By Wendy O. Hickey, Esq.
When your client is on the losing end of a Hague Convention case where the child is ordered returned to another country, there is a race to the Appeals Court to file the motion to stay before the child gets on a plane. It goes without saying that stays are hard to get. Once denied – the client is left with little to no hope for reversal. The U.S. Supreme Court recently reminded us that some hope is better than no hope and the case does not become moot just because the child has boarded a plane.
Jeffrey Chafin married Lyne Chafin, a citizen of the UK, in 2006 while stationed in Germany. They had one child, E.C., born in 2007. Later that year, Mr. Chafin was deployed to Afghanistan and Ms. Chafin took E.C. and moved back to Scotland. Mr. Chafin was eventually transferred to Alabama in 2010 and in February of that year Ms. Chafin took E.C. to Alabama. Shortly after their arrival, Mr. Chafin filed for divorce and sought custody of E.C. Several months later, Ms. Chafin was arrested for domestic violence and, as a result, in February 2011 was deported for overstaying her visa. E.C. remained in Alabama with her father.
In May 2011 Ms. Chafin filed a petition under the Hague Convention and the International Child Abduction Remedies Act (ICARA) which implements the convention in the United States. ICARA gives concurrent jurisdiction to both state and federal courts. Ms. Chafin sought relief in the federal court. Although the convention requires a short turn around on these cases (6 weeks to be exact) a bench trial was conducted six months later and on October 12, 2011, the judge announced the decision from the bench concluding E.C.’s country of habitual residence was Scotland. Thus the petition for return was granted. Mr. Chafin immediately moved for a stay which was denied. Ms. Chafin then boarded a plane with E.C., returned to Scotland where she filed an action for custody. The Scottish court awarded Ms. Chafin temporary custody and entered a ne exeat order prohibiting Mr. Chafin from removing E.C. from Scotland.
Mr. Chafin appealed the District Court decision to the Eleventh Circuit where the case was dismissed as moot in a one-paragraph order and remanded to the District Court. In dismissing the appeal, the court relied on Bekier v. Bekier, 248 F.3d 1051 (2001). In Bekier, “the court 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.” Bekier Supra, at 1055. Interestingly but, perhaps, not unusual, the Berkier decision stands in direct conflict with decisions out of the First Circuit Court of Appeals on the issue of mootness. See, for example, Kufner v. Kufner, 519 F.3d 33 (1st Cir., 2008) where the court held that the appeal was not moot even though the children had been returned to Germany and the German court was exercising jurisdiction over the parties’ custody dispute.
On remand, the District Court ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney’s fees and travel expenses. The Hague Convention specifically provides for an allowance of costs, legal fees and travel expenses to allow the left behind parent to recover the costs incurred in connection with a successful return order in a Hague action. Because of the time lines set out in the Convention, expenses in these cases quickly reach monumental levels. Large fee awards are not unusual at the conclusion of these cases, albeit they often go uncollected.
Mr. Chafin appealed the dismissal of his case to the U.S. Supreme Court which granted certiorari. 567 U.S. ___(2012). The issue to be decided was whether or not there remains an actual case in controversy once a child has been returned to another country under the Hague Convention. 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). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id.
Applying the standards disgussed in Knox, Mr. Chafin still had an interest in the litigation when the Eleventh Circuit dismissed his appeal and an even further interest in the litigation after remand. Mr. Chafin still argued that E.C.’s country of Habitual Residence was the USA. Mr. Chafin continued to argue that the return order was incorrect and should be overturned. Further, after remand, Mr. Chafin argued that the $94,000 order of costs should be vacated. Ms. Chafin on the other hand, argued that the decision over E.C.’s Habitual Residence was correct as was the subsequent order of costs.
In sum, on appeal, Mr. Chafin was looking for a so-called “re-return” order – essentially an order undoing what the District Court had done. Ms. Chafin argued that the District Court lacks the authority to issue a re-return order. The Supreme Court found that Ms. Chafin’s argument “confuses mootness with the merits.” Chafin v. Chafin, 568 U.S. __, ___(2013) (Slip Op. p. 7). “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.” Id. at Slip. Op. p.8.
While the Hague Convention does not specifically provide for a re-return order in cases where a higher court determines that a trial court made an error, it does not specifically foreclose such an idea either and courts do issue them. In Larbie v. Larbie, 690 F.3d 295 (CA5, 2012), the District Court issued such a re-return order. The Family Division of the High Court of Justice of England and Whales rejected the “concept of automatic re-return of a child in response to the overturn of [a] Hague order.” DL v. EL,  EWHC 49, ¶59 (Judgt. Of Jan. 17). However, the judge in that case did not ignore the re-return order, it was just not considered binding. Chafin, Supra at Slip. Op. p. 8. As it turned out in that case, Ms. Larbie decided to abide by the re-return order and returned to the US for trial.
Ms. Chafin argued an inability to comply with a re-return order if issued because of the ne exeat order in Scotland. However that order only prohibited Mr. Chafin from removing E.C. from Scotland. It did not prevent Ms. Chafin from removing E.C. from Scotland. So, she too could decide to abide by a re-return order if issued.
Ultimately, the Supreme Court found that “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. [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.” Id. at Slip Op. p. 10
A noteworthy concern was if it was decided that a return order rendered an appeal moot, courts would likely be more willing to grant emergency stays as a matter of course so as to protect appellant’s rights of appeal. Arguably, this could have further negative consequences on the child at issue. The Hague Convention contemplates the case taking six weeks. Practically speaking, with some exceptions, in the US, Hague cases “often take over two years from filing to resolution” Id. at Slip Op. p. 11. If stays of such decisions became common-place, it could easily tack on another one or two years to the process depending on the jurisdiction and whether the case was filed in State or Federal Court. One can only imagine that a child who was wrongfully retained in the US at the age of six such as E.C., might be stuck here for some four years while the case wound its way through the system – a time frame greater than half the child’s life. Undoubtedly, the U.S. Supreme Court did all of these future wrongfully retained children a service with this decision.
Wendy Hickey is a graduate of Suffolk University School of Law (2003 cum laude), Suffolk University (1998 cum laude) and Fisher College (1994). She has been working at Nissenbaum Law Offices since 1994 first as a paralegal and, since 2003, as an associate handling all aspects of family law cases. Wendy is admitted to practice in Massachusetts (2003), the U.S. District Court (Massachusetts 2004), the U.S. Court of Appeals (1st Circuit 2007), and the U.S. Supreme Court (2011).
Wendy is active in the Boston Bar Association (Member of the Family Law Section Steering Committee and Co-Chair of the Family Law Section Newsletter Committee) and is also a member of the Massachusetts Bar Association, the Women’s Bar Association and the American Bar Association. She has lectured on panels at the Boston Bar Association and the Massachusetts Bar Association on various family law topics.
Wendy co-authored an article “What You Need To Know About Vaughan Affidavits”which was published in Massachusetts Lawyers Weekly, October 27, 2006 and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter. Wendy was named a Rising Star by Boston Magazine’s publication of Super Lawyers in 2011.