CHAFIN v. CHAFIN

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–1347

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JEFFREY LEE CHAFIN, PETITIONER v. LYNNE HALES CHAFIN

on writ of certiorari to the united states court of appeals for the eleventh circuit

[February 19, 2013]

Chief Justice Roberts delivered the opinion of the Court.

The Hague Convention on the Civil Aspects of International Child Abduction generally requires courts in the United States to order children returned to their countries of habitual residence, if the courts find that the children have been wrongfully removed to or retained in the United States. The question is whether, after a child is returned pursuant to such an order, any appeal of the order is moot.

I A

The Hague Conference on Private International Law adopted the Hague Convention on the Civil Aspects of International Child Abduction in 1980. T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. In 1988, the United States ratified the treaty and passed implementing legislation, known as the International Child Abduction Remedies Act (ICARA), 102Stat. 437, 42 U. S. C. §11601 et seq. See generally Abbott v. Abbott, 560 U. S. ___, ___–___ (2010) (slip op., at 4–5).

The Convention seeks “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, S. Treaty Doc. No. 99–11, at 7. Article 3 of the Convention provides that the “removal or the retention of a child is to be considered wrongful” when “it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention” and “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Ibid.

Article 12 then states:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.” Id., at 9.

There are several exceptions to that command. Return is not required if the parent seeking it was not exercising custody rights at the time of removal or had consented to removal, if there is a “grave risk” that return will result in harm, if the child is mature and objects to return, or if return would conflict with fundamental principles of freedom and human rights in the state from which return is requested. Arts. 13, 20, id., at 10, 11. Finally, the Convention directs Contracting States to “designate a Central Authority to discharge the duties which are imposed by the Convention.” Art. 6, id., at 8; see also Art. 7, ibid.

Congress established procedures for implementing the Convention in ICARA. See 42 U. S. C. §11601(b)(1). The Act grants federal and state courts concurrent jurisdiction over actions arising under the Convention, §11603(a), and directs them to “decide the case in accordance with the Convention,” §11603(d). If those courts find children to have been wrongfully removed or retained, the children “are to be promptly returned.” §11601(a)(4). ICARA also provides that courts ordering children returned generally must require defendants to pay various expenses incurred by plaintiffs, including court costs, legal fees, and transportation costs associated with the return of the children. §11607(b)(3). ICARA instructs the President to designate the U. S. Central Authority, §11606(a), and the President has designated the Office of Children’s Issues in the State Department’s Bureau of Consular Affairs, 22 CFR §94.2 (2012).

Eighty-nine nations are party to the Convention as of this writing. Hague Conference on Private Int’l Law, Status Table, Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, http:// www.hcch.net. In the 2009 fiscal year, 324 children removed to or retained in other countries were returned to the United States under the Convention, while 154 children removed to or retained in the United States were returned to their countries of habitual residence. Dept. of State, Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction 6 (2010).

B

Petitioner Jeffrey Lee Chafin is a citizen of the United States and a sergeant first class in the U. S. Army. While stationed in Germany in 2006, he married respondent Lynne Hales Chafin, a citizen of the United Kingdom. Their daughter E. C. was born the following year.

Later in 2007, Mr. Chafin was deployed to Afghanistan, and Ms. Chafin took E. C. to Scotland. Mr. Chafin was eventually transferred to Huntsville, Alabama, and in February 2010, Ms. Chafin traveled to Alabama with E. C. Soon thereafter, however, Mr. Chafin filed for divorce and for child custody in Alabama state court. Towards the end of the year, Ms. Chafin was arrested for domestic violence, an incident that alerted U. S. Citizenship and Immigration Services to the fact that she had overstayed her visa. She was deported in February 2011, and E. C. remained in Mr. Chafin’s care for several more months.

In May 2011, Ms. Chafin initiated this case in the U. S. District Court for the Northern District of Alabama. She filed a petition under the Convention and ICARA seeking an order for E. C.’s return to Scotland. On October 11 and 12, 2011, the District Court held a bench trial. Upon the close of arguments, the court ruled in favor of Ms. Chafin, concluding that E. C.’s country of habitual residence was Scotland and granting the petition for return. Mr. Chafin immediately moved for a stay pending appeal, but the court denied his request. Within hours, Ms. Chafin left the country with E. C., headed for Scotland. By December 2011, she had initiated custody proceedings there. The Scottish court soon granted her interim custody and a preliminary injunction, prohibiting Mr. Chafin from removing E. C. from Scotland. In the meantime, Mr. Chafin had appealed the District Court order to the Court of Appeals for the Eleventh Circuit.

In February 2012, the Eleventh Circuit dismissed Mr. Chafin’s appeal as moot in a one-paragraph order, citing Bekier v. Bekier, 248 F. 3d 1051 (2001). App. to Pet. for Cert. 1–2. In Bekier, the Eleventh Circuit had concluded that an appeal of a Convention return order was moot when the child had been returned to the foreign country, because the court “became powerless” to grant relief. 248 F. 3d, at 1055. In accordance with Bekier, the Court of Appeals remanded this case to the District Court with instructions to dismiss the suit as moot and vacate its order.

On remand, the District Court did so, and also ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney’s fees, and travel expenses. Meanwhile, the Alabama state court had dismissed the child custody proceeding initiated by Mr. Chafin for lack of jurisdiction. The Alabama Court of Civil Appeals affirmed, relying in part on the U. S. District Court’s finding that the child’s habitual residence was not Alabama, but Scotland.

We granted certiorari to review the judgment of the Court of Appeals for the Eleventh Circuit. 567 U. S. ___ (2012).

II

Article III of the Constitution restricts the power of federal courts to “Cases” and “Controversies.” Accordingly, “[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U. S. 472, 477 (1990) . Federal courts may not “decide questions that cannot affect the rights of litigants in the case before them” or give “opinion[s] advising what the law would be upon a hypothetical state of facts.” Ibid. (quoting North Carolina v. Rice, 404 U. S. 244, 246 (1971) (per curiam); internal quotation marks omitted). The “case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis, 494 U. S., at 477. “[I]t is not enough that a dispute was very much alive when suit was filed”; the parties must “continue to have a ‘personal stake’ ” in the ultimate disposition of the lawsuit. Id., at 477–478 (quoting Los Angeles v. Lyons, 461 U. S. 95, 101 (1983) ; some internal quotation marks omitted).

There is thus no case or controversy, and a suit becomes moot, “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 568 U. S. ___, ___ (2013) (slip op., at 4) (quoting Murphy v. Hunt, 455 U. S. 478, 481 (1982) (per curiam); some internal quotation marks omitted). But a case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Service Employees, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted); see also Church of Scientology of Cal. v. United States, 506 U. S. 9, 12 (1992) (“if an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed” (quoting Mills v. Green, 159 U. S. 651, 653 (1895) )). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Knox, supra, at ___ (slip op., at 7) (internal quotation marks and brackets omitted).

III

This dispute is still very much alive. Mr. Chafin continues to contend that his daughter’s country of habitual residence is the United States, while Ms. Chafin maintains that E. C.’s home is in Scotland. Mr. Chafin also argues that even if E. C.’s habitual residence was Scotland, she should not have been returned because the Convention’s defenses to return apply. Mr. Chafin seeks custody of E. C., and wants to pursue that relief in the United States, while Ms. Chafin is pursuing that right for herself in Scotland. And Mr. Chafin wants the orders that he pay Ms. Chafin over $94,000 vacated, while Ms. Chafin asserts the money is rightfully owed.

On many levels, the Chafins continue to vigorously contest the question of where their daughter will be raised. This is not a case where a decision would address “a hypothetical state of facts.” Lewis, supra, at 477 (quoting Rice, supra, at 246; internal quotation marks omitted). And there is not the slightest doubt that there continues to exist between the parties “that concrete adverseness which sharpens the presentation of issues.” Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 5) (quoting Lyons, supra, at 101; internal quotations marks omitted).

A

At this point in the ongoing dispute, Mr. Chafin seeks reversal of the District Court determination that E. C.’s habitual residence was Scotland and, if that determination is reversed, an order that E. C. be returned to the United States (or “re-return,” as the parties have put it). In short, Mr. Chafin is asking for typical appellate relief: that the Court of Appeals reverse the District Court and that the District Court undo what it has done. See Arkadelphia Milling Co. v. St. Louis Southwestern R. Co., 249 U. S. 134 –146 (1919); Northwestern Fuel Co. v. Brock, 139 U. S. 216, 219 (1891) (“Jurisdiction to correct what had been wrongfully done must remain with the court so long as the parties and the case are properly before it, either in the first instance or when remanded to it by an appellate tribunal”). The question is whether such relief would be effectual in this case.

Ms. Chafin argues that this case is moot because the District Court lacks the authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers. But that argument—which goes to the meaning of the Convention and the legal availability of a certain kind of relief—confuses mootness with the merits. In Powell v. McCormack, 395 U. S. 486 (1969) , this Court held that a claim for backpay saved the case from mootness, even though the defendants argued that the backpay claim had been brought in the wrong court and therefore could not result in relief. As the Court explained, “this argument . . . confuses mootness with whether [the plaintiff] has established a right to recover . . . , a question which it is inappropriate to treat at this stage of the litigation.” Id., at 500. Mr. Chafin’s claim for re-return—under the Convention itself or according to general equitable principles—cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction, see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) , and his prospects of success are therefore not pertinent to the mootness inquiry.

As to the effectiveness of any relief, Ms. Chafin asserts that even if the habitual residence ruling were reversed and the District Court were to issue a re-return order, that relief would be ineffectual because Scotland would simply ignore it. 1 But even if Scotland were to ignore a U. S. re-return order, or decline to assist in enforcing it, this case would not be moot. The U. S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions. See Steele v. Bulova Watch Co., 344 U. S. 280, 289 (1952) ; cf. Leman v. Krentler-Arnold Hinge Last Co., 284 U. S. 448 –452 (1932). No law of physics prevents E. C.’s return from Scotland, see Fawcett v. McRoberts, 326 F. 3d 491, 496 (CA4 2003), abrogated on other grounds by Abbott v. Abbott, 560 U. S. ___ (2010), and Ms. Chafin might decide to comply with an order against her and return E. C. to the United States, see, e.g., Larbie v. Larbie, 690 F. 3d 295, 303–304 (CA5 2012) (mother who had taken child to United Kingdom complied with Texas court sanctions order and order to return child to United States for trial), cert. pending, No. 12–304. 2 After all, the consequence of compliance presumably would not be relinquishment of custody rights, but simply custody proceedings in a different forum.

Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but such uncertainty does not typically render cases moot. Courts often adjudicate disputes where the practical impact of any decision is not assured. For example, courts issue default judgments against defendants who failed to appear or participate in the proceedings and therefore seem less likely to comply. See Fed. Rule Civ. Proc. 55. Similarly, the fact that a defendant is insolvent does not moot a claim for damages. See 13C C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3533.3, p. 3 (3d ed. 2008) (cases not moot “even though the defendant does not seem able to pay any portion of the damages claimed”). Courts also decide cases against foreign nations, whose choices to respect final rulings are not guaranteed. See, e.g., Republic of Austria v. Altmann, 541 U. S. 677 (2004) (suit against Austria for return of paintings); Republic of Argentina v. Weltover, Inc., 504 U. S. 607 (1992) (suit against Argentina for repayment of bonds). And we have heard the Government’s appeal from the reversal of a conviction, even though the defendants had been deported, reducing the practical impact of any decision; we concluded that the case was not moot because the defendants might “re-enter this country on their own” and encounter the consequences of our ruling. United States v. Villamonte-Marquez, 462 U. S. 579, 581, n. 2 (1983) .

So too here. A re-return order may not result in the return of E. C. to the United States, just as an order that an insolvent defendant pay $100 million may not make the plaintiff rich. But it cannot be said that the parties here have no “concrete interest” in whether Mr. Chafin secures a re-return order. Knox, 567 U. S., at ___ (slip op., at 7) (internal quotation marks omitted). “[H]owever small” that concrete interest may be due to potential difficulties in enforcement, it is not simply a matter of academic debate, and is enough to save this case from mootness. Ibid. (internal quotation marks omitted).

B

Mr. Chafin also seeks, if he prevails, vacatur of the District Court’s expense orders. The District Court ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney’s fees, and travel expenses. See Civ. No. 11–1461 (ND Ala., Mar. 7, 2012), pp. 15–16; Civ. No. 11–1461 (ND Ala., June 5, 2012), p. 2. That award was predicated on the District Court’s earlier judgment allowing Ms. Chafin to return with her daughter to Scotland. See Civ. No. 11–1461 (ND Ala., Mar. 7, 2012), pp. 2–3, and n. 2. 3 Thus, in conjunction with reversal of the judgment, Mr. Chafin desires vacatur of the award. That too is common relief on appeal, see, e.g., Fawcett, supra, at 501, n. 6 (reversing costs and fees award when reversing on the issue of wrongful removal), and the mootness inquiry comes down to its effectiveness.

At oral argument, Ms. Chafin contended that such relief was “gone in this case,” and that the case was therefore moot, because Mr. Chafin had failed to pursue an appeal of the expense orders, which had been entered as separate judgments. Tr. of Oral Arg. 33; see Civ. No. 11–1461 (ND Ala., Mar. 7, 2012); Civ. No. 11–1461 (ND Ala., June 5, 2012). But this is another argument on the merits. Mr. Chafin’s requested relief is not so implausible that it may be disregarded on the question of jurisdiction; there is authority for the proposition that failure to appeal such judgments separately does not preclude relief. See 15B Wright, Miller, & Cooper, supra, §3915.6, at 230, and n. 39.5 (2d ed., Supp. 2012) (citing cases). It is thus for lower courts at later stages of the litigation to decide whether Mr. Chafin is in fact entitled to the relief he seeks—vacatur of the expense orders.

Such relief would of course not be “ ‘fully satisfactory,’ ” but with respect to the case as whole, “even the availability of a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot.’ ” Calderon v. Moore, 518 U. S. 149, 150 (1996) (per curiam) (quoting Church of Scientology, 506 U. S., at 13).

IV

Ms. Chafin is correct to emphasize that both the Hague Convention and ICARA stress the importance of the prompt return of children wrongfully removed or retained. We are also sympathetic to the concern that shuttling children back and forth between parents and across international borders may be detrimental to those children. But courts can achieve the ends of the Convention and ICARA—and protect the well-being of the affected children—through the familiar judicial tools of expediting proceedings and granting stays where appropriate. There is no need to manipulate constitutional doctrine and hold these cases moot. Indeed, doing so may very well undermine the goals of the treaty and harm the children it is meant to protect.

If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. See, e.g., Garrison v. Hudson, 468 U. S. 1301, 1302 (1984) (Burger, C. J., in chambers) (“When . . . the normal course of appellate review might otherwise cause the case to become moot, issuance of a stay is warranted” (citation and internal quotation marks omitted)); Nicolson v. Pappalardo, Civ. No. 10–1125 (CA1, Feb. 19, 2010) (“Without necessarily finding a clear probability that appellant will prevail, we grant the stay because . . . a risk exists that the case could effectively be mooted by the child’s departure”). In cases in which a stay would not be granted but for the prospect of mootness, a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal had little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention’s mandate of prompt return to a child’s country of habitual residence.

Routine stays could also increase the number of appeals. Currently, only about 15% of Hague Convention cases are appealed. Hague Conference on Private Int’l Law, N. Lowe, A Statistical Analysis of Applications Made in 2008 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, Pt. III–National Reports 207 (2011). If losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned. A mootness holding here might also encourage flight in future Hague Convention cases, as prevailing parents try to flee the jurisdiction to moot the case. See Bekier, 248 F. 3d, at 1055 (mootness holding “to some degree conflicts with the purposes of the Convention: to prevent parents from fleeing jurisdictions to find a more favorable judicial forum”).

Courts should apply the four traditional stay factors in considering whether to stay a return order: “ ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” Nken v. Holder, 556 U. S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U. S. 770, 776 (1987) ). In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests.

Importantly, whether at the district or appellate court level, courts can and should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so. See Federal Judicial Center, J. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 116, n. 435 (2012) (listing courts that expedite appeals). Cases in American courts often take over two years from filing to resolution; for a six-year-old such as E. C., that is one-third of her lifetime. Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.

*  *  *

The Hague Convention mandates the prompt return of children to their countries of habitual residence. But such return does not render this case moot; there is a live dispute between the parties over where their child will be raised, and there is a possibility of effectual relief for the prevailing parent. The courts below therefore continue to have jurisdiction to adjudicate the merits of the parties’ respective claims.

The judgment of the United States Court of Appeals for the Eleventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

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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 Justiceof 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 onthe status of those proceedings. This Court is grateful for thatconsideration.

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.

SUPREME COURT OF THE UNITED STATES

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No. 11–1347

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JEFFREY LEE CHAFIN, PETITIONER v. LYNNE HALES CHAFIN

on writ of certiorari to the united states court of appeals for the eleventh circuit

[February 19, 2013]

Justice Ginsburg, with whom Justice Scalia and Justice Breyer join, concurring.

The driving objective of the Hague Convention on the Civil Aspects of International Child Abduction (Convention) is to facilitate custody adjudications, promptly and exclusively, in the place where the child habitually resides. See Convention, Oct. 25, 1980, T. I. A. S. No. 11670, Arts. 1, 3, S. Treaty Doc. No. 99–11, p. 7 (Treaty Doc.). To that end, the Convention instructs Contracting States to use “the most expeditious procedures available” to secure the return of a child wrongfully removed or retained away from her place of habitual residence. Art. 2, ibid.; see Art. 11, id., at 9 (indicating six weeks as the target time for decision of a return-order petition); 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 I–Central Authority Practice, §1.5.1, p. 19 (2010) (Guide to Good Practice) (“Expeditious procedures are essential at all stages of the Convention process.”). While “[the] obligation to process return applications expeditiously . . . extends to appeal procedures,” id., Part IV–Enforcement, §2.2, ¶51, at 13, the Convention does not prescribe modes of, or time frames for, appellate review of first instance decisions. It therefore rests with each Contracting State to ensure that appeals proceed with dispatch.

Although alert to the premium the Convention places on prompt return, see 42 U. S. C. §11601(a)(4), Congress did not specifically address appeal proceedings in the legislation implementing the Convention. The case before us illus-trates the protraction likely to ensue when the finality of a return order is left in limbo.

Upon determining that the daughter of Jeffrey Chafin and Lynne Chafin resided in Scotland, the District Court denied Mr. Chafin’s request for a stay pending appeal, and authorized the child’s immediate departure for Scotland. The Eleventh Circuit, viewing the matter as a fait accompli, dismissed the appeal filed by Mr. Chafin as moot. 1 As the Court’s opinion explains, the Eleventh Circuit erred in holding that the child’s removal to Scotland rendered further adjudication in the U. S. meaningless. Reversal of the District Court’s return order, I agree, could provide Mr. Chafin with meaningful relief. A determination that the child’s habitual residence was Alabama, not Scotland, would open the way for an order directing Ms. Chafin to “re-return” the child to the United States and for Mr. Chafin to seek a custody adjudication in an Alabama state court. 2 But that prospect is unsettling. “[S]huttling children back and forth between parents and across international borders may be detrimental to those children,” ante, at 12, whose welfare led the Contracting States to draw up the Convention, see 1980 Conférence de La Haye de droit international privé, Enlèvement d’enfants, E. Pérez-Vera, Explanatory Report, in 3 Actes et Documents de la Quatorzième session, ¶23, p. 431 (1982). And the advent of rival custody proceedings in Scotland and Alabama is just what the Convention aimed to stave off.

This case highlights the need for both speed and certainty in Convention decisionmaking. Most Contracting States permit challenges to first instance return orders. See Guide to Good Practice, Part IV–Enforcement, §2.3, ¶57, at 14. How might appellate review proceed consistent with the Convention’s emphasis on expedition? According to a Federal Judicial Center guide, “[e]xpedited procedures for briefing and handling of [return-order] appeals have become common in most circuits.” J. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 116 (2012). 3 As an example, the guide describes Charalambous v. Charalambous, 627 F. 3d 462 (CA1 2010) (per curiam), in which the Court of Appeals stayed a return order, expedited the appeal, and issued a final judgment affirming the return order 57 days after its entry. Once appellate review established the finality of the return order, custody could be litigated in the child’s place of habitual residence with no risk of a rival proceeding elsewhere.

But as the Court indicates, stays, even of short duration, should not be granted “as a matter of course,” for they inevitably entail loss of “precious months when [the child] could have been readjusting to life in her country of habitual residence.” Ante, at 12; see Tr. of Oral Arg. 39. See also DL v. EL, [2013] EWHC 49 (Family Div.), ¶38 (Judgt. of Jan. 17) (“[Children] find themselves in a sort of Hague triangle limbo, marooned in a jurisdiction from which their return has been ordered but becalmed by extended uncertainty whether they will in the event go or stay.”). Where no stay is ordered, the risk of a two-front battle over custody will remain real. See supra, at 2–3. See also Larbie v. Larbie, 690 F. 3d 295 (CA5 2012) (vacating return order following appeal in which no stay was sought). 4

Amicus Centre for Family Law and Policy calls our attention to the management of Convention hearings and appeals in England and Wales and suggests that procedures there may be instructive. See Brief for Centre for Family Law and Policy 22–24 (Centre Brief). To pursue an appeal from a return order in those domains, leave must be obtained from the first instance judge or the Court of Appeal. Family Procedure Rules 2010, Rule 30.3 (U. K.). Leave will be granted only where “the appeal would have a real prospect of success; or . . . there is some other compelling reason why the appeal should be heard.” Ibid. Although an appeal does not trigger an automatic stay, see Rule 30.8, if leave to appeal is granted, we are informed, a stay is ordinarily ordered by the court that granted leave. Centre Brief 23; Guide to Good Practice, Part IV–Enforcement, ¶74, at 19–20, n. 111. Appeals are then fast-tracked with a target of six weeks for disposition. Centre Brief 24. See also DL v. EL, [2013] EWHC 49, ¶¶42–43 (describing the English practice and observing that “[t]he whole process is . . . very swift, and the resultant period of delay and uncertainty much curtailed by com-parison with [the United States]”).

By rendering a return order effectively final absent leave to appeal, the rules governing Convention proceedings in England and Wales aim for speedy implementation without turning away appellants whose pleas may have merit. And by providing for stays when an appeal is well founded, the system reduces the risk of rival custody proceedings. Congressional action would be necessary if return-order appeals are not to be available in U. S. courts as a matter of right, but legislation requiring leave to appeal would not be entirely novel. See 28 U. S. C. §2253(c) (absent a certificate of appealability from a circuit justice or judge, an appeal may not be taken from the final decision of a district judge in a habeas corpus proceeding or a proceeding under 28 U. S. C. §2255); cf. Guide to Good Practice, Part IV–Enforcement, §2.5, at 16 (suggesting that, to promote expedition, Contracting States might consider a requirement of leave to appeal); id., Part II–Implementing Measures, §6.6, at 37 (measures to promote speed within the appeals process include “limiting the time for appeal from an adverse decision [and] requiring permission for appeal” (footnote omitted)).

Lynne Chafin filed her petition for a return order in May 2011. E. C. was then four years old. E. C. is now six and uncertainty still lingers about the proper forum for adjudication of her parents’ custody dispute. Protraction so marked is hardly consonant with the Convention’s objectives. On remand, the Court rightly instructs, the Court of Appeals should decide the case “as expeditiously as possible,” ante, at 13. For future cases, rulemakers and legislators might pay sustained attention to the means by which the United States can best serve the Convention’s aims: “to secure the prompt return of children wrongfully removed to or retained in” this Nation; and “to ensure that rights of custody . . . under the law of one Contracting State are effectively respected in the other Contracting States.” Art. 1, Treaty Doc., at 7.

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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 Divi-sion 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.

Print this transcript Transcript: 

ORAL ARGUMENT OF MICHAEL E. MANELY ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument this morning in Case 11-1347, Chafin v. Chafin.

Mr. Manely.

Michael E. Manely: Mr. Chief Justice, and may it please the Court:

United States courts have the power to effectuate relief in the Hague Convention cases under circumstances presented here in this international treaty.

Sergeant First Class -- First Class Chafin's appeal from the district court's decision is not moot because reversal of the district court's judgment could grant Sergeant Chafin relief in three ways, each sufficient to preclude mootness.

First, a reversal would mean that the United States is the child's habitual residence; second, the district court or court of appeals should order Ms. Chafin to bring the child back to the United States and overturn the monetary award; and, third, it would effectuate relief in the ongoing Alabama case and the Scottish case by, one, letting Alabama courts proceed to determine custody and, two, cause the Scottish court to stay or dismiss its proceeding.

Justice Ruth Bader Ginsburg: Why would it make any difference?

Once the decision, the district court decision is vacated, then the State court can go forward.

There is nothing that inhibits it from doing so.

There is no Federal court order.

So your third point, I think, is--

Michael E. Manely: Yes, Your Honor.

Under the UCCJEA, which is what the State of Alabama would use, there is a home State requirement that the child must be presently -- six months before the action is commenced.

Not so much from the district court order, but coming down from the Alabama Supreme Court, but premised upon the original district court order, it was determined that Alabama was not the home State of the child.

So it's sort of like the traffic light that we talk about in our brief.

It would allow the Alabama courts to say--

Justice Ruth Bader Ginsburg: --Now, I don't understand that.

The child is now in Scotland.

Michael E. Manely: --Yes.

Justice Ruth Bader Ginsburg: So how would these six months be satisfied?

Michael E. Manely: It would toll because the child, we would argue, is wrongfully in Scotland based upon an errant district court--

Justice Ruth Bader Ginsburg: But you can argue that on the basis of the vacation of the district court's Hague Convention order.

You -- you're not inhibited by anything, as far as I can see, that the Federal court has done.

Since it's been vacated, it's as though it never happened.

Michael E. Manely: --Except for the fact that there is an error in the determination of habitual residence.

And I understand what you're saying, but the -- the res of the controversy needs to be brought back here.

That -- that would be the appropriate remedy here, so that we have not only the habitual court -- or habitual residence determination in the district court because of reversal, but that we have the child brought back here.

And then that six--

Justice Ruth Bader Ginsburg: But you don't have -- you don't have the individual -- the residence -- habitual residence determination because it's been wiped out.

Michael E. Manely: --Yes, Your Honor.

I understand.

What our argument is, is that there is an ability to grant a remedy here, and that is the reversal of that determination, so that we go back to habitual residence in the United States.

That's what avoids mootness in this case.

There is a remedy that can be provided here.

It is not impossible.

Justice Antonin Scalia: Wouldn't the Alabama--

Justice Sonia Sotomayor: What you're saying is the return of the child essentially back to Alabama.

Michael E. Manely: Bring the child back.

Yes, Your Honor.

Justice Sonia Sotomayor: And so once the child is back in Alabama, that's the remedy, then the State court would be seized of jurisdiction sufficient then to determine the habitual residence.

Michael E. Manely: Yes, Your Honor.

Justice Sonia Sotomayor: Whatever the State -- well, presumably the child only comes back if you win.

Michael E. Manely: Yes.

Justice Sonia Sotomayor: So presuming you win, the child would come back, and the Alabama courts could then seize the custody determination.

Michael E. Manely: Right.

Proceed under--

Justice Antonin Scalia: --And the Alabama court would not have jurisdiction if the child had been wrongfully removed?

Michael E. Manely: --The Alabama--

Justice Antonin Scalia: Is that what you're saying?

Michael E. Manely: --No.

The Alabama court would have jurisdiction under the UCCJEA presently, unless this Court should determine that it is moot when a child is removed from the boundaries of our -- of our nation.

The Alabama--

Justice Antonin Scalia: Wait, wait, wait.

The opinion below has been vacated.

Michael E. Manely: --Yes, sir.

Justice Antonin Scalia: So there's -- there's nothing which says that this child -- this child's habitual residence was -- was in the U.K.--

Michael E. Manely: Yes, sir.

Yes, Your Honor.

Justice Antonin Scalia: --That being the case, the only question is will the Alabama court proceed, even -- assuming that it finds the child's habitual residence was in Alabama, would it proceed even if the child had been taken out of the jurisdiction, and I understand that it would.

Michael E. Manely: If there never had been a district court determination in the first place, certainly--

Justice Antonin Scalia: There hasn't been.

There hasn't been.

It's been vacated.

It's as though it never happened.

Michael E. Manely: --The posture below is that the Eleventh Circuit vacated the opinion in February; but, as recently as July of this year, the Alabama Supreme Court said, well, since the matter was determined moot, then only the divorce can proceed.

What we hope to do is, by going back down to the Eleventh Circuit, obtaining a reversal--

Justice Antonin Scalia: Well, that's bad law.

I mean -- you mean the Alabama court is bound by a vacated decision of a Federal court?

My goodness, I never heard of anything like that.

Michael E. Manely: --Yes, sir.

It goes--

Justice Sonia Sotomayor: Was their reasoning that the child was initially removed properly because there had been an order permitting the mother to go?

Michael E. Manely: --Yes.

Justice Sonia Sotomayor: So it was a lawful removal at that moment.

Michael E. Manely: At that moment, yes.

And by--

Justice Sonia Sotomayor: And what they're saying is, since the case is moot, nothing has vacated the order, but it didn't make her action illegal?

Michael E. Manely: --Correct.

And by reversing, then we're going back to what was argued to make the case moot in the first place.

We can bring the child back, and we'll reverse--

Justice Ruth Bader Ginsburg: When you say bring the child back, there's an impediment to that because now this court in Scotland has told her don't -- the child stays here.

There's an order that the child not be removed from Scotland, and there is also -- doesn't the mother have -- wasn't this mother deported?

Michael E. Manely: --The mother--

Justice Ruth Bader Ginsburg: So if she -- she -- if she -- the mother comes back into the United States, she's committing a criminal offense.

Michael E. Manely: --Yes, Your Honor.

Absent -- and she was present at the trial in the district court.

So there are provisions that would allow her to return for that particular reason.

And, of course, she can reapply, I think, after something like five years.

She was deported because she had overstayed her visa.

But--

Justice Ruth Bader Ginsburg: But what about the order of the court in Scotland?

Michael E. Manely: --The order of the court in Scotland, we would refer to on a State level as being a standing order.

And what it does is tell Sergeant First Class Chafin that he can't remove the child.

There is no prohibition to the mother.

There is no sense that Scotland has assumed authority over this child, should become a ward of the country.

It's more that since the mother has filed a custody action there, it's a, Dad, you can't remove the child from Scotland.

Justice Sonia Sotomayor: It's a stand-still order there.

Michael E. Manely: Yes.

Justice Ruth Bader Ginsburg: How long has the child been -- now since the return pursuant to the Federal court's order, how long has the child been residing in Scotland?

Michael E. Manely: October 13th of last year, I believe, so approximately 14 months now.

Justice Samuel Alito: What if the Alabama courts were to conduct a custody proceeding?

Since the child has now been in Scotland for over a year, would they consider the child's habitual residence to be Scotland?

Michael E. Manely: The Alabama courts--

Justice Samuel Alito: And if they did that, wouldn't they defer to the Scottish courts for custody determination?

Michael E. Manely: --No, Your Honor, I don't think so.

Again, applying UCCJEA, which all of the States have but for one, they are to look at Hague orders in the same way that they would apply UCCJEA, and there is a tolling provision.

If a child has been wrongfully removed from that jurisdiction, then the child is still presumed to have retained a home State status with Alabama.

Justice Sonia Sotomayor: Counsel, there is a judgment against your client, isn't there, for $94,000 or so?

Michael E. Manely: Yes, Your Honor.

Justice Sonia Sotomayor: Could you break down that figure?

Michael E. Manely: The lion's share of it is attorney's fees, but, also, within the Hague, there is a mandatory provision for costs; not just costs of court, but the costs of mother's flying over here from Scotland, staying here for approximately a week and a rental car.

So while that isn't the predominant share of the $94,000, it was a substantial portion of that.

Justice Sonia Sotomayor: So--

Justice Anthony Kennedy: So have the State proceedings been dismissed?

Or are they in suspense?

Michael E. Manely: Neither, Your Honor.

Where they are is the trial level court is waiting to grant a divorce, but that is kind of effectively held up by the parties in hoping that we can use Alabama Rule of Civil Procedure 60(b)(5); that if we get a reversal from the Eleventh Circuit saying habitual residence is the United States, we can reopen the custody matter.

Justice Anthony Kennedy: So it would be your position that the Alabama courts still have jurisdiction over the child and the mother?

Michael E. Manely: Certainly, if the Eleventh Circuit reverses, yes, sir.

Yes, Your Honor.

Justice Sonia Sotomayor: --Counsel, that cost that you have to pay for the mother, even though the case was mooted, that judgment is still outstanding for the moneys you have to pay?

Michael E. Manely: It still is, Your Honor.

Justice Sonia Sotomayor: If you win on this appeal, is that wiped out?

Michael E. Manely: We believe that it is.

The energy of our case is thrust into having habitual residence determination reversed and bringing the child back; but, we think that when -- the provision of ICARA that allows for the costs, the travel costs and the attorney's fees to be awarded, is also obliterated.

So that is also--

Justice Ruth Bader Ginsburg: Is that done in a separate judgment?

The--

Michael E. Manely: --It's a separate order, same case.

Justice Ruth Bader Ginsburg: --And is there any problem about the time to appeal from that having run?

Michael E. Manely: We don't think so, but, again, that's not the thrust of our case.

I understand the government's argument, and we certainly agree with that.

Our energy all along has been spent exclusively on reversing habitual residence determination.

Justice Ruth Bader Ginsburg: But as far as mootness is concerned, if you have not appealed from that order and the time has run from your appeal, you can't rely on that to avoid mootness.

Michael E. Manely: Your Honor, I believe I understand your question, and I -- and I think you're correct.

If we're talking about a determination that the United States loses power over children when they're removed from our borders, then the rest kind of falls in line.

Justice Sonia Sotomayor: Counsel, what's -- what happens--

Justice Antonin Scalia: I don't understand your answer.

Michael E. Manely: I'm sorry.

Justice Antonin Scalia: What is your -- I don't understand that answer.

Are you -- are you saying that -- that your failure to appeal that in a timely fashion makes it impossible for the Court of Appeals to obliterate that award?

Michael E. Manely: No, sir.

And it may be--

Justice Antonin Scalia: Well, that's -- that's what I thought the question was.

Michael E. Manely: --I apologize.

And it may be just the -- the tunnel vision that we have in this case.

We're solely focused on reversing the district court order on habitual residence and returning the child.

The rest is--

Justice Antonin Scalia: Well, then -- then, retain your tunnel vision.

And don't say that the case remains non-moot simply because of this other issue.

The other issue is either in the case or out of the case.

Now, is it part of your case?

Michael E. Manely: --We agree with the government's position that it keeps this case alive, and it is not moot.

But I certainly understand the issue, particularly since our focus on the case is otherwise.

Justice Samuel Alito: Well, if you -- if you could take an appeal and got a reversal of the decision -- of the order removing the child to -- allowing the child to be removed to Scotland, wouldn't that undermine the -- the judgment for costs?

I don't understand why that would be a separate order, why that would be something that has to be appealed separately.

Why wouldn't that be included with the final order in the case?

Michael E. Manely: Yes, Your Honor.

I agree.

And the -- allowing the child to leave was the linchpin that allowed the costs.

Removing that impediment also removes the costs.

Justice Antonin Scalia: Well, I mean, that's lovely, but -- so you are saying that you don't have to appeal that separately; is that what you're saying?

Michael E. Manely: I'm saying I trust that that is the resolution of this; but, again, our focus is on the child, not costs.

Justice Antonin Scalia: But you've got to answer my question.

Michael E. Manely: Yeah.

Justice Antonin Scalia: Do you have to appeal that separately or not?

If -- if the way you answered Justice Alito's question was -- was the way you did, you are saying that it's unnecessary to appeal that monetary aspect of the judgment separately, that it goes -- it goes with the rest of it.

Is that -- is that your position?

Michael E. Manely: Your Honor, I think that it is correct that if the -- the basis for the award is removed, then the award is removed; but, if the basis for the award remains, then it would be difficult to assert that there is some reason to appeal that award.

I don't think there is any great answer.

Justice Antonin Scalia: I think you're saying it doesn't have to be appealed separately.

Michael E. Manely: Yes.

Yes, Your Honor.

Justice Sonia Sotomayor: --Can you tell me what's happening, what is the status?

Given the vacated return custody order -- return order, will the Scottish court ever determine habitual residence?

Michael E. Manely: The Scottish court has no need to determine habitual residence because that was determined by the district court.

Justice Sonia Sotomayor: But that order has been vacated, so can they revisit that question is really the -- the issue.

Michael E. Manely: I don't -- they wouldn't revisit within the context of a Hague proceeding unless a Hague proceeding were brought there.

Within the context of their own custodial determination, like the Alabama court would in the divorce, there is a determination of -- of jurisdiction over the child.

Justice Antonin Scalia: But you could bring a Hague proceeding there, right?

Michael E. Manely: We could bring a Hague proceeding there.

Justice Antonin Scalia: You could say, you know, there having been no decision in the United States, we want you to decide what habitual residence is, and we think it's in the United States.

You could do that.

Michael E. Manely: We could do that.

The problem with that is that we're talking about different points in time.

For our Hague -- actually, his mother's Hague proceeding, she's the one that filed it -- for the mother's Hague proceeding, the time period that we're looking at was February of 2010 until the child left in October of 2011.

That is the time frame we'd really like to stay with.

That's an important time frame.

If we go to Scotland, we're talking about a different time frame.

It's a different animal.

Chief Justice John G. Roberts: I thought you said that that time period was tolled, the period that she was in Scotland would be tolled.

Michael E. Manely: From a United States perspective, more specifically an Alabama perspective, yes.

Yes, Your Honor.

Justice Ruth Bader Ginsburg: But in Scotland, it's -- it would be a custody proceeding.

Forget about the Hague.

The child is there.

The mother is bringing a custody proceeding.

And the question for that court is where is the child's habitual residence now?

Justice Sonia Sotomayor: And at the Hague, it's what was it then.

Michael E. Manely: Yes.

Yes.

And -- and the Scottish court -- our -- our briefs are filled with the citations of authority, but the Scottish court -- there is no reason to believe that the Scottish court wouldn't honor what the United States court has said about habitual residence, the case brought by the mother in the Federal district court in Alabama.

So that if that was the linchpin to allow--

Justice Ruth Bader Ginsburg: But that was only for determining the Hague Convention; and, if the Hague Convention is out of it, then there is a custody proceeding.

The idea of the Hague Convention is just to get the case to a forum that's an appropriate forum to decide the custody question, right?

Michael E. Manely: --Yes.

Custody is the second and crucial element of the Hague Convention as well.

If -- if there are no further questions, I'd like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Saharsky.

ORAL ARGUMENT OF NICOLE A. SAHARSKY, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER

Nicole A. Saharsky: Mr. Chief Justice, and may it please the Court:

Put simply, this case is not moot because an appellate decision on the merits would matter.

What the Court has been discussing today is there are various ways in which the appellate decision might matter.

There are ways that there would be a judgment that the father either did or did not wrongfully retain the child.

Part of the wrongful retention determination is the 900 -- or the $94,000 in money damages.

There is a question of whether the child might remain in the UK or be brought back to the U.S. And then there's the question of which courts are going to decide custody, Alabama or Scottish courts.

And we don't need to know precisely, and this Court doesn't need to figure out all of the different details of Alabama State law or of custody law under the Scottish proceedings.

All the Court needs to decide is that the appellate court's decision would make a difference here.

And it's -- it's just not the case that you could say it's moot because it doesn't make a difference.

Justice Antonin Scalia: But we don't know it'll make a difference without answering those questions.

Nicole A. Saharsky: Well, I'm glad--

Justice Antonin Scalia: I mean, you want us to -- to say it may make a difference, and that's enough, right?

Nicole A. Saharsky: --Well, this Court has said that as long as there's any possibility of effectual relief, that the case is not moot.

So--

Justice Antonin Scalia: Well, you should put it that way, then.

It doesn't -- you don't know that it makes a difference, but you don't have to know, right?

Nicole A. Saharsky: --That's what I would say is that you don't have to know.

But just, if there is nothing else but a declaratory judgment that the father either did or did not wrongfully retain the child in the U.S., that is a piece of paper in the world that has consequences to these parties.

It has consequences in terms of the money judgment that's been entered, and it has consequences in terms of where custody will be determined.

The whole point of bringing a Hague Convention case is to get the child in the place of habitual residence, so that those courts, under their own law, can decide custody.

Justice Ruth Bader Ginsburg: Ms. Saharsky, not to -- I mean, the whole object of the Hague Convention is to stop this shuttling the child back and forth.

But, because of this unfortunate situation we have where the district judge wouldn't give a stay, you're -- what you're -- what you're urging is exactly what this Convention was meant to stop.

This child has been in Scotland for 14 months.

Now, you say bring it back to the United States, and we start over.

The whole object of the return procedure is so that you get the child to a place that's a proper place to determine custody; isn't that right?

Nicole A. Saharsky: Yes.

We share your concerns about not wanting the child to be shuttled back and forth.

And we think that the way to accommodate those concerns are by stays in appropriate cases, where the four factor test that -- with respect to a likelihood of success on the merits and a balancing of the equities is met; and, that when stays are put in place pending appellate proceedings, that those proceedings be expedited, the decisions made quickly.

Justice Anthony Kennedy: And would you go further and say that if a stay is not in place, that that still does not deprive the Court of Appeals of jurisdiction to resolve the case on the merits?

Nicole A. Saharsky: Yes.

That's what we would say, that the case is not moot.

The Court of Appeals should be able to go forward with the case.

But if the case for a stay has not been made by the losing party, then the child should be returned to the country of habitual residence because a determination has been made that that's the country where the child should be, and there's not a good argument that the other side has put forth for a stay.

Justice Ruth Bader Ginsburg: You agree that the ideal -- the ideal procedure would be, and I quite agree, that you have a very fast track stay pending appeal and an expedited appeal.

But there is no rule that -- that requires that, so how -- how could that sensible procedure be put in place?

Nicole A. Saharsky: Well, we think that just under the normal court appellate rules, that that effectively is what happens using the American stay standard for a four factor test; not that there would be a stay in every case, but, when the showing, the appropriate four factor showing is made for a stay, that then a stay would be appropriate, and an expedited appeal would be appropriate.

But you can't--

Justice Antonin Scalia: Well, that's lovely, but there wasn't a stay here.

So what do you do when that procedure hasn't been followed?

That's the issue that we're presented with.

Nicole A. Saharsky: --That's exactly right.

Justice Antonin Scalia: And do we even know that a stay would have been appropriate here?

Nicole A. Saharsky: Well, the district court denied a stay, and petitioner did not go to the court of appeals, so we don't know--

Justice Antonin Scalia: So presumably a stay would not have been appropriate.

Nicole A. Saharsky: --Well, then, if that's the case, but -- but it -- but this decision actually went to the court of appeals, and the court of appeals reversed on the merits.

It would be up to the district court on remand to determine how to fix its prior erroneous decision.

And it would use the equitable authority that it has in every case to fix a wrong decision and determine what the right thing is.

Justice Ruth Bader Ginsburg: But we wouldn't go back to what shouldn't have happened, that is, the district judge applying the four factor test -- or did the district -- there was an application for a stay.

It was denied, right?

Nicole A. Saharsky: Yes.

And the district court entered a brief order; so, the district court did not go through the various factors, but presumably that is the standard the district court would have used.

Justice Sonia Sotomayor: Could I ask a question?

Does it matter?

Meaning, whether a stay is granted or not, you are, I don't think, taking the position that only if the stay is granted is the court of appeals seized of jurisdiction.

You're saying the case is not moot, correct?

Nicole A. Saharsky: That's exactly right.

The mootness question and the stay questions are two separate questions.

And you don't want to have to say the person has to get a stay in every single case; otherwise, their case becomes moot.

They lose their appeal.

Justice Sonia Sotomayor: All right.

Now, under the Convention, if the child -- if it goes back to the district court now to fashion a remedy, it could order return, it could decide under the Convention that bringing the child back after 14 months presents a great risk to the child under the Convention and not order the return, correct?

Nicole A. Saharsky: We don't think the Convention addresses that; but, the district court could make that determination using its equitable discretion.

Justice Sonia Sotomayor: So we just don't know what the court's going to do, but some form of relief is possible.

That's why you used the word “ possible ”.

Nicole A. Saharsky: That is exactly -- that is exactly our position.

We don't know what the courts would do.

We're glad to discuss the possibilities with the Court; but, the standard is the possibility of relief, it doesn't need to--

Justice Sonia Sotomayor: But they have the power, if they choose it, but they don't have to choose it; that's the bottom line, correct?

Nicole A. Saharsky: --That's exactly right.

The position of the other side is that there is absolutely nothing that the courts can do in these circumstances once the child leaves.

And we just think that the Convention doesn't say that.

It doesn't mandate that.

It's a question of U.S. mootness law.

And this Court has said as long as there's--

Justice Sonia Sotomayor: Are you aware of -- I happen to be because I know this area very well -- the English courts have an amici filed with us yesterday, and they are sort of sensibly keeping track of what we're doing and trying to adjust their proceedings accordingly and in the manner they think is most helpful to us.

Whether it is or not, I can't comment on.

Is this common in the custody area?

Is there discussions between courts about what they're doing and the why of it?

Nicole A. Saharsky: --Well, in the Convention, there is kind of two aspects of this.

One is in child custody proceedings, under the UCCJEA, and one is in the context of the Convention.

The UCCJEA, which deals with competing States and potentially competing countries' custody determinations, has specific provisions that address cooperation and communication.

They are, like, Section 110, 111, and 112--

Justice Sonia Sotomayor: And it's required.

There is a whole system set up now, right?

Nicole A. Saharsky: --There is a whole system for that.

In the Convention, that type of comity and cooperation typically occurs through the Central Authorities.

Each country has a Central Authority that communicates with each other.

So, for example, if the UK's Central Authority would like something to be brought to the U.S. Court's attention, it might enlist the help of the U.S. Central Authority in, for example, getting the parties to--

Justice Antonin Scalia: Counsel, all that's very nice.

What does that have to do with this case?

I don't understand that.

Nicole A. Saharsky: --Well, the question is just what -- what might happen in this case in terms of if there would be competing court orders or whether the courts would -- what the courts would do in response to each other.

And I think the point, at least, that I was getting from Justice Sotomayor's question is that there is a measure of cooperation here, so that the Court need not be particularly concerned about parallel proceedings or competing proceedings in other countries.

The way that, for example, this case has played out is that while the Hague Convention dispute has been litigated in Federal court, the Alabama custody court has appropriately stayed its hand, as it's required to do under Article 16 of--

Chief Justice John G. Roberts: Counsel, do you agree with your -- with the Petitioner, just reading a sentence from its brief, that

"mootness requires that relief be impossible? "

Do you think that's the right standard?

Nicole A. Saharsky: --Well, we -- we think that the Court essentially said that in Knox, that it said -- that asked whether there is a possibility of relief, if the question is one of literal impossibility, we don't think that the Court needs to ask--

Chief Justice John G. Roberts: What this Court -- Court has always said, if it's an Article 3 inquiry under standing, and it said that it's not supported by injury that is speculative or conjectural.

It seems to me when you start talking about, well, the Scottish court might do this or the Alabama courts might do this, that -- that sounds pretty speculative and conjectural.

Nicole A. Saharsky: --Well, I think the Court has made those comments more in the context of the standing inquiry at the beginning of a case, as opposed to the mootness inquiry after a case has gone on for a while, and the burdens there are different.

At the standing -- at the beginning of a case in the standing inquiry, the party coming into court really had the burden of showing that this case -- that there's something to be adjudicated in court.

As the case continues, it's the party who doesn't want the case to be in court anymore to show that there's nothing the Court can do; that even though the Court has put those resources--

Justice Antonin Scalia: Well, the burden is different, but I don't agree that the standard changes.

It's just who has to prove it, one side or the other.

But I--

Nicole A. Saharsky: --Right.

And our position with respect to the standard is simply from language taken from this Court's decision, going back to Mills, but also repeated in Church of Scientology and Knox, is there any effectual relief, whatever; is it possible to grant relief?

Relief can be partial, it doesn't need to be complete.

That's things that the Court has said.

You know, we don't interpret that to be a, you know, literal impossibility standard.

We just understand that to be asking the question, is there something the courts can do, even if it's not complete--

Chief Justice John G. Roberts: So do you think it's -- I mean, I know you've got a laundry list of things, but, as I understand it, you think it's enough that if the Court issues an opinion, the Scottish court might do something as a result of that?

Nicole A. Saharsky: --Well, I think that the Court issuing an opinion has effects in America, regardless of what happens in Scotland, because you have a declaratory judgment that sets out the rights of the parties.

Chief Justice John G. Roberts: I thought one of the arguments, maybe it was the Petitioner's and not yours, was that one reason it wasn't moot is because the Scottish courts might look at the case differently.

Nicole A. Saharsky: Well, that's -- I think it's a set of interrelated reasons.

I mean, they're really all connected because -- can I finish the sentence?

you have a judgment in the United States about the rights of the parties.

It affects the money judgment.

It affects what might happen with custody.

I mean, it's all part and parcel of the same dispute.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Cullen.

ORAL ARGUMENT OF STEPHEN J. CULLEN ON BEHALF OF THE RESPONDENT

Stephen J. Cullen: Mr. Chief Justice, and may it please the Court:

Mr. Chief Justice, the effect that any appeal court could give would be zero in the Scottish court, nothing.

There is nothing a court can do in this judicial process--

Justice Sonia Sotomayor: Why can't they order the mother to come back with the child?

Because the Scottish court stops her?

There is competing orders all the time.

Stephen J. Cullen: --Which -- well, they can't, first.

The answer to that is no, they cannot.

Justice Sonia Sotomayor: Why not?

She was here.

She submitted to the Court's jurisdiction.

Doesn't her -- jurisdiction over her now continue until the end of the case?

Stephen J. Cullen: Well, the case did end because there is one remedy, and one remedy only, in this treaty, and that is return.

Justice Sonia Sotomayor: That doesn't matter.

The question is, isn't she seized -- doesn't the Court have jurisdiction over her until the case ends?

The case doesn't end until there has been an appeal and a judgment and the judgment affirmed or reversed.

That hasn't happened.

Stephen J. Cullen: No.

That's not correct.

I can't agree with that because then we're ignoring Article 3 and the constitutional doctrine of mootness, because that's where the constitutional doctrine comes into central--

Justice Sonia Sotomayor: You are suggesting that the Convention deprives a party, after the remedy's been ordered and effected, of the right to appeal; not because of mootness, but because the Convention takes away a fundamental right to appeal?

Stephen J. Cullen: --No.

The Convention says you must exercise the most expeditious remedies available because--

Justice Sonia Sotomayor: You're not going to suggest all those countries that permit appeals explicitly and stop removals until appeals are finished, that those -- that those those treaty -- contracting treaty parties are breaching the Convention, are you?

Stephen J. Cullen: --No.

They're not.

There are 88 countries, and this is a very, very good convention.

It works.

It works for the countries, Justice Sotomayor, that do immediate enforcement, and it works for the countries that don't do immediate enforcement pending an appeal.

But the question presented here is what a court could do in this country once the sheriff court in the Hamlet of Airdrie is seized with jurisdiction.

Because what this treaty has done is has taken jurisdiction from the United States and said, Scotland, you now have jurisdiction.

Chief Justice John G. Roberts: One thing -- one thing the Court can do is give him back $94,000.

Stephen J. Cullen: No, it cannot.

It cannot.

I was very--

Chief Justice John G. Roberts: He has no -- his ability to challenge the propriety of the order that he pay $94,000 is gone?

Stephen J. Cullen: --It's gone in this case, Mr. Chief Justice, because in the Joint Appendix, pages 16 and 17, you'll see -- I believe it's docket entry 52 on page 16, an appeal was taken off those fees.

If you go on, I believe it's page 17 of the Joint Appendix, docket entry 57, you'll see that the Petitioner voluntarily dismissed his appeal of the fees.

So having taken an appeal of the fees and having dismissed, there is nothing left for any appeal court now to do with respect to fees.

Justice Anthony Kennedy: Well, except he might have assumed that the issue of fees would still be alive if the Eleventh Circuit ruled on the merits.

Stephen J. Cullen: Right.

So--

Justice Anthony Kennedy: And he -- he was just trying to have a single appeal.

Stephen J. Cullen: --Right.

But the test that the Court would apply in that hypothetical fees determination, is totally different from the test the appeal court would apply in looking at habitual residence.

All it would look at is, is it--

Justice Anthony Kennedy: Well, appellate courts all the time have issues where they apply different standards to multiple issues in the case.

Stephen J. Cullen: --Right.

So if we assume that the fees survives -- they can pursue the fees issue.

The problem, Justice Kennedy, is that there -- there is no habitual residence to be determined back in time.

What this treaty does is it exercises a one-way return.

Justice Anthony Kennedy: Well, that of course -- on your premise that's right.

On their premise it's wrong, that -- the issue of custody is still alive under their perspective.

That's what we are arguing about, so you're just assuming your own premise.

Stephen J. Cullen: Well, the premise, though, is based in the purpose of this treaty, because back in the '70s before this treaty, Justice Kennedy, there was chaos, and in fact the government is suggesting we should go back to possibly competing custody orders between Scotland and Alabama, but--

Justice Stephen G. Breyer: I don't think that's -- you've won a judgment in lower court that says that the habitual residence of the child is Scotland.

So if they appeal, they might win one that says that was wrong, the habitual residence was the United States, but the child is in Scotland.

You understand Scottish law better than I, but they are also bound by this treaty.

So I would imagine a Scottish court, just as we would do, when they are trying to decide what's the habitual presumptive then, and now what's the habitual residence; they would look at what the United States courts decided.

They are not absolutely bound by it.

But just as we, in the last case we had, were very interested in what the Chilean courts said.

Of course it was relevant to us what the Chilean courts had held was the proper law of Chile in respect to that child.

Wouldn't the Scottish courts do the same?

Wouldn't it matter to the Scottish courts, after all, that an American court had decided that the residence was not bound?

I'd certainly give it -- wouldn't they give it consideration?

Stephen J. Cullen: --With -- Justice Breyer, with respect to the lower court's opinion, there is, as Justice Ginsburg said there is no opinion.

There is nothing.

There's--

Justice Stephen G. Breyer: I'm assuming they win.

The reason that they want to appeal is they want to win.

If I were looking at the case as you present it, I would say, of course you'll win.

Don't worry.

What are you worried about?

But -- but they have a different view.

So they think they are going to win.

Now, it means nothing if they lose.

But if they win on appeal, they then have their order that says that this child's habitual residence was the United States.

And my question is where we started, armed with that piece of paper, they walk into the Scottish court and they say, oh, Scottish judge, please read this paper.

Of course, he will read it, and I would think that that judge would take it into account in his decision.

That's what we do with the foreign -- similar foreign orders of other foreign courts, and I think we should do that and I think the Scottish courts should and will.

Now, you tell me where I'm wrong in that.

Stephen J. Cullen: --Justice Breyer, the sheriff in Airdrie would say, why are you handing me a finding about what habitual residence was 2 years ago?

The child's habitual residence 2 years later is clearly Scotland, and we -- we don't look back in time with respect to that.

Justice Stephen G. Breyer: Or -- then argument as to why they shouldn't give in to this hypothetical American judgment.

That isn't my question.

My question is won't they consider it and give it -- and the Scottish courts, to my knowledge, are not so narrow-minded.

I think they would pay attention to what other courts have said.

Justice Ruth Bader Ginsburg: You're -- I think you're -- you're--

Justice Stephen G. Breyer: Am I right or wrong?

I want to know if I'm right or wrong.

Justice Ruth Bader Ginsburg: --We -- we have a brief in -- in the case telling us that the question Justice Breyer is posing, would they look at it; they would say it's irrelevant.

Justice Stephen G. Breyer: They would?

Justice Ruth Bader Ginsburg: Because what her habitual residence was then doesn't matter one whit to us.

We want to know where she is residing now, and that's the reason why the Scottish court would say it's not relevant to the question before us.

Their question is not a treaty question.

Their question is custody of this child.

Stephen J. Cullen: Justice Ginsburg, that's correct.

Justice Breyer--

Justice Stephen G. Breyer: Well, thank you for Justice Ginsburg's answer.

She is quite helpful.

[Laughter]

Justice Antonin Scalia: I thought he had said the same thing, that the reason--

Justice Stephen G. Breyer: I was there, but I didn't understand it as fully, and now, I do.

Justice Antonin Scalia: --Well, good.

[Laughter]

Stephen J. Cullen: --Justice Breyer--

Justice Anthony Kennedy: But I am -- I am quite surprised that you would say that prior residence can never bear on present residence.

In custody disputes this happens all the time.

The child spent 5 years in this country, 4 years in that country; now for the last 2 years the child has been in this country -- the previous experience of the child has a tremendous bearing on custody.

To say that it's only now, prospective only, after the child has been removed, I just think is wrong as a matter of custody law.

Stephen J. Cullen: --Well, with respect to custody law versus Hague law, Justice Kennedy, there -- there is a difference.

The relevance of the Hague determination 2 years in the past is not, Justice Breyer, helpful, but I agree.

Justice Stephen G. Breyer: Unless there is some accommodation here, what worries me is this.

If you win this case, it's not going to be better.

Maybe for your client it will be, but for others in your position, it's not going to be better.

And what's worrying me, to put it on the table so you can respond, is that in similar situations district judges will think this child belongs in England; this child belongs in France; this child belongs in China, wherever they belong; but in the back of their mind will be the possibility that they are wrong, and they know there is a right to appeal.

And so instead of being able in these border cases -- borderline cases, instead of being able to send the child back home, they will think, I've got to keep the child here so that the other party has the right to appeal.

Now, it seems to me in general that would be bad for the child.

It would be -- and it's bad for our system.

And it would be better to work out a system that you can send the child back, and then if you're reversed on appeal, it does matter to the other country's courts.

Stephen J. Cullen: But, Justice Breyer, if -- we say, as you know, you can't have conditional returns, but you can have, with respect to stays, there is a panoply of different types of stays.

Now, what's happened in the district court in this instance--

Justice Sonia Sotomayor: Counsel, that -- that actually is not accurate.

The Convention is full of conditions for the return: The safety of the child, the support of the parent who is returning -- there is a whole set of conditions that have to be met before the child is returned.

Stephen J. Cullen: --Justice--

Justice Sonia Sotomayor: I happen to think that one could argue that returning back to the court that had -- was making the decision after an appeal is raised, that that's an inherent condition of a return order.

But that -- you're arguing against that, but there are plenty of conditions that could be imposed.

Stephen J. Cullen: --We don't -- we don't agree with that, Justice Sotomayor.

There are affirmative exceptions that can be asserted by a respondent, but there are no conditions; in fact, Article 19 of the treaty, as you know, says you cannot, as a Hague court, step into any sort of custody determinations at all.

Justice Sonia Sotomayor: No.

You can't -- the Court can't order custody issues, but it can set conditions for the nature of the return.

It could say the father pays the cost; the father has to pay for certain expenses in the country the child is being sent to; those kinds of conditions can be imposed.

Stephen J. Cullen: Those would be limited undertakings.

As you know, Justice Sotomayor, those limited types of undertakings came about because of the 13B exception and the 13B exception only, where a judge felt there was some risk in the return but the risk did not rise to the great risk.

Justice Elena Kagan: Mr. Cullen -- Mr. Cullen, it's often true in international litigation that enforcement is very difficult.

I mean, take a commercial litigation case where somebody is going after assets and the assets are not in the United States, and somebody looks and says, well, you know, a court can do whatever it wants but nothing is going to happen afterwards.

So why is this case any different from, you know, a very frequent problem in international litigation, which is sometimes judgments are difficult to enforce?

And if you look at it practically, it may -- may never be enforced, but we don't put courts to the job of saying, oh, well, let's check out the various enforcement options and make predictions about who's going to do what.

Stephen J. Cullen: Justice Kagan, not to state the obvious, but this is different because it's a child.

It's a child question, and that has to be a consideration in this treaty.

Justice Elena Kagan: Well, it's different -- that might be -- it's certainly different in terms of the interests at stake, and that might be a very good reason for Congress to step in and try to fix this system so that you don't have children shuttling back and forth.

But, you know, at the risk of sounding hard-hearted, in terms of the law, what is different?

Stephen J. Cullen: Well, what is different is -- and I need to answer the question -- two Justices have asked me about these stays, and I need to answer that so I can answer your question.

The -- the district court was presented with a single request for a stay in this case.

The request was we may or may not file an appeal.

We haven't filed a notice of appeal, so give us a stay so we can decide what we want to do.

What should have happened and what usually happens is you say, give us a stay, but if you're not going to give us a stay, give us a temporary stay.

Give us 48 hours to see if we can get a stay from the appellate court.

Chief Justice John G. Roberts: Well, that's not quite fair to say we haven't decided whether we're going to appeal.

I mean, the -- the stay motion was made immediately upon the determination of the merits by the district court, and the district court said no.

So, I mean, didn't they do everything they could have done to -- to get a stay?

Stephen J. Cullen: No.

It was a peculiar halfhearted request for a stay.

The stay was we don't even know if we're going to appeal this.

Chief Justice John G. Roberts: Well, that's out of respect to the district judge, who's just issued a ruling on the merits.

I mean, saying, you know, we have to consider your -- your ruling; not, you know, we're taking you up right away.

Stephen J. Cullen: Right.

And this was a Wednesday.

And what should have happened is, at a minimum, a 24-hour or 48-hour request for a temporary stay.

And, Mr. Chief Justice, this happens all the time in Hague cases.

Hague practitioners ask for stays, and, if a stay is not going to be granted, ask for a temporary stay.

The notion presented to this Court that there was some rush to justice here is not what happened on the ground in Alabama.

That is not what happened.

Chief Justice John G. Roberts: It seems to me, and I may be taking the opposite position from one of my colleagues, but the -- the best thing is to hold things up briefly, so that the child doesn't go overseas and then have to be brought back, particularly if you have situations where there can be an expeditious appeal.

And I think most appellate courts would appreciate the -- the benefit of that.

It seems to me, if you -- if you're correct that the decision is moot, it's not going to be a -- there is going to be a rush to judgment by the individual that wants to take the child away.

Stephen J. Cullen: No, we don't agree with that, Mr. Chief Justice, because that doesn't take account of the four factors any district court judge is supposed to exercise in her discretion in determining whether a stay should be granted or not.

Justice Anthony Kennedy: Well, again, you're just assuming that the district judge is right, but that's the whole issue.

And as the Chief Justice indicates, under your position, we give a premium to the very sort of precipitant action that the Hague Convention is designed to avoid.

Stephen J. Cullen: Justice Kennedy, no, what we're doing is we are following the letter and the text of the convention and the implementing legislation in this country.

Time and again, this peculiar word “ forthwith ” is used.

It means right now.

Time and again, the treaty tells us you must act expeditiously because the idea, Justice Kennedy, is we avoid competing litigation in countries.

We must have one country that is deciding this.

And it's--

Justice Antonin Scalia: So are you arguing that the effect of the statute implementing the treaty, which uses “ forthwith ” and all of this, is to, in effect, require that unless there is a motion for a stay pending, the decision of the trial court be carried out?

Stephen J. Cullen: --Yes, Justice Scalia.

Justice Antonin Scalia: You -- you think the -- the mere word “ forthwith ” in the statute is enough to alter our normal process of appeal.

Stephen J. Cullen: It's the -- as a treaty, it's the supreme law of the land.

It says, if you decide to issue a return, the child is to be returned forthwith.

And the plain meaning of those words is you must act immediately.

Justice Stephen G. Breyer: But I can't -- I don't understand why you want a treaty where the best interests of the child is what's at issue, and you interpret it in a way that the court of one nation with the child where you have parents from both nations pays no attention at all to what courts in other nations are saying.

I mean, my experience out of that is Chile, where, of course, we wanted to know what the law of Chile was and how the Chilean domestic relations judge understood the relations between the parents.

That was important.

And similarly, I think the Scottish judge should want to know the same thing about the courts deciding in the United States.

And the same thing is true of the United States judge wanting to know about Scotland and so forth.

I don't see how we're going to get harmony, in other words, unless you let appellate processes go forward, too.

And -- and I don't know what the treaty drafters would have had in mind if they wanted some other regime.

Stephen J. Cullen: Justice Breyer, it's not that we enter into these communications and agreements with any country.

By ratifying this particular treaty and by the United States saying, we are going to ratify it with the United Kingdom or Scotland or Brazil, we are saying much more than there's no comity here.

We are saying we trust this other country to do the right thing.

And that's, Justice Breyer, why we lodged the Scottish papers, because the Scottish papers should satisfy you that Scotland was very satisfied there was a valid return.

Justice Stephen G. Breyer: I trust Scotland to do the right thing.

And I think, to help Scotland do the right thing, it would be nice for Scotland to know what American judges have decided.

That's all.

And the reverse is equally true.

Stephen J. Cullen: But it doesn't matter, Justice Breyer, because there's been a vacatur.

There is no underlying decision.

The child is back in Scotland, and now one court can proceed.

And in fact, by continuing -- Justice Breyer, by continuing the litigation, the effect of that is to undermine the treaty, because the idea behind the treaty, particularly for military families, was to enable mobility.

And by having ongoing litigation in the United States, the only thing we can guarantee this Court is this child is not coming to America until the litigation is over.

So now we're talking two, three, four years.

Justice Sonia Sotomayor: Excuse me, can I just--

Justice Elena Kagan: Mr. Cullen, may I ask, I'm trying to figure out what exactly your argument is.

So let me give you two options, and you tell me what your argument is, all right?

One -- you can tell me it's neither, I suppose.

But one is this case is moot because there's no practical way to enforce any relief that's ordered by the Eleventh Circuit.

All right.

That's what I came in thinking your argument was.

The second is, is just no, it's just improper for the Eleventh Circuit to enter any order granting relief.

So which is it?

Is it the it's improper to enter any order at this point, or is it, you know, you can enter an order, but it's just not going to be enforced, and, therefore, this case is moot?

Stephen J. Cullen: Justice Kagan, I'm going to take your third non-offered offer.

And the answer is because the Constitution tells us there is no case.

We cannot -- we cannot -- and I see Justice Alito--

Justice Elena Kagan: I don't understand--

Stephen J. Cullen: --Because -- because Article 3 says we have to be able to grant some effectual relief in the judicial process.

And since the Mills case in 1895, right up to the Knox case this year, this Court has always said it's effectual relief in this judicial process.

So I have to pose the question, Justice--

Justice Samuel Alito: Well, then you seem to be saying that if the -- if the law does not permit the issuance of a particular kind of order, and that's what the plaintiff is seeking -- or that's what the appellant is seeking, then the case is moot.

Is that your argument?

That's a merits question, not a mootness question.

Stephen J. Cullen: --It is a mootness question because it goes -- it's not -- it goes to the heart of Constitutional mootness.

It goes to the issue of this may be uncomfortable, and this may be inconvenient; but, once we've effected a remedy -- the only remedy, Justice Alito, under this treaty -- and once it's been carried out, and once that child is home in Scotland, no matter what another court does in this judicial process, it can have no effect on the Scottish custody proceeding--

Justice Ruth Bader Ginsburg: Mr. Cullen, are you saying that the -- under the treaty, there can be no rereturn order?

Is that what you're saying?

Whether the -- whether the return order was wrong or right, there can be no rereturn?

Stephen J. Cullen: --There can be no rereturn.

There was a lawful order returning the child to the jurisdiction of Scotland.

Justice Elena Kagan: --And there could be no rereturn by the terms of the treaty.

So this is an argument that hangs on what the treaty's terms say; is that correct?

Stephen J. Cullen: Well, it is -- it is very textual, which is, of course, what surprised us so much in the government's position in this case.

Because as you know, Justice Kagan, the last time the Government presented this position, they said exactly the opposite in Janakakis.

Now, they tried to deal with this, Justice Kagan, in this footnote in their brief saying, well, we touched briefly on this point before.

They didn't touch briefly on it.

They said in absolute terms that nothing in the Convention -- so this is our government talking about the text, and we may give some compelling deference to -- to the government on text, but we don't give any deference to them we say or what the founding fathers meant, but with respect to this Janakakis case, the government, said nothing in the Convention requires courts or other authorities, and this was in Greece, to give binding effect to any judgment--

Justice Stephen G. Breyer: It does equate but now you've got me -- I think I'm on the same wavelength, and I think it was back just as well, let me see because Justice Ginsburg, I see the point of her answer now.

It's really fact-specific to this case that you're talking about.

So it just happens that the child has now been in Britain or in Scotland for 18 months.

And so the question of current habitual residence where they have been there for 18 months is a question of what's been happening over these 18 months, and what happened before the 18 months has absolutely nothing to do with it.

And the most that the Court of Appeals could say is that it was resident in America 18 months ago and that's no more relevant than saying that the cow jumped over the moon or some other thing.

Is has -- is that the point, is that the point?

Is that the point.

Justice Antonin Scalia: I thought that's what you were saying.

Justice Stephen G. Breyer: If that's the point -- yes, that is the point.

Okay.

If that's the point--

Stephen J. Cullen: --I would say it is the point because the Convention says it's the point.

Justice Stephen G. Breyer: --Well, the Convention doesn't know whether it's 18 months or 6 months or what counts as habitual residence, does it?

Stephen J. Cullen: The Convention says you look to the place where the child was located immediately prior to the--

Justice Stephen G. Breyer: That's true but you have to decide whether that's the habitual residence, and it seems to me that you're adding a factual thing, that what happened in 18 months earlier has nothing to do with whether the child is now an habitual resident of Scotland.

And what I want to know, and I'm not going to find this in the treaty, I don't think, because it's not going to say whether it's 11 months or 12, but I want to know what source I look to, to show that you're right and that what happened 18 months previously has nothing to do with the child's habitual residence as of the place where he has lived for 18 months.

Stephen J. Cullen: --Well, habitual residence being fact and law--

Justice Stephen G. Breyer: Yes.

Fact.

Stephen J. Cullen: --Right?

Justice Stephen G. Breyer: Yours is fact.

I want to know what I look to, to find out that fact.

Stephen J. Cullen: You look to 1895, you look to the Mills decision, and the Mills decision that tells you, under Article 3, a case is moot when the issues presented are no longer live and the parties lack a legally cognizable interest in their -- if the live issue of habitual residence 18 months ago is dead.

Chief Justice John G. Roberts: So everything turns, under your view, on whether or not the district court gives the losing party the 48-hour stay or whether the mother in this case decides to stay in the United States until the U.S. proceedings are done.

The incentives if you prevail are for the custodial or the parent with control over the child to leave immediately.

Even after a motion has been filed -- if a motion for a stay has been filed, that's not a stay.

Get on the first plane out and then you're home free.

That seems to me to be a very unfortunate result.

Stephen J. Cullen: Mr. Chief Justice, we don't agree, and here's why.

We don't agree because initially the district court judge did not order the instantaneous departure of this child.

She only did that after considering the motion to stay.

It was not--

Chief Justice John G. Roberts: No, no.

I know.

But the point is that the other side says that the decision was wrong.

Stephen J. Cullen: --And it's -- right.

Chief Justice John G. Roberts: And, you know, most -- not most, but many district judges don't like to immediately say after they have issued a decision, well, there is a good likelihood that I'm wrong, and therefore, I'll issue a stay.

[Laughter]

So there has to be at least a period before somebody can go up to the Court of Appeals and get a stay, and if you're right, what's happening during that 48 hours or 24 hours is that the parent with control of the child is trying to find the first flight out and once she does, it's all over.

Stephen J. Cullen: It is all over once -- once the doors close on that plane and that child arrives back in Scotland, unless the plane turns round and comes back again, it is all over.

Justice Samuel Alito: Well, if I understand your answer to Justice Kagan, your argument is dependent on the proposition that under the Convention that once the child has left this country, a U.S. court no longer has any power to order the child to come back; is that right?

Stephen J. Cullen: Yes, Justice Alito.

Justice Samuel Alito: And I don't see where that was decided either by the court in this case or in the Beckier case that the Eleventh Circuit panel here cited.

There is no discussion in either of those opinions of the -- how the Convention -- what the Convention says on this question.

Stephen J. Cullen: Well, the Beckier case goes to Mills and relies on Church of Scientology and Mills--

Justice Samuel Alito: No, no.

This is not a -- this is not a question about our general standard of mootness.

This is a question of the meaning of the Convention.

As I understood your argument to Justice Kagan, your position is dependent on a particular interpretation of the Convention.

And I don't see any discussion of that interpretive issue in either of those opinions.

Stephen J. Cullen: --Well, this is the -- this is what makes constitutional mootness uncomfortable because it's an answer that Justices and judges typically don't want to hear.

But it is the answer.

The question is there is nothing left to be done.

The one remedy has been effected, Justice Alito, and what -- what brings all this into sharp contrast now is what we lodged last week.

The Petitioner, Justice Alito, himself is fully participating in the Scottish proceedings.

Justice Samuel Alito: If the Convention said explicitly that a court in this country or whatever other sending countries involved could order the child back, this case would not be moot; is that correct?

Stephen J. Cullen: Yes.

Justice Samuel Alito: And you -- but you say that the Convention, in effect, says exactly the opposite; once the child leaves, there can't be an order requiring their return.

Stephen J. Cullen: Right.

And there would be a problem, Justice Alito, if we didn't have the motion to stay concept, if we didn't have all of the alternatives for district courts to enter different types of motions to stay.

What -- what at least will happen from the Chafin case, I'm sure, will be everyone will know that you need to ask for a motion to stay, everyone will know you need to ask for different types of motions to stay--

Justice Sonia Sotomayor: --But asking is not enough.

Stephen J. Cullen: --Well, ask--

Justice Sonia Sotomayor: Because the mother can get on the plane the moment she hears that someone's asked.

Stephen J. Cullen: --The mother can get on the plane when she is allowed to get on the plane, and in this particular case, probably because she had to come in under humanitarian parole, there was considerable urgency in this case.

And it was a very young child, and the Scottish court was ready to beseize the jurisdiction.

Why would Judge Johnson not do what the treaty was telling her to do?

Get the child back to Scotland.

I found habitual residence in Scotland, and let's let Scotland move forward.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Manely, you have four minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL E. MANELY ON BEHALF OF THE PETITIONER

Michael E. Manely: Thank you, Your Honor.

With that, I'd like to touch on four points:

First of all, these courts have inherent authority to order the child be brought back.

It is a way of reversing the wrong decision of the district court.

When we are talking about the object of the Convention, it is in part rapid return, but that is kind of putting the cart before the horse.

The critical issue is where is the appropriate habitual residence of the child, and that is the place that then needs to make the custodial decision.

Justice Stephen G. Breyer: Well, what he says is that after 18 months in Scotland, the Scottish court will decide where is the habitual residence of the child.

We are now in August of year 2.

And what happened before January of year one is now totally irrelevant.

So even if the American courts decided prior to January of year 1 the correct habitual residence was Alabama, when the Scottish courts decide what is his habitual residence as of 18 months later, they won't pay any attention at all to that American decision because it is not relevant.

That, I take it, to be his argument, which depends on the long-time, 18 months.

So what is your response?

Michael E. Manely: I think that may well be his argument.

I disagree with it entirely.

As was pointed out earlier, courts are quite used to having children have to transfer from one place to another.

The closest case on point I can think of--

Justice Ruth Bader Ginsburg: But that was the purpose of the Convention was to cut that out.

That's the whole reason for the Convention, that they wanted to stop the shuttling of children.

Do you -- are you aware of re-return?

Your -- your thesis is that the -- that now the Court of Appeals could tell the district judge, you were wrong.

And then the father armed with that can go and get a re-return order from the Scottish court under the Convention.

Have there been instances under the Convention, was this question of re-return -- is re-return authorized assuming that there was a valid return order, at least valid when it was entered and when the child was returned--

Michael E. Manely: --Your Honor--

Justice Ruth Bader Ginsburg: --What is the incidence of re-return under the Hague Convention?

Michael E. Manely: --There no cases because we don't run into this problem, quite frankly.

And -- and re-return is a catch phrase that was created here.

Bringing the child back would be a part of the court's inherent authority, part of the district court or the Court of Appeals' inherent authority, and it's the basis upon which Scotland has the child in the first place.

Justice Sonia Sotomayor: Isn't there a Spanish case?

Michael E. Manely: I'm sorry?

Justice Sonia Sotomayor: Isn't there a Spanish case?

Michael E. Manely: There is a Scottish custody case pending--

Justice Sonia Sotomayor: Not a Scottish; Spain, a case from Spain.

Michael E. Manely: --A Spain -- a Spanish case, yes, Your Honor, there is.

Justice Sonia Sotomayor: Where the child was, in fact, returned when--

Michael E. Manely: The child was sent to Poland based upon the trial court's decision in that case, and the child returned from Poland based upon the supreme court of Spain's decision in that case.

So there is a confusion between--

Justice Ruth Bader Ginsburg: Was the child returned, or was it just a decision that the appeal could not be avoided?

Was the child returned by Poland?

Michael E. Manely: --Well, I don't know ultimately if the child was returned from Poland, so much as the supreme court--

Justice Ruth Bader Ginsburg: That's -- see, that's the whole problem is that you -- you're going to have rival decrees of two countries, which is what -- exactly what the convention was meant to avoid.

Michael E. Manely: --Except that we never have.

I mean, this is a fairly young convention, we haven't had it that long, but we never have had that problem before.

It's been easy enough -- Ohlander v. Larson out of the Tenth Circuit is a great case to look at for where the United States has been very giving in sending children back.

We have not had this problem before.

Justice Sonia Sotomayor: --Counsel, there is an amici brief here that says that the Scottish courts will not pay attention to the habitual residence of a child at the time of the removal.

The amici brief that was filed with us yesterday, if I'm reading it correctly, suggests that the court believes that hasn't been settled in English law; is that correct?

Michael E. Manely: That's my reading of it as well, Your Honor.

Justice Sonia Sotomayor: That that -- so that proposition is not as settled as the amici suggests?

Michael E. Manely: Correct.

I think they are waiting to see what -- what we want to do.

So you've got Villamonte v. Marquez, where the issue there is it's not moot because it's possible an extradited person could one day voluntarily return, so it's not moot.

But in this case, there is nothing preventing the mother, who filed the case before the district court and is still a party to the case, from voluntarily returning.

That enough is -- is enough to survive this--

Chief Justice John G. Roberts: Well, that sounds awfully speculative and conjectural.

That doesn't sound -- whether you're analyzing it under standing in the first instance or mootness later, that doesn't sound to be the sort of concrete injury that's required.

Michael E. Manely: --The concrete injury has to do with the habitual residence determination in the district court, which switches if the appellate court reverses and grants habitual residence here and orders the child be brought back.

That is the concrete interest.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.