. The couple then moved to the United Kingdom to be closer to the applicant's family. The respondent, it is said, was often absent.

The couple then moved back to the Czech Republic in January 2021 and, again, allegations were made of abusive behaviour. In February 2021, they moved to Thailand and stayed for 18 months. The relationship encountered further difficulties and in August 2022, they moved to England. At a date in either 2022 or early 2023, the relationship ended over allegations of an affair and emotionally, financially and physically abusive behaviour.

In the summer of 2023, the applicant and the children moved to the west of England. She began work as a teacher. The respondent occasionally visited. It is my understanding that from August 2022 until August 2025, the children lived in England and Wales at all times. During that period, the respondent occasionally took the children on holidays and, indeed, there were two trips abroad, one to the Czech Republic and one to France. On both occasions, the children were returned.

In the summer of 2025, the applicant informed the respondent she had begun a new relationship. He strongly objected to that. In June 2025, the respondent left England and Wales for a work trip. There is an issue about whether or not he had packed up his apartment with some sort of plan to leave England and Wales but that appears not to have been known to the applicant at the time.

What is clear is that the applicant and the respondent agreed that the two children could have a holiday in Costa Rica. The mother was suitably careful to ensure that she knew when they would go and when they would come back and asked to see flight details. Exhibited to her witness statement are messages between the applicant and the respondent, one of which says in effect that they would fly out on 22 July and they would fly back on 9 August.

I have also seen the return flight ticket which shows a - I believe it is a United Airlines - flight from Liberia in Costa Rica on 9 August flying to Houston in the United States on the same day and then an onward flight from Houston at 8.15 on 9 August arriving into London at 11.35 on 10 August. On the basis of that information, the applicant consented to the two girls having a holiday in Costa Rica with their father.

My understanding is the applicant subsequently found out from the respondent's landlord that he had ended his tenancy of his property in the UK and would not return to it.

During the vacation in Costa Rica, initially, there were daily calls and photos and videos and matters seemed to go well. But the applicant has not spoken to the children since 4 August and thereafter, the respondent sent only one or two videos a day. On 9 August, when they should have boarded their flight, as was planned and arranged and agreed with the applicant, from Liberia in Costa Rica to Houston to fly back to England and Wales, the respondent telephoned the applicant to say that the children would not be returned. The respondent said there were safety concerns and that the children had raised issues regarding the applicant's new partner. Allegations were made that he was in some way abusive of the girls. It seems to me that there is simply no evidence of any of that and it is the applicant's position that this is entirely untrue and she points out that she does not live with her partner and her partner does not care for either of the girls.

Included in her witness statement are allegations of emotional, physical and financial abuse which span from May 2019 onwards to at least 2024.

On habitual residence, the witness statement says the children are habitually resident in England and Wales. B was born here and although A was not born in the United Kingdom, she has spent a significant period of her life in the United Kingdom. Both children lived here and were registered with doctors here. The children were both enrolled to start school in September 2025 and various documents are exhibited. That is the evidence which was provided in support of her application for a summary return.

I am told in addition to that evidence, on instructions by Mr Jubb of counsel, who has ably represented the mother in these proceedings, that since the unlawful retention in Costa Rica, the mother has instructed a Costa Rican attorney in San José and he has provided advice to her. I have not seen any of the advice but I am told, on instructions, that essentially it is twofold. First, that an order of this court would be of assistance in securing the return of the children from Costa Rica to England and Wales and secondly, that a draft application under the 1980 Hague Convention has been prepared and communication has taken place between ICACU in England and Wales and the Central Authority in Costa Rica.

I am further told -- again, it is not evidenced but matters are moving quickly -- that in line with Hague Central Authority procedures in Costa Rica, representatives of the Costa Rican social services attempted to visit a property in Liberia on the Caribbean coast of Costa Rica where the respondent was believed to be temporarily residing. It is believed that he was residing there with the girls because that is where the paternal grandfather lives and he has a property there. I am told that when the authorities visited in the last day or two days, that the respondent and the girls were not there but the authorities were told that they had been there, but they had not been seen for a day or so. Mr Jubb's submission is that this tends to suggest that the respondent may now be, as he puts it, "on the run" with the girls.

The application was sealed on 13 August and on the very same day, Theis J heard this matter. She was concerned to ensure that it was heard on notice to the respondent and she noted in her order that the papers which were before her had been sent to the respondent at his email address at 6.38 on 12 August 2025. She noted that the respondent had not attended the hearing and was not represented. She noted that the applicant attended and was represented.

She notes that the paternal grandfather resides in Costa Rica but the mother was unaware of the address in Costa Rica where the children were living. She was informed that there had been daily video contact until 4 August but that had ceased and that there had not been further contact between the children and their mother since 11 August.

She made a declaration that on the current evidence before the court the subject children were habitually resident in England and Wales and the court has jurisdiction to make welfare decisions in respect of the subject children and the children have been wrongfully retained in Costa Rica by the father after the end of an agreed holiday. They were due to return to this jurisdiction on 10 August.

She made an order that the subject children should be made wards of this court. She made an injunctive order preventing the respondent father, whether by himself or by instructing and encouraging any other person from removing the children from Costa Rica without the permission of a judge of the High Court of England and Wales. She ordered the respondent to file and serve a witness statement by 14 August and she listed the matter in front of herself again on 14 August. She required the respondent to attend the hearing by video link and she attached a penal notice. She granted permission to serve the order on the respondent by email.

A further hearing took place on 14 August, although I believe the order might say the 13th. The court noted in a recital that the mother's solicitors had taken steps to obtain legal representation for the respondent in this jurisdiction through a scheme called CALA. The court was informed that an approach had been made to Mr James Netto, a solicitor, who had referred the applicant's solicitors to other members of the CALA panel and that attempts had been made to reach out to the respondent by telephone and email but they were awaiting a reply.

The court was informed that the respondent had not communicated with the mother's solicitors. The court renewed the directions it gave at the previous hearing. The court renewed the declaration that on the current evidence the children are habitually resident in England and Wales. The court made clear, for the avoidance of doubt, that both children remained wards of court and the court made clear that the injunctive order preventing the respondent from taking the children, whether by himself or by others out of Costa Rica remained in place. It was ordered that the applicant's address be kept confidential. The respondent was, again, ordered to file evidence. Importantly, the Cafcass High Court team were requested to use their best endeavours to obtain the children's wishes and feelings in respect of returning to England and Wales and consideration to be given of their maturity. It was requested that a memorandum was provided on this basis.

The matter was then listed before me on 18 August. Once again, the respondent did not attend. The applicant attended, represented by Mr Jubb of counsel. It had not been possible for Cafcass to begin to make enquiries of the children's wishes and feelings and I decided that the better course was to adjourn the matter once more. I invited Mr Jubb to provide me with some fuller submissions on the test for, and appropriateness of, the court making a summary return order in the context of a return from a 1980 Hague Convention country to England and Wales. I directed the respondent to file evidence and attend this hearing and I continued the wardship and habitual residence orders that had been made by Theis J. I asked Cafcass to obtain the children's wishes and feelings and report in writing and/or attend this hearing.

In terms of today's hearing, I have a helpful updating position statement from Mr Jubb. He has updated me about what has happened on the ground in Costa Rica which I have already summarised. The respondent has not attended the hearing. I am satisfied he has been emailed the orders. It would appear that whilst he earlier received on WhatsApp, documents from the applicant’s solicitors, because two blue ticks on the WhatsApp application showed. I am told the two blue ticks are now not showing and it is suggested that it may be the case that the respondent has blocked the applicant’s solicitor.

I received an update from Cafcass, and for the avoidance of any doubt, Cafcass are the body who represent children in proceedings in England and Wales to ensure that children are properly represented and their voices are heard in proceedings. Cafcass are highly experienced in matters of child abduction. I heard from the Cafcass officer and she sent the court a letter dated 20 August 2025. She told me that she has made two attempts to speak with the two children. The only means by which she can arrange to speak to the children are by contacting the respondent by WhatsApp or by email. She has emailed him on two occasions, I believe once on 19 August and once on 20 August. She WhatsApped him on 19 August and two blue ticks appeared on the respondent’s WhatsApp. She believes that shows that her WhatsApp message got through to him. When she WhatsApped him again on 20 August, she received only one blue tick and, again, she understands that that means her message was communicated but it may not have been received and it may well be because she has been blocked. She offered to make further attempts but was not sure how she would be able to contact the children or the respondent, given he has not responded to emails and/or WhatsApps and they are now not being received. That is the background to the situation.

Just standing back from a welfare perspective, I am dealing with a 4 year old and a 6 year old, both little girls. They have lived all their lives with their mother. They have lived for the last three years in England and Wales. My understanding is this is the first time they have visited Costa Rica. They would have understood from communications with both their mother and their father that they were going to Costa Rica for a short holiday and they would return to their mother's care on 10 August. They have not seen or spoken to their mother now for at least ten days or so.

It is my assessment that all of these steps are prejudicial to their welfare. It seems to me that they are probably suffering emotional harm because they expected to return to their mother and have not done so. In as much as I understand the respondent’s reasons for retaining the children in Costa Rica, in my judgment, those are poor ones. If he has any legitimate safeguarding concerns in respect of the applicant’s partner, then the way to progress them would be, of course, to listen to the children and what they are saying, if they have said anything, and report these matters to the applicant and, indeed, to the appropriate authorities in the west of England.

Raising the issue with the applicant and retaining the children is, in my judgement, entirely the wrong way to go about things and, as I have said, is contrary to promoting the welfare of these children and has likely caused them emotional harm. It seems to me that the children had anticipated by 21 August they would be back in England and Wales. They were probably expecting to be buying school uniforms, lunchboxes, pencil cases as they began to prepare to begin their new school. I have seen the letter showing that they are registered in the school and I am sure they were looking forward and were excited about doing so. They are now possibly in a state of some turmoil and distress. They are probably unsure about when they may see their mother again. They are probably unsure about when they will come back to England and Wales.

If it is the case that they have been with their grandparents in Liberia, from what I am told, they are no longer there. I do not know where they are. Their mother does not know where they are. If the respondent is now “on the run” because he is concerned that the Costa Rican authorities will take steps to locate the children, they may well be facing further turmoil and emotional challenges.

All of this underlines why international child abduction is viewed as seriously damaging to the welfare of children. Unplanned changes to the lives of children are nearly always harmful to them. That is one of the core principles behind the 1980 Hague Convention.

That is the background. Mr Jubb's submission to me is that I should invoke the High Court's inherent jurisdiction and order the summary return of the children today. He made that submission on Monday but I wanted further information both from the Costa Rican lawyer, an update from the Costa Rican Central Authority and information from Cafcass. I say from the outset that I take the issue of making a summary return order very seriously indeed. Such orders are not to be lightly made by this court but this is now the fourth hearing in this application. The respondent has not involved himself in the proceedings at all. He has not filed any evidence. He has not attended any hearings. He has not explained why he is in breach of multiple court orders or why he is incapable of explaining what he says are safeguarding concerns to this court. He is simply avoiding the proceedings, no doubt because he has got no good reason to retain the children in Costa Rica.

I am also very much aware that Costa Rica is a 1980 Hague jurisdiction country. It has signed up and ratified and implemented the Convention and that Convention is fully in operation in Costa Rica. I am pleased to hear that a return order application will be made very soon. As all jurisdictions of the Hague Convention do, I would anticipate that that application will be dealt with speedily and efficiently by the Costa Rican authorities and judiciary.

I, of course, approach my task with the greatest of comity and confidence in Costa Rica going about its administrative and judicial role. I am fully aware that it would be the anticipation under the 1980 Hague Convention that this matter will be considered and determined within around six weeks.

It is important I say a little about the law. Theis J, on 13 and 14 August, and I on Monday, and again today, are of the view that the evidence is clear that these two girls are habitually resident in England and Wales and they remain so. They have lived here for the last three years with their mother. They are entirely settled in this country, albeit they did live in a number of different jurisdictions before that. They were planning to begin school in September. They have medical appointments, friends and family here. They were integrated here and it seems to me entirely clear without citing any authority, although I do have it in mind, habitual residence is of course a factual inquiry without any legal gloss, but I have no doubt in my mind that their habitual residence in England and Wales has not been displaced by their holiday in Costa Rica or the decision by the respondent to improperly retain them in Costa Rica.

Therefore, they are habitually resident in England and Wales and it is clear to me that I have jurisdiction to make a summary return order under the inherent jurisdiction.

The more difficult issue is whether I should invoke the inherent jurisdiction and make a summary return order when I am aware that the applicant’s lawyers in Costa Rica are about to issue a 1980 Hague return application. There is some authority on that issue.

I have considered a number of cases and I do not need to set them all out. But I have considered, first of all, the case of A (A Child) [2016] EWCA Civ 572. This is a judgment of Black LJ (as she then was) with the agreement of Sir James Munby, the President and Sir Stephen Richards. The case involved a child in this jurisdiction and whether or not that child should be returned to Sweden under the 1980 Hague Convention. It also involved issues regarding the Brussels II Regulations which, of course, is no longer in force in England and Wales.

It would appear from the judgment of Black LJ that the matter came before MacDonald J who had made a collection order. The appeal against that was not successful but MacDonald J set the matter down a week thereafter for a one hour directions hearing. At that directions hearing, Mostyn J relied on Article 20 of Brussels IIA but he pointed out in additional reasons added to his judgment -- I gather from paragraph [17] of the Court of Appeal's judgment -- that whilst he relied on Article 20, he also said he could just have easily have relied on the inherent jurisdiction. In reliance on Article 20 at that directions hearing, he ordered the summary return of the child to Sweden.

There was an appeal against that order. Black LJ allowed the appeal against that order and was clear that whilst Mostyn J was right to seek to act quickly, she said this:

She effectively said that the 1980 Hague Convention was the appropriate route and at paragraph [38] she said there would have to be particularly compelling reasons to even think of circumventing the 1980 Hague Convention by returning a child pursuant to Article 20 of Brussels IIA. That provides a pretty clear steer from the Court of Appeal that the Hague Convention should not be circumvented in sending a child from England and Wales back to a 1980 Hague Convention country.

It seems to me that, of course, I must place great weight on what Black LJ (as she then was) said. However, there are a number of distinguishing features: (1) The facts of this case are quite different; (2) Brussels IIA is no longer in force and I am not concerned with it; (3) the procedural history of this case is different. It is also the case that I am concerned with two small children who are habitually resident in England and Wales and who have lived for the last three years of their lives here, who now appear to be, effectively, stranded or retained in Costa Rica.

In any event, the more direct authority to assist me is the case of Re S (Abduction: Hague Convention or BIIa) [2018] EWCA Civ 1226. This is a 2018 case so it is some seven years old and, again, somewhat out of date for my purposes because BIIa is no longer in force. It is a helpful case because it involved a child who was taken from England and Wales to the Netherlands for a holiday, retained in the Netherlands improperly and there was both the possibility of an inherent jurisdiction return order being made and a 1980 Hague Convention return order being made.

Helpfully, Moylan LJ distils the key issue in the case at paragraph [1]:

As I have said, of course, BIIa does not apply but this case is helpful because it is similar factually. Both cases deal with children habitually resident in England and Wales who are removed to a 1980 Hague Convention country, and the issue is, "Do you await the 1980 Hague Convention outcome or can you make a summary return order at the outset."

In typically clear style, Moylan LJ, with the agreement of Peter Jackson LJ and Patten LJ, answers that question at paragraphs [45] and [46]. He says this:

Pausing there, it is clear that the inherent jurisdiction can apply and I will return to what Moylan LJ says about whether and how it should be exercised. I note, however, that Article 18 of the 1980 Convention does not provide the basis for me making a return order. Paragraph 43 of Moylan LJ's judgment makes clear that Article 18 in this case would apply to the authorities, administrative and judicial, in Costa Rica and not to those in England and Wales. I am considering summary return under the inherent jurisdiction on the basis of the children's habitual residence.

So having established that I have jurisdiction to do so, and that being the ratio of the case in the Court of Appeal, albeit it could be said not to be binding on me because of the involvement of BIIa, I am entirely satisfied I can make a summary return order today. The issue is should I.

At paragraph [47], Moylan LJ says this:

I am in full agreement with what Moylan LJ says, and I am bound by it anyway, that in the normal run of events, the children’s return should be considered under the 1980 Hague Convention by a judge in Costa Rica. That is what is expected to be the case. I must caution myself before too easily making a summary return order. The reasons for not making a summary return order where there are likely to be parallel Hague Convention proceedings are set out at paragraphs [48] and [49] of Moylan LJ's decision.

The issue for me, therefore is, having considered that authority, is there a good reason for me to make a summary return order rather than to await events in Costa Rica. In my judgment, I am entirely satisfied that this is, unusually, such a case in which a good reason is identified. There is not so much one good reason but a number of good reasons which come together which mean in the exercise of my discretion, I make a summary return order today.

The reasons are as follows: first, whilst I anticipate the Costa Rican authorities will swiftly deal with the 1980 Hague summary return application, the reality is it remains in draft and will be issued soon, but it has not yet been issued. For reasons I will come on to explain, there is question mark, indeed, about whether it may be issued if it is the case that the children are no longer in Costa Rica. Secondly, the respondent's conduct, as far as I can see, is very poor. There was a clearly agreed holiday. The children should have been returned on 10 August. He has failed to do so. As I have already said, his reasons for doing so are poor ones. Any concerns he has should and must have been raised with the applicant in this jurisdiction and the authorities in this jurisdiction where the children are habitually resident. His decision to cease all video contact between the mother of these very young girls and the girls themselves is deplorable. He has not engaged in any way in these proceedings despite there being four hearings with multiple opportunities for him to attend remotely or file evidence. He has done neither.

There is, in my judgment, a risk -- it might be a low risk, but there is a risk -- he may leave Costa Rica and go to a neighbouring country which is not a 1980 Hague Convention country. He is last believed to have been only 50 miles from the border with Nicaragua which, I am told, is not a 1980 Hague Convention country. There is, therefore, a low risk of the onward abduction of these children from a Hague jurisdiction to a non-Hague jurisdiction which would make their return all the more difficult.

It is also the case -- and I have already mentioned this in my summary welfare consideration -- these are two young girls who have all their lives with their mother, who have now been separated from her for a long period of time. I have already explained this is likely to be causing them emotional suffering which must come to an end as soon as possible. I also add as a reason that the Costa Rican lawyer that the applicant has instructed positively welcomes an order of this court, so it would not be the case that I would be in any way acting in a manner inconsistent with the comity, which of course I extend to the authorities in Costa Rica.

It is also the case, taking into account what Moylan LJ says, when I consider Article 23 of the 1996 Hague Convention, I am relatively confident that any summary return order I make would be recognised and therefore enforceable in either Costa Rica or in Nicaragua. I say one or the other because, as I have made clear from the chronology, the children may be in Costa Rica, they may already be in Nicaragua, but it is possible they are somewhere else entirely. I am satisfied that the respondent has had every opportunity to engage in these proceedings, set out his case in submissions or by way of evidence, over four hearings of which he has been served with the orders and of which he has notice, and he has simply decided not to engage.

I am also satisfied that every effort has been made in the time available for the children's wishes and feelings to be ascertained, for their views to be ascertained. They are only aged 4 and 6 but it has been right, as Theis J recognised, for efforts to be made to obtain their wishes and feelings on the summary return. Cafcass have tried and I am satisfied that their efforts have been reasonable and proportionate and the reason that Cafcass have not been able to put the wishes of the children before me is because of the actions of the respondent, who received the communication from Cafcass and then ceased any communication with them. Therefore, there can be no Article 23 1996 concerns that any order I have made should not be recognised and enforced because of a lack of children's wishes in circumstances where the respondent has prevented that taking place. I say, furthermore, in any event, in my judgement -- of course, it is a matter for other jurisdictions -- that given the young ages of the girls, their wishes and feelings are not at the forefront of this matter.

Therefore, I am satisfied that whilst Moylan LJ is entirely right to raise Article 23 difficulties, this is not one of those cases where there should be such difficulties and all the very careful steps taken by Theis J and, I hope, by me will lead to an order that can be enforced to ensure the return of these children, whether they are in a Hague jurisdiction like Costa Rica or a non-Hague jurisdiction like Nicaragua.

It is very important that I emphasise that the making of a summary return order under the High Court's inherent jurisdiction is an unusual step. There is no test of compelling circumstances or exceptionality. There is a requirement to identify a good reason and it will not often be the case that a good reason can be identified when the 1980 Hague Convention so successfully operates in many jurisdictions around the world. This is one of these cases and I have considered the matter carefully at the hearing on Monday and again today. That is why I listed the case with sufficient time today to properly consider the issues and not make a rushed summary return order.

I have reflected on the children's welfare. I have reflected on the role of the respondent father and I have been careful to ensure due comity with Costa Rica. For the reasons I have already explained, I am entirely clear that these two little girls must be returned forthwith from whatever jurisdiction they are in to the care of their mother in England and Wales.

Therefore, I will make a return order against the respondent that he must return the two children to the jurisdiction of England and Wales and the care of their mother by 23.59 on Monday 25 August 2025. I am in no doubt that I must attach a penal notice to that order and should the respondent fail to comply with my summary return order, he faces the risk of imprisonment or having his assets seized.

Those are my reasons, unusually, for making a summary return order in the circumstances of these proceedings.