Chafin v. Chafin

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHAFIN v. CHAFIN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 11–1347. Argued December 5, 2012—Decided February 19, 2013
The Hague Convention on the Civil Aspects of International Child Ab-
duction requires the judicial or administrative authority of a Con-
tracting State to order a child returned to her country of habitual res-
idence if the authority finds that the child has been wrongfully
removed to or retained in the Contracting State. The International
Child Abduction Remedies Act (ICARA) implements the Convention
in the United States, granting federal and state courts concurrent ju-
risdiction over Convention actions and directing those courts to de-
cide cases in accordance with the Convention. ICARA also requires
defendants to pay various expenses incurred by plaintiffs associated
with the return of children.
Petitioner Mr. Chafin, a United States citizen and member of the
military, married respondent Ms. Chafin, a United Kingdom citizen,
in Germany, where they later had a daughter, E. C. When Mr. Chaf-
in was deployed to Afghanistan, Ms. Chafin took E. C. to Scotland.
Mr. Chafin was later transferred to Huntsville, Alabama, and Ms.
Chafin eventually traveled there with E. C. Soon after Ms. Chafin’s
arrival, Mr. Chafin filed for divorce and child custody in Alabama.
Ms. Chafin was subsequently deported, but E. C. remained in Ala-
bama with Mr. Chafin. Several months later, Ms. Chafin filed a peti-
tion under the Convention and ICARA, seeking E. C.’s return to Scot-
land. The District Court concluded that E. C.’s country of habitual
residence was Scotland and granted the petition for return. Ms.
Chafin immediately departed for Scotland with E. C. Ms. Chafin
then initiated custody proceedings in Scotland and was granted inter-
im custody and a preliminary injunction prohibiting Mr. Chafin from
removing E. C. from Scotland. Mr. Chafin appealed the District
Court’s order, but the Eleventh Circuit dismissed the appeal as moot,
2 CHAFIN v.CHAFIN
Syllabus
on the ground that once a child has been returned to a foreign coun-
try, a U. S. court becomes powerless to grant relief. On remand, the
District Court ordered Mr. Chafin to reimburse Ms. Chafin for court
costs, attorney’s fees, and travel expenses.
Held: The return of a child to a foreign country pursuant to a Conven-
tion return order does not render an appeal of that order moot.
Pp. 5–14.
(a) Article III restricts the power of federal courts to “Cases” and
“Controversies,” and this “requirement subsists through all stages of
[the] proceedings,” Lewis v. Continental Bank Corp., 494 U. S. 472,
477. 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,” Already, LLC v. Nike, Inc., 568
U. S. ___, ___. 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. ___, ___. As “long as the
parties have a concrete interest, however small, in the outcome of the
litigation, the case is not moot,” ibid. Pp. 5–6.
(b) Because the Chafins continue to vigorously contest the question
of where their daughter will be raised, this dispute is very much
alive. This case does not address “a hypothetical state of facts,” Lew-
is, supra, at 477, and there continues to exist between the parties
“that concrete adverseness which sharpens the presentation of is-
sues,” Camreta v. Greene, 563 U. S. ___, ___. Pp. 6–11.
(1) Mr. Chafin seeks typical appellate relief: reversal of the Dis-
trict Court determination that E. C.’s habitual residence was Scot-
land and, upon reversal, an order that E. C. be returned to the Unit-
ed States. The question is whether such relief would be effectual. In
arguing that this case is moot because the District Court has no au-
thority to issue a re-return order either under the Convention or pur-
suant to its inherent equitable powers, Ms. Chafin confuses mootness
with the merits. See, e.g., Powell v. McCormack, 395 U. S. 486, 500.
Mr. Chafin’s claim for re-return cannot be dismissed as so implausi-
ble that it is insufficient to preserve jurisdiction, and his prospects of
success are therefore not pertinent to the mootness inquiry. As to the
effectiveness of any relief, even if Scotland were to ignore a re-return
order, this case would not be moot. The U. S. courts continue to have
personal jurisdiction over Ms. Chafin and may command her to take
action under threat of sanctions. She could decide to comply with an
order against her and return E. C. to the United States. Enforcement
of the order may be uncertain if Ms. Chafin chooses to defy it, but
such uncertainty does not typically render cases moot. Pp. 7–10.
(2) Mr. Chafin also seeks, if he prevails, vacatur of the District
Court’s expense orders. That too is common relief on appeal, and the
Cite as: 568 U. S. ____ (2013) 3
Syllabus
mootness inquiry comes down to its effectiveness. In contending that
this case is moot due to Mr. Chafin’s failure to pursue an appeal of
the expense orders, which were entered as separate judgments, Ms.
Chafin again confuses mootness with the merits. Because there is
authority for the proposition that failure to appeal such judgments
separately does not preclude relief, it is for lower courts at later stag-
es of the litigation to decide whether Mr. Chafin is in fact entitled to
the relief he seeks. That relief would not be “ ‘fully satisfactory,’ ” but
“even the availability of a ‘partial remedy’ is ‘sufficient to prevent [a]
case from being moot,’ ” Calderon v. Moore, 518 U. S. 149, 150.
Pp. 10–11.
(c) Manipulating constitutional doctrine and holding these cases
moot is not necessary to achieve the ends of the Convention and IC-
ARA, and may undermine the treaty’s goals and harm the children
meant to be protected. If these cases were to become moot upon re-
turn, courts would be more likely to grant stays as a matter of course,
to prevent the loss of any right to appeal. Such routine stays would
conflict with the Convention’s mandate of prompt return. Courts
should instead apply traditional factors in considering whether to
stay a return order, see, e.g., Nken v. Holder, 556 U. S. 418, 434, thus
ensuring that each case will receive the individualized treatment
necessary for appropriate consideration of the child’s best interests.
Finally, at both the district and appellate court level, courts should
take steps to decide these cases as expeditiously as possible. Pp. 11–
14.
Vacated and remanded.
ROBERTS, C. J., delivered the opinion for a unanimous Court. GINS-
BURG, J., filed a concurring opinion, in which SCALIA and BREYER, JJ.,
joined.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
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, Wash­
ington, 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
_________________
No. 11–1347
_________________
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 Inter-
national 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 legis­
lation, known as the International Child Abduction Reme­
dies Act (ICARA), 102 Stat. 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
2 CHAFIN v. CHAFIN
Opinion of the Court
children wrongfully removed to or retained in any Con­
tracting State” and “to ensure that rights of custody and
of access under the law of one Contracting State are ef-
fectively 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 re­
moval 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 re­
tained 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 re­
tention, the authority concerned shall order the re­
turn 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 free­
dom and human rights in the state from which return is
requested. Arts. 13, 20, id., at 10, 11. Finally, the Con­
vention 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
Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court
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 trans­
portation 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 re­
moved to or retained in other countries were returned to
the United States under the Convention, while 154 chil­
dren 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,
4 CHAFIN v. CHAFIN
Opinion of the Court
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 Immigra­
tion 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 re­
moving 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
Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court
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 re­
dressed by a favorable judicial decision.” Lewis v. Conti-
nental 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 “opin­
ion[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
6 CHAFIN v. CHAFIN
Opinion of the Court
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 omit­
ted). 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 prevail­
ing 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 con-
tinues to contend that his daughter’s country of habitual
residence is the United States, while Ms. Chafin main­
tains that E. C.’s home is in Scotland. Mr. Chafin also
argues that even if E. C.’s habitual residence was Scot­
land, 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
Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court
“a hypothetical state of facts.” Lewis, supra, at 477 (quot­
ing 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, 145–146 (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 in-
herent equitable powers. But that argument—which
goes to the meaning of the Convention and the legal avail­
ability 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
8 CHAFIN v. CHAFIN
Opinion of 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, 451–452
(1932). No law of physics prevents E. C.’s return from
——————
1 Whether Scotland would do so is unclear; Ms. Chafin cited no au­
thority for her assertion in her brief or at oral argument. In a recently
issued decision from the Family Division of the High Court of Justice
of England and Wales, a judge of that court rejected the “concept of
automatic re-return of a child in response to the overturn of [a] Hague
order.” DL v. EL, [2013] EWHC 49, ¶59 (Judgt. of Jan. 17). The judge
in that case did not ignore the pertinent re-return order—issued by the
District Court in Larbie v. Larbie, 690 F. 3d 295 (CA5 2012), cert.
pending, No. 12–304—but did not consider it binding in light of the
proceedings in England.
Earlier in those proceedings, the Family Division of the High Court
directed the parties to provide this Court with a joint statement on
the status of those proceedings. This Court is grateful for that
consideration.
Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court
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 differ­
ent forum.
Enforcement of the order may be uncertain if Ms. Cha-
fin chooses to defy it, but such uncertainty does not typi­
cally render cases moot. Courts often adjudicate disputes
where the practical impact of any decision is not assured.
For example, courts issue default judgments against de­
fendants who failed to appear or participate in the pro­
ceedings and therefore seem less likely to comply. See
Fed. Rule Civ. Proc. 55. Similarly, the fact that a defend­
ant 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 Govern­
——————
2 Ms. Chafin suggests that the Scottish court’s ne exeat order prohib­
its 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.
10 CHAFIN v. CHAFIN
Opinion of the Court
ment’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 or­
dered 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 predi­
cated 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,
——————
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
Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court
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 availabil­
ity 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
——————
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.
12 CHAFIN v. CHAFIN
Opinion of the Court
children back and forth between parents and across inter­
national 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 chil­
dren—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 under­
mine 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., Garri-
son 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 habit­
ual 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 effec­
Cite as: 568 U. S. ____ (2013) 13
Opinion of the Court
tively 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 tradi­
tional stay factors ensures that each case will receive the
individualized treatment necessary for appropriate con­
sideration 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 Judi­
cial 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
14 CHAFIN v. CHAFIN
Opinion of the Court
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 dis­
pute 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.
Cite as: 568 U. S. ____ (2013) 1
GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1347
_________________
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 (Conven­
tion) is to facilitate custody adjudications, promptly and
exclusively, in the place where the child habitually re­
sides. 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] obliga­
tion to process return applications expeditiously . . . ex­
tends 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
2 CHAFIN v.CHAFIN
GINSBURG, J., concurring
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 legisla­
tion 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 accom-
pli, 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
——————
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, Interpret­
ing the Hague Abduction Convention: In Search of a Global Jurispru­
dence, 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”).
Cite as: 568 U. S. ____ (2013) 3
GINSBURG, J., concurring
court.2 But that prospect is unsettling. “[S]huttling chil­
dren back and forth between parents and across interna­
tional 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 Qua­
torzième 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 cer­
tainty 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 con­
sistent 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. Gar­
bolino, 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 Charalam-
——————
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 con­
cluded 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
4 CHAFIN v.CHAFIN
GINSBURG, J., concurring
bous v. Charalambous, 627 F. 3d 462 (CA1 2010)
(per curiam), in which the Court of Appeals stayed a re­
turn order, expedited the appeal, and issued a final judg­
ment affirming the return order 57 days after its entry.
Once appellate review established the finality of the re­
turn 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 habit­
ual 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 re­
turn 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 proce­
dures 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
——————
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.
Cite as: 568 U. S. ____ (2013) 5
GINSBURG, J., concurring
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 result­
ant 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 proceed­
ings 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
6 CHAFIN v.CHAFIN
GINSBURG, J., concurring
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.