This case concerns two girls born in March 2001 and in January 2006 in the United States of America, where they were raised, attended school and developed a social network. In July 2011, the girls entered Costa Rica and from then on they started attending school there. In November 2011, the father requested the return of the girls to the United States of America. The Costa Rican Central Authority (Patronato de la Infancia – PANI) promoted the voluntary return but the mother refused it.
In December 2011, the mother attempted to register the girls’ births in the Civil Registry in Costa Rica, even though their births had evidently taken place a long time before that. In June 2012, the court of first instance in Costa Rica (Juzgado de Familia, Ni?ez y Adolescencia del I Circuito Judicial de San Jos?) ordered the return of the girls. The mother appealed that decision. On 28 September 2012, the appellate court (Tribunal de Familia del I Circuito Judicial de San Jos?) declined the appeal. The arguments which were considered in those decisions were the following:
In view of the sequence of events, it was understood that the return proceedings had prompted the mother to attempt the birth registration in Costa Rica. She argued that ordering the return of the girls meant compelling them to leave Costa Rica and to become separated from their mother against their will.
This was not in accordance with Article 32 of the Constitution of Costa Rica (Constituci?n Pol?tica) which forbids compelling a Costa Rican citizen to leave the national territory. Therefore, return was manifestly in violation of the fundamental principles of the requested State, enshrined in universal and regional instruments on human rights or on the rights of the child, reflected in Article 25 of the Inter-American Convention on the International Return of Children.
The Courts held that, according to the standard set by experts and international case law, nationality was not an aspect to be considered for the decision on the girls’ return.
It was denied that the girls were being compelled to be separated from their mother because she would be able to travel with them and they would stay together until the court in the State of habitual residence decided on the custody issue. Moreover, mirror orders could be taken to guarantee their protection in the United States during the enforcement stage.
The girls were heard several times during the proceedings. The courts considered, however, that taking into account their opinion did not mean accepting all their requests. The mother alleged being a victim of domestic violence. The courts found that this allegation had not been proved and protection measures had not been requested, either in the United States or in Costa Rica. Neither the impossibility of the mother to enter the United States of America on account of a limitation on her freedom, nor the existence of legal proceedings against her were proved.
The courts also analysed considerations relating to the best interests of the child and the special protection to the family. It was concluded that if the exception of Article 13(1)(b) had not been established, return had to be ordered, because otherwise deciding they should stay in Costa Rica would not amount to protecting the family but the parent who wrongfully removed the children from their habitual residence. It was held that ordering the return did not impact the mother-children relationship, since nothing prevented either the mother or the children from freely returning to the place of habitual residence.
Upon dismissal of the appeal, the mother filed a petition for habeas corpus to the Constitutional Division of the Supreme Court of Justice to oppose the return of the children.
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