Fawcett v. McRoberts ( 2003 )

Filed: May 6, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2406
(CA-01-59)
Jean Fawcett,
Petitioner - Appellee,
versus
Colin McRoberts; Tammy McRoberts,
Respondents - Appellants.
O R D E R
The court further amends its opinion filed April 15, 2003, and
amended April 18, 2003, as follows:
On page 12, second full paragraph -- the first sentence is
deleted, and is replaced with the following:
As Sheriff David Kelbie noted in his commentary to the
Scottish Court of Sessions’s opinion in Donofrio v. Bur-
rell, 2000 S.C.L.R. 465 at 16 (1999), a parent “clearly”
loses “[her] ‘rights of custody’ [under the Convention]
if the other parent is awarded a residence order.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Filed: April 18, 2003
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2406
(CA-01-59)
Jean Fawcett,
Petitioner - Appellee,
versus
Colin McRoberts; Tammy McRoberts,
Respondents - Appellants.
O R D E R
The court amends its opinion filed April 15, 2003, as follows:
On the cover sheet, section 7, line 6 -- the counsel listing
on brief “for Appellants” is corrected to read “for Appellee.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
JEAN FAWCETT,
Petitioner-Appellee,
v. No. 01-2406
COLIN MCROBERTS; TAMMY
MCROBERTS,
Respondents-Appellants.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CA-01-59)
Argued: January 24, 2003
Decided: April 15, 2003
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
____________________________________________________________
Reversed and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Luttig and Judge Traxler joined.
____________________________________________________________
COUNSEL
ARGUED: Patricia Emily Apy, PARAS, APY & REISS, P.C., Red
Bank, New Jersey, for Appellants. Stephen John Cullen, MILES &
STOCKBRIDGE, P.C., Towson, Maryland, for Appellee. ON
BRIEF: Jamison G. White, MILES & STOCKBRIDGE, P.C., Wash-
ington, D.C.; Victor S. Skaff, III, GENTRY, LOCKE, RAKES &
MOORE, Roanoke, Virginia, for Appellee.
____________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After Colin McRoberts and Jean Fawcett divorced, Mr. McRoberts
moved from Scotland to Virginia with the couple's son, Travis. Ms.
Fawcett filed a petition in federal court in Virginia requesting that the
court order Travis's return to Scotland pursuant to the Hague Conven-
tion on the Civil Aspects of International Child Abduction (the "Con-
vention"), and the International Child Abduction Remedies Act
("ICARA"), 42 U.S.C.A. §§ 11601-11610 (West 1995). The district
court granted Ms. Fawcett's petition and Mr. McRoberts has
appealed. Because the district court erred in its interpretation and
application of Scottish law, we reverse and remand to the district
court for further proceedings consistent with this opinion.
I.
Mr. McRoberts and Ms. Fawcett married in Scotland in 1986. Dur-
ing their marriage they had two children: Melody (whose custody is
not at issue here), in 1990, and Travis, in 1994. By 1998, their mar-
riage was experiencing difficulties, and on November 20, 1998, a
Scottish Sheriff Court issued a decree divorcing Mr. McRoberts and
Ms. Fawcett. This divorce decree made a "Residence Order in respect
of . . . TRAVIS COLIN PATRICK MCROBERTS . . . requiring that
[he] live with" Mr. McRoberts, and a "Contact Order" that allowed
Ms. Fawcett contact with Travis on weekends and other specified
times, for two weeks during the summer, and one week during each
of the October, Christmas, and Easter holidays.
Over the next two and a half years, Ms. Fawcett made more than
fifty attempts to modify her contact order. The record reveals only
two instances in which the Sheriff Court modified the order; in each
case, it imposed greater limitations on Ms. Fawcett's contact rights.
A February 11, 2000 order restricted Ms. Fawcett's visits with Travis
to "every second Saturday between 10 a.m. and 5 p.m.," and required
that the visits be supervised. A June 23, 2000 order created a four-
week contact cycle granting Ms. Fawcett no contact in Week 1, "resi-
dential contact" on the weekend of Week 2, no contact in Week 3, and
Saturday contact in Week 4.
2
In February 2001, Ms. Fawcett grew concerned that Mr. McRo-
berts might take Travis to the United States and sought an interdiction
order from the Sheriff Court to prevent Mr. McRoberts from doing so.
On February 15, the Sheriff Court "refuse[d] [the] same as Mr.
McRoberts . . . gave an undertaking to the Court that he will not
remove the aforementioned children from Scotland to the United
States. . . ." The court then adjourned the hearing "for further evi-
dence to be led."
Sometime shortly after this hearing, Mr. McRoberts and his second
wife, Mrs. Tammy McRoberts, moved to the United States with
Travis, and took efforts to conceal his whereabouts from Ms. Fawcett.
In an opinion issued March 29, 2001, the Sheriff Court, "on the
Motion of [Ms. Fawcett] Sist[ed] the cause pending the outcome of
a `Hague Convention' application to be made by [Mr. McRoberts]."1
The court held that Mr. McRoberts
(1) unlawfully and wrongfully removed [Travis] outwith the
jurisdiction of this Court without the express permission of
[Ms. Fawcett] in Contravention of her parental rights in
terms of Section 2(3) and 2(6) of the Children Scotland Act
1995; (2) failed to attend the diets of this Court on 26 and
29 March 2001 without an acceptable excuse; (3) removed
[Travis] from the jurisdiction of this Court by taking him to
the United States of America in breach of a specific under-
taking . . . not to do so pending determination of the present
proceedings; and (4) Continues to retain [Travis] in the
United States of America without disclosing his present
whereabouts thereby depriving [Ms. Fawcett] of lawful con-
tact with the said child.
The Sheriff Court then found Mr. McRoberts in contempt of court,
fined him, and instructed the Sheriff Clerk to "take all necessary steps
. . . to recover" the fine.
____________________________________________________________
1
Webster's Third New International Dictionary 2128 (1993) defines
"Sist" as "1. chiefly Scot: to bring into court: SUMMON 2. chiefly Scot:
a stay or suspension of legal proceedings; also : an order for a stay of pro-
ceedings."
3
On September 25, 2001, a lawyer acting for Ms. Fawcett filed a
Petition for Return of Child and a Request for Emergency Ex Parte
Hearing in the United States District Court for the Western District
of Virginia. The court granted her request for an emergency ex parte
hearing, which it held later that day. The court also held a hearing on
that same day at which Mr. McRoberts was present and testified. In
that proceeding, the court verbally ordered Mr. McRoberts not to
remove Travis from the jurisdiction or seek any state court order. On
October 2, 2001, the court held another hearing on Ms. Fawcett's
petition, at which Mr. McRoberts again presented the only testimony.
On October 11, the district court granted Ms. Fawcett's petition
and ordered that Travis be taken into custody by the Bedford County
Department of Social Services and returned to the jurisdiction of the
Sheriff Court in Ayr, Scotland. Fawcett v. McRoberts, 168 F. Supp.
2d 595 (W.D. Va. 2001). Mr. McRoberts complied with this order and
Travis was returned to Scotland. The court also ordered Mr. McRo-
berts to pay costs and Ms. Fawcett's attorney's fees. Mr. McRoberts
filed a timely appeal from both orders.
II.
As a threshold matter, we must determine whether Mr. McRo-
berts's appeal is moot. We have "no authority`to give opinions upon
moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case
before'" us. Church of Scientology v. United States, 506 U.S. 9, 12
(1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Though
Ms. Fawcett does not contend that the case is moot, a court must
resolve issues such as mootness, that concern its own jurisdiction,
even when the parties do not raise such issues. See Steel Co. v. Citi-
zens for a Better Env't, 523 U.S. 83, 94-95 (1998); Iron Arrow Honor
Soc'y v. Heckler, 464 U.S. 67, 70 (1983).
Of course, "compliance [with a trial court's order] does not [ordi-
narily] moot an appeal [of that order] if it remains possible to undo
the effects of compliance or if the order will have a continuing impact
on future action." 13A Charles A. Wright, et al., Federal Practice &
Procedure § 3533.2 (2d ed. 1984); see also Graddick v. Newman, 453
U.S. 928, 937 (1981) (concluding that Court had the "power . . . to
4
enter an injunction ordering restoration of the prior status quo"); id.at 945 n.* (Rehnquist, J., writing separately) ("[I]ssuance of a court's
mandate or obedience to its judgment does not bar timely appellate
review.") (citations omitted)). However, because in compliance with
the district court's order in this case Travis has returned to Scotland,
we must assure ourselves that a decision by this court can "affect the
matter in issue." Church of Scientology, 506 U.S. at 12 (internal quo-
tation marks and citation omitted). We believe that a decision favor-
able to Mr. McRoberts can clearly "affect the matter in issue" in this
case.
Indeed, our recent opinion in Miller v. Miller, 240 F.3d 393 (4th
Cir. 2001), is an implicit adoption of this view. In that case we con-
sidered the merits of an appeal from an order returning a child to Can-
ada, even though the father had complied with the order, and the child
was in Canada at the time of the appeal. Id. at 395, 404. Although we
ultimately affirmed the district court's order, we could not have con-
sidered the merits of the appeal if the case had been rendered moot
by the child's return to Canada pursuant to the district court's order.
See Steel Co., 523 U.S. at 94 (rejecting notion that courts may exer-
cise "hypothetical jurisdiction").
The overwhelming majority of other courts have also evidenced
their agreement with this position by routinely considering the merits
of an appeal from an order returning a child to a foreign country, even
when compliance with the order has resulted in the child's presence
in a foreign country. See, e.g., Ohlander v. Larson, 114 F.3d 1531,
1538-39 (10th Cir. 2000) (rejecting mother's arguments that her peti-
tion should be dismissed because it "was moot and because [the child]
was no longer in Utah" and noting that accepting such arguments
"could give parents an undue incentive to flee from Hague Conven-
tion proceedings"); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843(Ky. Ct. App. 1999) (reviewing merits of an appeal, even after child
had been returned to Greece in compliance with trial court order made
pursuant to Convention and ICARA); see also, e.g., Rydder v. Rydder,
49 F.3d 369 (8th Cir. 1995) (reviewing merits of appeal from district
court order that child be returned to foreign country pursuant to Con-
vention and ICARA and in which no stay appears to have been
issued); Dalmasso v. Dalmasso, 9 P.3d 551 (Kan. 2000) (same);
5
Sampson v. Sampson, 975 P.2d 1211 (Kan. 1999) (same); Harkness
v. Harkness, 577 N.W.2d 116 (Mich. Ct. App. 1998) (same).
Indeed, at least two appellate courts have recently granted the pre-
cise relief Mr. McRoberts seeks, i.e., reversal of a trial court's order
returning a child to a foreign country even after the child has left the
United States. See In re Marriage of Jeffers, 992 P.2d 686, 689, 692
(Co. Ct. App. 1999) (reversing "[t]he portion of the judgment return-
ing the children to Greece" notwithstanding fact that children had
already been returned to Greece in compliance with original order);
Bless v. Bless, 723 A.2d 67, 75 (N.J. Super. Ct. 1998) (reversing and
remanding to trial court, concluding "that jurisdiction has not been
obliterated by [the child's] court-ordered presence in Switzerland").
Obviously these courts too concluded that their decision would "affect
the matter in issue." Church of Scientology, 506 U.S. at 12 (internal
quotation marks and citation omitted).
Notwithstanding this wealth of authority, and without acknowledg-
ing any of it, the Eleventh Circuit recently did dismiss as moot an
appeal from a district court's order that a child be returned to a for-
eign country. Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001). The
district court had ruled that Ms. Bekier had wrongfully removed the
child from his habitual residence in Israel. Id. at 1053. Ms. Bekier
appealed, requesting that the court reverse the decision below or
remand for further evidentiary hearings. Id. at 1054. While her appeal
was pending, Mr. Bekier returned to Israel with their son. The Elev-
enth Circuit held Ms. Bekier's appeal moot because the return of the
child to Israel left the court "powerless to grant the relief requested
by Ms. Bekier." Id. at 1055; cf. March v. Levine, 136 F. Supp. 2d 831,
861 (M.D. Tenn.), aff'd, 249 F.3d 462 (6th Cir. 2001) (granting stay
of order to return child, "[r]ecognizing that immediate return of the
children to Mexico may effectively moot any appeal" (emphasis
added)).
It is unclear why the Bekier court came to this conclusion.
Although it cites several cases that purportedly support its mootness
holding, all of those cases involve markedly different facts. For exam-
ple, the Bekier court relied heavily on B&B Chemical Co., Inc. v.
United States EPA, 806 F.2d 987, 989 (11th Cir. 1986), a case hold-
ing that a challenge to the execution of a warrant to enter property
6
was moot because the warrant had already been executed.2 B&B
Chemical was moot, however, because it would have been literally
impossible to "un-enter" the property, even if the court had so
ordered. The same logic applied to finding the university's appeal
moot in University of Texas v. Camenisch, 451 U.S. 390, 398 (1981),
where the university had complied with a court order to provide
Camenisch with a sign-language interpreter, and Camenisch had grad-
uated while the appeal was pending. Because the interpreter had
already been provided, it would have been literally impossible for the
court to un-provide the service (short of reversing time — a power
that, perhaps regrettably, Congress has not yet granted the United
States Courts of Appeals). As one court has noted, in some cases, like
these, once an action has been taken "there is no way to unscramble
the egg." In re Ford, 110 F.3d 954, 963 (3d Cir. 1997).
Such cases, however, present altogether different issues than the
case at hand. Here, no law of physics would make it impossible for
Ms. Fawcett to comply with an order by the district court that she
return Travis to the United States. To the contrary, such orders are
fully within the district court's power and are commonly issued by
courts in the United States. See, e.g., Ohlander, 114 F.3d at 1535;
Goldstein v. Goldstein, 494 S.E.2d 745, 747 (Ga. Ct. App. 1998);
Hernandez v. Branciforte, 770 N.E.2d 41, 45, 49 (Mass. Ct. App.
2002); Roszkowski v. Roszkowska, 644 A.2d 1150, 1160 (N.J. Super.
Ct. 1993); In re Vernor, 94 S.W.3d 201, 206 (Tex. Ct. App. 2002);
Johnson v. Johnson, 493 S.E.2d 668, 671 (Va. Ct. App. 1997); see
also, e.g., Horlander v. Horlander, 579 N.E.2d 91, 97 (Ind. Ct. App.
____________________________________________________________
2
The Bekier court also cited two unpublished opinions in which a case
involving a petition under the Hague Convention was dismissed as moot.
See Bekier, 248 F.3d at 1055 (citing Brown v. Orange County Dep't of
Soc. Serv., 1996 U.S. App. Lexis 15921 (9th Cir. July 1, 1996); Mah-
moud v. Mahmoud, 1997 WL 43524 (E.D.N.Y. Jan. 29, 1997)). These
cases, however, like B&B Chemical, have no bearing on the mootness of
Mr. McRoberts's appeal. Though both cases involved children who had
been removed from the United States, this was not the basis of the
courts' mootness holding. Rather, both the appellant in Brown v. Orange
County, and the petitioner in Mahmoud, already had physical custody of
their children, and had thus received the primary relief they sought. Mr.
McRoberts, however, has plainly not yet received the relief he now
seeks.
7
1991) (concluding that court had jurisdiction to issue custody order
even though child was in foreign country); Ivaldi v. Ivaldi, 685 A.2d
1319, 1326 (N.J. 1996) (same); Middleton v. Middleton, 314 S.E.2d
362, 367 (Va. 1984) (same).
One concern that may have prompted the Bekier court's decision
is that while the remedy Ms. Bekier sought might not have been
impossible to grant, as it was in B&B Chemical, the Bekier court may
have believed that there would have been no mechanism for effec-
tively enforcing an order that a child living outside the United States
be returned to this country. See Bekier, 248 F.3d at 1054 ("Ms.
Bekier's potential remedies now lie in the Israeli courts. Any words
by us would be merely advisory.").
As an initial matter, it is not at all clear to us that a lack of effective
methods for enforcing a court order necessarily means that the court's
opinion "cannot affect the matter in issue," Church of Scientology,
506 U.S. at 12 (internal quotation marks and citation omitted), and
therefore renders the case moot. In Kadic v. Karadzic, 70 F.3d 232(2d Cir. 1995), for example, there was little hope that any court would
be able to enforce a judgment against Radovan Karadzic, who was,
at the time, the President of the self-proclaimed Bosnian-Serb repub-
lic "Srpska." See Jerry Adler, Suing Bin Laden, American Lawyer,
Nov. 2001 at 30 (noting that even one of the plaintiffs' lawyers didn't
"really expect the plaintiffs to collect anything from Karadzic, who is
still a fugitive from the International War Crimes Tribunal at The
Hague."). Nevertheless, the Second Circuit did not dismiss the plain-
tiffs' claims as moot, but rather after reversing the district court's
holding that no jurisdiction existed, remanded to allow the case to
proceed. Kadic, 70 F.3d at 236. Nor was enforcement regarded as a
stumbling block in the cases cited above in which courts ordered a
child returned to the United States from a foreign country. See ante
at 7-8.
However, even if, hypothetically, the lack of an enforcement mech-
anism could leave a court completely unable to "affect the matter in
issue," and render an appeal moot, Mr. McRoberts's appeal would
still not be moot because he does have a mechanism for enforcing a
judgment by this court or the district court on remand. The Child
Abduction and Custody Act 1985, the United Kingdom's analogue to
8
ICARA, codifying the Hague Convention there, provides that "[a]
decision to which [Articles 7 and 12 of the Hague Convention]
appl[y] which was made in a Contracting State other than the United
Kingdom shall be recognized in each part of the United Kingdom as
if made by a court having jurisdiction to make it in that part." 1985,
c. 60, Pt. II, § 15. Furthermore, that statute explicitly contemplates a
revocation or variation of an order issued by a Contracting State and
previously recognized by a court in the United Kingdom, and pro-
vides that in such circumstances the United Kingdom court shall
either cancel its original order, § 17(2), or vary it, § 17(3). See c.60,
Pt. II, § 17. Thus, Mr. McRoberts would be able to seek enforcement
through the United Kingdom's courts of an order that Ms. Fawcett
and Travis return to Virginia, were the district court, on remand, to
issue such an order.
Although Mr. McRoberts could have proceeded directly to the
United Kingdom's courts without seeking a reversal of the district
court's order in the United States, there can nonetheless be no ques-
tion that an order from the district court that Ms. Fawcett return to the
United States with Travis would "affect the matter in issue in [this]
case." Church of Scientology, 506 U.S. at 12 (internal quotation
marks and citation omitted). Such an order would permit Mr. McRo-
berts to appear in the Scottish courts simply to seek enforcement of
the United States judgment, rather than to re-argue the merits of any
custody dispute respecting Travis (if, indeed, there even is a dispute
over who has the right to custody of Travis).
Furthermore, even if the United Kingdom's courts did not recog-
nize the order of a United States court, such an order could still "af-
fect the matter in issue." Id. For example, Ms. Fawcett could comply
with the court's order of her own volition. Or, if Ms. Fawcett failed
to comply with the order, she could be held in contempt, and penalties
could be assessed. See, e.g., Ohlander, 114 F.3d at 1535; Hernandez,
770 N.E.2d at 49. Alternatively, it seems not too remote a possibility
that Ms. Fawcett could at some point return to the United States with
Travis, at which time Mr. McRoberts could seek to enforce such an
order. Cf. Michigan v. Doran, 439 U.S. 282, 285 n.2 (1978) (rejecting
argument that appeal from order granting writ of habeas corpus was
moot because the prisoner had been released and could no longer be
located (citation omitted)); Eagles v. United States ex rel. Samuels,
9
329 U.S. 304, 307-08 (1946) ("Though the writ has been granted and
the prisoner released, the appellate court by what it does is not render-
ing an opinion and issuing an order which cannot affect the litigants
in the case before it. Affirmance makes the prisoner's release final
and unconditional. Reversal undoes what the habeas corpus court did
and makes lawful a resumption of the custody." (citations omitted)).
In sum, it is clear that a decision reversing the district court's order
in this case does not violate the prohibition against "opinions upon
moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before
it." Church of Scientology, 506 U.S. at 12 (internal quotation marks
and citation omitted). We therefore conclude that Mr. McRoberts's
appeal is not moot, and turn now to the merits of that appeal.3
III.
In an action under the Convention and ICARA, a petitioner must
"establish, by a preponderance of the evidence, that her child[ ] w[as]
`wrongfully removed or retained within the meaning of the Conven-
tion.'" Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (quoting 42
U.S.C. § 11603(e)(1)(A)). The Convention provides that:
The removal or the retention of a child is to be considered
wrongful where —
[a] it is in breach of rights of custody attributed to a per-
son, an institution or any other body . . . under the law
of the State in which the child was habitually resident,
immediately before the removal or retention; and
____________________________________________________________
3
Even if Mr. McRoberts's appeal were otherwise moot, we would still
have ancillary jurisdiction to consider his appeal based on the district
court's order that Mr. McRoberts pay Ms. Fawcett's attorney's fees and
costs. See Arlington County Republican Comm. v. Arlington County, 983
F.2d 587, 596 (4th Cir. 1994) (denying motion to dismiss appeal as moot
because appellate court's determination of underlying action "may affect
the amount of the attorneys' fees award").
10
[b] 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 reten-
tion.
Convention, art. 3.
In this case, the district court held that Mr. McRoberts wrongfully
removed Travis from his habitual residence in Scotland, in breach of
the "rights of custody," held by both Ms. Fawcett and the Sheriff
Court. The court also held that both Ms. Fawcett and the Sheriff Court
were actually exercising their custody rights at the time of Travis's
removal. We address first Ms. Fawcett's asserted rights of custody,
and then those of the Sheriff Court.
A.
The Convention provides that the removal of a child is wrongful
if "it is in breach of rights of custody," Convention, art. 3(a), with
"rights of custody . . . includ[ing] rights relating to the care of the per-
son of the child and, in particular, the right to determine the child's
place of residence." Convention, art. 5(a). The Convention also
defines, by contrast, "rights of access," which "include the right to
take a child for a limited period of time to a place other than the
child's habitual residence." Convention, art. 5(b).
The district court correctly noted that Section 2 of the Children
(Scotland) Act provides that a parent has the right, inter alia, "`to
have the child living with him or otherwise to regulate the child's res-
idence' and `if the child is not living with him, to maintain personal
relations and direct contact with the child on a regular basis.'" Faw-
cett, 168 F. Supp. 2d at 601 (quoting Children (Scotland) Act
§§ 2(1)(a), (c)) (emphasis added by district court). The court found
that this statute gave Ms. Fawcett, as one of Travis' parents, the right
to determine his residence, and thus, "rights of custody" as defined by
the Convention.
The rights provided under § 2 of the Children (Scotland) Act, how-
ever, can be modified by court order or decree. Section 11 of that stat-
11
ute explicitly provides that a Sheriff Court may make "an order
depriving a person of some or all of his parental responsibilities or
parental rights in relation to a child." Children (Scotland) Act
§ 11(2)(a).4
In this case, the Sheriff Court did precisely that — the decree it
issued divorcing Mr. McRoberts and Ms. Fawcett modified the paren-
tal rights that Ms. Fawcett would have otherwise had under § 2 of the
Children (Scotland) Act. The "Residence Order" contained in the
decree gives Mr. McRoberts the exclusive power to determine Trav-
is's residence, thereby necessarily depriving Ms. Fawcett of that same
right. Indeed, Ms. Fawcett's counsel conceded at oral argument that
Ms. Fawcett had no right to determine Travis's residence within Scot-
land, and that that right rested exclusively with Mr. McRoberts.
As Sheriff David Kelbie noted in his commentary to the Scottish
Court of Sessions’s opinion in Donofrio v. Burrell, 2000 S.C.L.R.
465 at 16 (1999), a parent “clearly” loses “[her] ‘rights of cus-
tody’ [under the Convention] if the other parent is awarded a resi-
dence order.” Thus, Ms. Fawcett's attorney admitted before the
district court that "under the divorce decree and the subsequent
interim orders, [Mr. McRoberts had] the notion of custody." See also
In re H (A Minor), 1999 WL 1319095, at *2 (House of Lords 1999)
(noting without disapproval lower court's rejection of a parent's claim
to "rights of custody" under Convention based on contact order and
parent's failure to appeal the issue). Because the divorce decree of the
Sheriff Court deprived Ms. Fawcett of her right to determine Travis's
place of residence, the district court erred in holding that Ms. Fawcett
had "rights of custody" as that term is used in the Convention.5
____________________________________________________________
4
Ms. Fawcett's similar argument that § 3 of the Children (Scotland)
Act grants her affirmative rights as a mother, in addition to her rights as
a parent under § 2, is subject to similar analysis (and rejection) because
the rights under § 3, like those under § 2, can be modified by court orders
made pursuant to § 11.
5
The district court acknowledged that § 11 of the Children (Scotland)
Act permitted a court to modify the parental rights provided under § 2.
But after noting that "the contempt order [against Mr. McRoberts] stated
that Travis's abduction was `in Contravention of her parental rights,'" the
court found no "evidence that the sheriff court in Ayr has deprived Ms.
Fawcett of her parental rights." Fawcett, 168 F. Supp. 2d at 602 n.11
12
While Ms. Fawcett has conceded that she had no right to determine
Travis's residence within Scotland, she argues that § 2(3) of the Chil-
dren (Scotland) Act gives her some rights to determine Travis's place
of residence, and thereby confers upon her "rights of custody" under
the Convention. Section 2(3) of the Children (Scotland) Act provides
that, "[w]ithout prejudice to any court order, no person shall be enti-
tled to remove a child habitually resident in Scotland from, or to
retain any such child outwith, the United Kingdom without the con-
sent of a person described in subsection (6) below." Subsection (6),
in turn, applies subsection (3) to a person "who for the time being has
and is exercising in relation to him" either the right "to have the child
living with him or otherwise to regulate the child's residence" or "if
the child is not living with him, to maintain personal relations and
direct contact with the child on a regular basis." Children (Scotland)
Act §§ 2(6), 2(3)(a) & (c). Assuming Ms. Fawcett was exercising the
right to maintain personal relations and direct contact with Travis,
§ 2(3) does appear to prohibit Mr. McRoberts from removing Travis
from the United Kingdom without Ms. Fawcett's consent. Indeed, Mr.
McRoberts makes no argument to the contrary. What Mr. McRoberts
does contest is Ms. Fawcett's assertion that the prohibition contained
in § 2(3) conferred "rights of custody" upon her.
Two of our sister circuits have recently considered this question
and agreed with Mr. McRoberts, rejecting arguments very similar to
Ms. Fawcett's. Both Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir.
2002), and Croll v. Croll, 229 F.3d 133 (2d Cir. 2000), involved par-
ents who brought a child to the United States in contravention of a ne
exeat clause. Ms. Fawcett concedes that the substance of such clauses
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(quoting Sheriff Court's contempt order). However, as explained above,
the Sheriff Court's original divorce decree (not the later contact or con-
tempt orders) deprived Ms. Fawcett of certain parental rights. Of course,
the divorce decree also permitted Ms. Fawcett to retain other parental
rights. Thus, while Travis's removal may have been "in contravention"
of Ms. Fawcett's parental right to maintain contact with Travis, the
removal was not "wrongful" within the terms of the Convention because
the Sheriff Court had previously deprived Ms. Fawcett of the parental
right to determine Travis's place of residence, and therefore she did not
retain "rights of custody" of Travis under the Convention.
13
is indistinguishable from that of § 2(3) of the Children (Scotland) Act.
Both the Second and Ninth Circuits held that a ne exeat clause does
not confer "rights of custody" under the Convention upon a parent
who otherwise holds only "rights of access." Gonzalez, 311 F.3d at
944; see also Croll, 229 F.3d at 135 (same). They reasoned that such
clauses grant, "at most, a veto power." Gonzalez, 311 F.3d at 949; see
also Croll, 229 F.3d at 140 (same). Thus, like § 2(3) of the Children
(Scotland) Act, these clauses "serve[ ] only to allow a parent with
access rights to impose a limitation on the custodial parent's right to
expatriate his child. . . . [T]his hardly amounts to a right of custody."
Gonzalez, 311 F.3d at 949. We find the reasoning of those courts per-
suasive and hold that § 2(3) of the Children (Scotland) Act does not
confer "rights of custody" on Ms. Fawcett.
B.
The district court also found that "Travis was the subject of rights
of custody "attributed to . . . an institution," namely, the Sheriff Court.
Fawcett, 168 F. Supp. 2d at 603 (quoting Convention, art. 3). In so
ruling, the district court misapprehended the nature of the proceedings
pending in the Sheriff Court at the time Mr. McRoberts took Travis
from Scotland, and therefore erred in its conclusion that the Sheriff
Court was exercising "rights of custody" over Travis at the time of
Travis's removal.
In reaching the conclusion that the Sheriff Court in Scotland was
exercising "rights of custody" over Travis, the district court relied pri-
marily on a case arising from a custody dispute in Ireland, In re H,
1999 WL 1319095. In In re H, a court initially awarded custody of
the child to her mother, and gave only access rights to the child's
father. Two years later, the father applied for guardianship, which
under Irish law would have conferred upon him equal rights of cus-
tody. Id. at *4. While the father's application for guardianship was
pending, the mother left Ireland with the child and the father peti-
tioned under the Convention for return of the child. The House of
Lords held that the Irish court "had rights of custody in respect of H.
at the time of her removal and that these rights were being exercised
by reason of the pending application of her father to be appointed her
guardian." Id. (emphasis added).
14
Though we are obviously not bound by a decision from the House
of Lords, judicial "opinions of our sister signatories" to the Conven-
tion are "entitled to considerable weight." Air France v. Saks, 470
U.S. 392, 404 (1985) (internal quotation marks and citation omitted).
Thus, we will accept the holding of In re H, and assume, without
deciding, that if an "application to the court . . . raise[s] matters of
custody within the meaning of the Convention" the court may have
"rights of custody," and further that a third party (such as a parent)
may assert those rights in a petition for return of child. In re H, 1999
WL 1319095, at *3.
Even granting Ms. Fawcett the benefit of these assumptions, how-
ever, her argument fails because the application pending in the Sheriff
Court at the time Mr. McRoberts left Scotland with Travis did not
"raise matters of custody within the meaning of the Convention." Id.Indeed, Ms. Fawcett conceded at oral argument that she had not been
seeking a residence order with respect to Travis at either the February
15 hearing, or in any other application pending before the Sheriff
Court, but was rather seeking a court order prohibiting Mr. McRo-
berts from leaving Scotland.
Ms. Fawcett's application thus did not "raise matters of custody
within the meaning of the Convention." Id. Even if the Sheriff Court
had issued the order Ms. Fawcett had been seeking, the order would
not have conferred any greater "rights of custody" on Ms. Fawcett
than § 2(3) of the Children (Scotland) Act, or the ne exeat clauses dis-
cussed in Gonzalez, 311 F.3d at 944, and Croll, 229 F.3d at 135. See
ante at 13-14. Therefore, the matter pending before the Sheriff Court
did not "raise matters of custody within the meaning of the Conven-
tion," In re H, 1999 WL 1319095, at *3, and the Sheriff Court was
not "actually exercis[ing]" any "rights of custody" over Travis at the
time of his removal from Scotland. Convention, art. 3.
IV.
In sum, the district court erred in holding that Ms. Fawcett or the
Sheriff Court had "rights of custody" under the Convention.6 Accord-
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6
In light of this holding, we must also hold the district court erred in
awarding costs and attorney's fees to Ms. Fawcett.
15
ingly, we reverse and remand to the district court for further proceed-
ings consistent with this opinion.
REVERSED AND REMANDED
16