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Published online by Cambridge University Press: 20 January 2017
Only three years after Abbott v. Abbott, the first case in which the U.S. Supreme Court had taken up interpretation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention), the Court again considered the Convention in Chafin v. Chafin.
1 Abbott v. Abbott, 560 U.S. 1 (2010).
2 Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89, 19 I.L.M. 1501 (1980).
3 Chafin v. Chafin, 133 S. Ct. 1017 (2013).
4 42 U.S.C. §§ 11601-11611 (2013).
5 See Public Notice 957, 51 Fed. Reg. 10494 (Mar. 26, 1986) for a detailed explanation of the Convention. The Department of State prepared this analysis and submitted it to the Senate in connection with the Senate’s consideration of the treaty.
6 See, e.g., Convention, supra note 2, at Preamble (“. . . to establish procedures to ensure [children’s] prompt return to the State of their habitual residence”); id. at art. 1(a) (“. . . to secure the prompt return of children wrongfully removed to or retained in any Contracting State”); id. at art. 2 (“. . . they shall use the most expeditious procedures available”); id. at art. 11 (“. . . the judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children”); id. at art. 12 (“. . . the authority concerned shall order the return of the child forthwith”).
7 Hague Conference on Private International Law, Enforcement of Orders Made Under the 1980 Convention: A Comparative Legal Study, Prelim. Doc. No. 6 (2006), http://www.hcch.net/upload/wop/abd_pd06e2006.pdf.
8 Chafin, 133 S. Ct. at 1022.
9 In dismissing the appeal, the Eleventh Circuit relied on Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001). In Bekier, the district court had determined, pursuant to a petition under the Convention, that the child had been wrongfully removed from Israel and ordered the child’s return there with the father. The mother filed a notice of appeal, but a stay was not in place and the father and child left the United States. The Court of Appeals for the Eleventh Circuit dismissed the appeal as moot, concluding that it was powerless to grant the relief requested.
10 Chafin, 133 S. Ct. at 1023 (quoting Knox v. Service Employees Int’l Union, 132 S. Ct. 2277, 2287 (2012)) (internal quotation marks omitted).
11 Id. (quoting Knox, 132 S. Ct. at 2287 (2012)) (internal quotation marks omitted).
12 See Larbie v. Larbie, 690 F. 3d 295 (5th Cir. 2012).
13 Chafin, 133 S. Ct. at 1025-26.
14 Id. at 1026.
15 Id. at 1027.
16 Id.
17 Id.
18 Id. at 1029.
19 Id. at 1029-30.
20 Id. at 1030.
21 Id. (citing 28 U.S.C. § 2253(c) (2013)).
22 Hague Conference on Private International Law, Guide to Good Practice Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part II-Implementing Measures, § 6.6 (2003), http://www.hcch.net/upload/abdguideii_e.pdf; Hague Conference on Private International Law, Guide to Good Practice Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Part IV-Enforcement, § 2.5 (2010), http://www.hcch.net/upload/guide28enf-e.pdf.
1 Whether Scotland would do so is unclear; Ms. Chafin cited no authority for her assertion in her brief or at oral argument. In a recently issued decision from the Family Division of the High Court of Justice of England and Wales, a judge of that court rejected the “concept of automatic re-return of a child in response to the overturn of [a] Hague order.” DL v. EL, [2013] EWHC 49, ¶59 (Judgt. of Jan. 17). The judge in that case did not ignore the pertinent re-return order—issued by the District Court in Larbie v. Larbie, 690 F. 3d 295 (CA5 2012), cert. pending, No. 12–304—but did not consider it binding in light of the proceedings in England.
Earlier in those proceedings, the Family Division of the High Court directed the parties to provide this Court with a joint statement on the status of those proceedings. This Court is grateful for that consideration.
2 Ms. Chafin suggests that the Scottish court’s ne exeat order prohibits E. C. from leaving Scotland. The ne exeat order, however, only prohibits Mr. Chafin from removing E. C. from Scotland; it does not constrain Ms. Chafin in the same way.
3 The award was predicated on the earlier judgment even though that judgment was vacated. The District Court cited Eleventh Circuit cases for the proposition that if a plaintiff obtains relief before a district court and the case becomes moot on appeal, the plaintiff is still a prevailing party entitled to attorney’s fees. We express no view on that question. The fact remains that the District Court ordered Mr. Chafin to pay attorney’s fees and travel expenses based on its earlier ruling. A reversal, as opposed to vacatur, of the earlier ruling could change the prevailing party calculus and afford Mr. Chafin effective relief.
1 The Court of Appeals instructed the District Court to vacate the return order, thus leaving the child’s habitual residence undetermined. The Convention envisions an adjudication of habitual residence by the return forum so that the forum abroad may proceed, immediately, to the adjudication of custody. See Convention, Arts. 1, 16, 19, Treaty Doc., at 7, 10, 11. See also DL v. EL, [2013] EWHC 49 (Family Div.), ¶36 (Judgt. of Jan. 17 ) (“[T]he objective of Hague is the child’s prompt return to the country of the child’s habitual residence so that that country’s courts can determine welfare issues.”); Silberman, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U. C. D. L. Rev. 1049, 1054 (2005) (typing the “return” remedy as “provisional,” because “proceedings on the merits of the custody dispute are contemplated in the State of the child’s habitual residence once the child is returned there”).
2 As the Court observes, ante, at 8, n. 1, a judge of the Family Division of the High Court of Justice of England and Wales recently concluded that “the concept of automatic re-return of a child in response to the overturn of [a] Hague order pursuant to which [the child] came [to England] is unsupported by law or principle, and would . . . be deeply inimical to [the child’s] best interests.” DL v. EL, [2013] EWHC 49, ¶59(e). If Mr. Chafin were able to secure a reversal of the District Court’s return order, the Scottish court adjudicating the custody dispute might similarly conclude that the child should not be re-returned to Alabama, notwithstanding any U. S. court order to the contrary, and that jurisdiction over her welfare should remain with the Scottish court.
3 For the federal courts, the Advisory Committees on Federal Rules of Civil and Appellate Procedures might consider whether uniform rules for expediting Convention proceedings are in order. Cf. ante, at 14 (noting that “[c]ases in American courts often take over two years from filing to resolution”).
4 The Larbie litigation, known by another name in the English courts, illustrates that the risk of rival custody proceedings, and conflicting judgments, is hardly theoretical. Compare Larbie, 690 F. 3d 295, with DL v. EL, [2013] EWHC 49.