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April 01, 2013

Order Returning Child to Scotland Did Not Render Father's Appeal Moot

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

A couple married in Germany where they later had a daughter. The father was a U.S. citizen serving in the military and the mother was a United Kingdom citizen. During the father’s later deployment to Afghanistan, the mother took the child to Scotland. 

When the father was transferred to Alabama, the mother moved with the child there. Soon after, the father filed for divorce and child custody in Alabama. The mother was eventually deported and the child remained in Alabama with the father.

A few months later, the mother petitioned for the child’s return to Scotland under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (ICARA).

The United States District Court for the Northern District of Alabama held Scotland was the child’s country of habitual residence and granted the petition for return. The mother returned with the child to Scotland where she brought custody proceedings. She was granted interim custody and a preliminary injunction blocking the father from removing the child from Scotland. The father appealed.

The United States Court of Appeals for the Eleventh Circuit dismissed the appeal as moot. It reasoned that once a child is returned to a foreign country, a U.S. court lacks authority to grant relief. 

In Chafin v. Chafin, No. 11-1347 (U.S., February 19, 2013), the United States Supreme Court unanimously vacated and remanded the Eleventh Circuit’s ruling. The court held that returning a child to a foreign country under the Hague Convention return order does not render an appeal of that order moot.

Writing for the Court, Chief Justice Roberts explained “…no case or controversy exists, and a suit becomes moot, ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” As long as the parties have a concrete interest in the outcome of litigation, a case is not moot. Since the parents continuously contested where their child should be raised, the disputed issues were “very much alive,” according to the Court.

The father sought appellate relief by requesting reversal of the district court’s order finding Scotland to be the child’s habitual residence and an order returning the child to the United States. The mother argued the case was moot because the district court lacked authority to issue a re-return order under the Hague Convention or its own equitable powers. The Court found the mother’s argument confused mootness with the merits. Further, it found the father’s claim to have the child returned to the U.S. “cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction.”

The mother claimed that even if the habitual residence ruling was reversed and the district court issued a re-return order, the relief would not be effective because Scotland would ignore it. The Court disagreed, finding that even if Scotland ignored a U.S. re-return order, or refused to enforce it, the case would not be moot. The Court emphasized that the U.S. courts continued to have personal jurisdiction over the mother and could require her to take action, even outside the U.S, and impose sanctions for failing to comply. Although enforcing an order could be uncertain if the mother defied it, such uncertainty did not render the case moot.

The Court concluded the parties had a concrete interest in the outcome of the litigation that was sufficient to save the case from mootness, despite  potential difficulties with enforcement.