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SUPREME COURT OF THE UNITED STATES
JEFFREY LEE CHAFIN, PETITIONER v.
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 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.
The Hague Conference on Private International
Law adopted the Hague Convention on the Civil Aspects of
International Child Abduction in 1980. T. I. A. S. No. 11670, S.
Treaty Doc. No. 99–11. In 1988, the United States ratified
the treaty and passed implementing legislation, known as the
International Child Abduction Remedies Act (ICARA), 102Stat. 437,
42 U. S. C. §11601 et seq.
, 560 U. S. ___, ___–___
(2010) (slip op., at 4–5).
The Convention seeks “to secure the prompt
return of children wrongfully removed to or retained in any
Contracting State” and “to ensure that rights of
custody and of access under the law of one Contracting State are
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 removal
or retention those rights were actually exercised, either jointly
or would have been so exercised but for the
removal or retention.” Ibid.
Article 12 then states:
“Where a child has been wrongfully
removed or retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child
is, a period of less than one year has elapsed from the date of the
wrongful removal or retention, the authority concerned shall order
the return of the child forthwith.” Id.,
There are several exceptions to that command.
Return is not required if the parent seeking it was not exercising
custody rights at the time of removal or had consented to removal,
if there is a “grave risk” that return will result in
harm, if the child is mature and objects to return, or if return
would conflict with fundamental principles of freedom and human
rights in the state from which return is requested. Arts. 13, 20,
at 10, 11. Finally, the Convention directs Contracting
States to “designate a Central Authority to discharge the
duties which are imposed by the Convention.” Art. 6,
at 8; see also Art. 7, ibid
Congress established procedures for implementing
the Convention in ICARA. See 42 U. S. C.
§11601(b)(1). The Act grants federal and state courts
concurrent jurisdiction over actions arising under the Convention,
§11603(a), and directs them to “decide the case in
accordance with the Convention,” §11603(d). If those
courts find children to have been wrongfully removed or retained,
the children “are to be promptly returned.”
§11601(a)(4). ICARA also provides that courts ordering
children returned generally must require defendants to pay various
expenses incurred by plaintiffs, including court costs, legal fees,
and transportation costs associated with the return of the
children. §11607(b)(3). ICARA instructs the President to
designate the U. S. Central Authority, §11606(a), and the
President has designated the Office of Children’s Issues in
the State Department’s Bureau of Consular Affairs, 22 CFR
Eighty-nine nations are party to the Convention
as of this writing. Hague Conference on Private Int’l Law,
Status Table, Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction, http:// www.hcch.net. In the 2009
fiscal year, 324 children removed to or retained in other countries
were returned to the United States under the Convention, while 154
children removed to or retained in the United States were returned
to their countries of habitual residence. Dept. of State, Report on
Compliance with the Hague Convention on the Civil Aspects of
International Child Abduction 6 (2010).
Petitioner Jeffrey Lee Chafin is a citizen of
the United States and a sergeant first class in the U. S.
Army. While stationed in Germany in 2006, he married respondent
Lynne Hales Chafin, a citizen of the United Kingdom. Their daughter
E. C. was born the following year.
Later in 2007, Mr. Chafin was deployed to
Afghanistan, and Ms. Chafin took E. C. to Scotland. Mr. Chafin
was eventually transferred to Huntsville, Alabama, and in February
2010, Ms. Chafin traveled to Alabama with E. C. Soon
thereafter, however, Mr. Chafin filed for divorce and for child
custody in Alabama state court. Towards the end of the year, Ms.
Chafin was arrested for domestic violence, an incident that alerted
U. S. Citizenship and Immigration Services to the fact that
she had overstayed her visa. She was deported in February 2011, and
E. C. remained in Mr. Chafin’s care for several more
In May 2011, Ms. Chafin initiated this case in
the U. S. District Court for the Northern District of Alabama.
She filed a petition under the Convention and ICARA seeking an
order for E. C.’s return to Scotland. On October 11 and
12, 2011, the District Court held a bench trial. Upon the close of
arguments, the court ruled in favor of Ms. Chafin, concluding that
E. C.’s country of habitual residence was Scotland and
granting the petition for return. Mr. Chafin immediately moved for
a stay pending appeal, but the court denied his request. Within
hours, Ms. Chafin left the country with E. C., headed for
Scotland. By December 2011, she had initiated custody proceedings
there. The Scottish court soon granted her interim custody and a
preliminary injunction, prohibiting Mr. Chafin from removing
E. C. from Scotland. In the meantime, Mr. Chafin had appealed
the District Court order to the Court of Appeals for the Eleventh
In February 2012, the Eleventh Circuit dismissed
Mr. Chafin’s appeal as moot in a one-paragraph order, citing
248 F.3d 1051
(2001). App. to Pet. for Cert. 1–2. In
, the Eleventh Circuit had concluded that an appeal of
a Convention return order was moot when the child had been returned
to the foreign country, because the court “became
powerless” to grant relief. 248 F. 3d, at 1055. In
accordance with Bekier
, the Court of Appeals remanded this
case to the District Court with instructions to dismiss the suit as
moot and vacate its order.
On remand, the District Court did so, and also
ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs,
attorney’s fees, and travel expenses. Meanwhile, the Alabama
state court had dismissed the child custody proceeding initiated by
Mr. Chafin for lack of jurisdiction. The Alabama Court of Civil
Appeals affirmed, relying in part on the U. S. District
Court’s finding that the child’s habitual residence was
not Alabama, but Scotland.
We granted certiorari to review the judgment of
the Court of Appeals for the Eleventh Circuit. 567 U. S. ___
Article III of the Constitution restricts the
power of federal courts to “Cases” and
“Controversies.” Accordingly, “[t]o invoke the
jurisdiction of a federal court, a litigant must have suffered, or
be threatened with, an actual injury traceable to the defendant and
likely to be redressed by a favorable judicial decision.”
v. Continental Bank Corp.
, 494 U.S.
, 477 (1990). Federal courts may not “decide questions
that cannot affect the rights of litigants in the case before
them” or give “opinion[s] advising what the law would
be upon a hypothetical state of facts.” Ibid.
, 404 U.S.
, 246 (1971) (per curiam
); internal quotation marks
omitted). The “case-or-controversy requirement subsists
through all stages of federal judicial proceedings, trial and
, 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
, 461 U.S.
, 101 (1983); some internal quotation marks omitted).
There is thus no case or controversy, and a suit
becomes moot, “when the issues presented are no longer
‘live’ or the parties lack a legally cognizable
interest in the outcome.” Already, LLC
, 568 U. S. ___, ___ (2013) (slip op., at 4) (quoting
, 455 U.S.
, 481 (1982) (per curiam
); some internal quotation
marks omitted). But a case “becomes moot only when it is
impossible for a court to grant any effectual relief whatever to
the prevailing party.” Knox
, 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.
, 12 (1992) (“if an event occurs while a case is pending
on appeal that makes it impossible for the court to grant
‘any effectual relief whatever’ to a prevailing party,
the appeal must be dismissed” (quoting Mills
, 159 U.S.
, 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
(slip op., at 7) (internal quotation marks and brackets
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 maintains
that E. C.’s home is in Scotland. Mr. Chafin also argues
that even if E. C.’s habitual residence was Scotland,
she should not have been returned because the Convention’s
defenses to return apply. Mr. Chafin seeks custody of E. C.,
and wants to pursue that relief in the United States, while Ms.
Chafin is pursuing that right for herself in Scotland. And Mr.
Chafin wants the orders that he pay Ms. Chafin over $94,000
vacated, while Ms. Chafin asserts the money is rightfully owed.
On many levels, the Chafins continue to
vigorously contest the question of where their daughter will be
raised. This is not a case where a decision would address “a
hypothetical state of facts.” Lewis
477 (quoting Rice
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.”
, 563 U. S. ___, ___ (2011)
(slip op., at 5) (quoting Lyons
internal quotations marks omitted).
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
v. St. Louis Southwestern R. Co.
, 249 U.S.
, 145–146 (1919); Northwestern Fuel Co.
, 139 U.S.
, 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
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 availability of a certain kind of
relief—confuses mootness with the merits. In Powell
, 395 U.S.
(1969), this Court held that a claim for backpay saved the
case from mootness, even though the defendants argued that the
backpay claim had been brought in the wrong court and therefore
could not result in relief. As the Court explained, “this
argument . . . confuses mootness with whether [the
plaintiff] has established a right to recover . . . , a
question which it is inappropriate to treat at this stage of the
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
v. Citizens for Better Environment
, 523 U.S.
, 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
] 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
Bulova Watch Co.
, 344 U.S.
, 289 (1952); cf. Leman
v. Krentler-Arnold Hinge
, 284 U.S.
, 451–452 (1932). No law of physics prevents
E. C.’s return from Scotland, see Fawcett
326 F.3d 491
, 496 (CA4 2003), abrogated on other grounds by
, 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
, 690 F.3d 295, 303–304 (CA5 2012) (mother who
had taken child to United Kingdom complied with Texas court
sanctions order and order to return child to United States for
trial), cert. pending, No. 12–304.[2
] After all, the consequence of compliance presumably
would not be relinquishment of custody rights, but simply custody
proceedings in a different forum.
Enforcement of the order may be uncertain if Ms.
Cha- fin chooses to defy it, but such uncertainty does not
typically render cases moot. Courts often adjudicate disputes where
the practical impact of any decision is not assured. For example,
courts issue default judgments against defendants who failed to
appear or participate in the proceedings and therefore seem less
likely to comply. See Fed. Rule Civ. Proc. 55. Similarly, the fact
that a defendant is insolvent does not moot a claim for damages.
See 13C C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure §3533.3, p. 3 (3d ed. 2008) (cases not moot
“even though the defendant does not seem able to pay any
portion of the damages claimed”). Courts also decide cases
against foreign nations, whose choices to respect final rulings are
not guaranteed. See, e.g., Republic of Austria
, 541 U.S.
(2004) (suit against Austria for return of paintings);
Republic of Argentina
v. Weltover, Inc.
, 504 U.S.
(1992) (suit against Argentina for repayment of bonds). And
we have heard the Government’s appeal from the reversal of a
conviction, even though the defendants had been deported, reducing
the practical impact of any decision; we concluded that the case
was not moot because the defendants might “re-enter this
country on their own” and encounter the consequences of our
ruling. United States
, 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).
Mr. Chafin also seeks, if he prevails, vacatur
of the District Court’s expense orders. The District Court
ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs,
attorney’s fees, and travel expenses. See Civ. No.
11–1461 (ND Ala., Mar. 7, 2012), pp. 15–16; Civ. No.
11–1461 (ND Ala., June 5, 2012), p. 2. That award was
predicated on the District Court’s earlier judgment allowing
Ms. Chafin to return with her daughter to Scotland. See Civ. No.
11–1461 (ND Ala., Mar. 7, 2012), pp. 2–3, and
] Thus, in
conjunction with reversal of the judgment, Mr. Chafin desires
vacatur of the award. That too is common relief on appeal, see,
, 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
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, &
, §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
Such relief would of course not be
“ ‘fully satisfactory,’ ” but
with respect to the case as whole, “even the availability of
a ‘partial remedy’ is ‘sufficient to prevent [a]
case from being moot.’ ” Calderon
, 518 U.S.
, 150 (1996) (per curiam
) (quoting Church of
, 506 U. S., at 13).
Ms. Chafin is correct to emphasize that both
the Hague Convention and ICARA stress the importance of the prompt
return of children wrongfully removed or retained. We are also
sympathetic to the concern that shuttling children back and forth
between parents and across international borders may be detrimental
to those children. But courts can achieve the ends of the
Convention and ICARA—and protect the well-being of the
affected children—through the familiar judicial tools of
expediting proceedings and granting stays where appropriate. There
is no need to manipulate constitutional doctrine and hold these
cases moot. Indeed, doing so may very well undermine the goals of
the treaty and harm the children it is meant to protect.
If these cases were to become moot upon return,
courts would be more likely to grant stays as a matter of course,
to prevent the loss of any right to appeal. See, e.g.,
, 468 U.S.
, 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
, Civ. No.
10–1125 (CA1, Feb. 19, 2010) (“Without necessarily
finding a clear probability that appellant will prevail, we grant
the stay because . . . a risk exists that the case could
effectively be mooted by the child’s departure”). In
cases in which a stay would not be granted but for the prospect of
mootness, a child would lose precious months when she could have
been readjusting to life in her country of habitual residence, even
though the appeal had little chance of success. Such routine stays
due to mootness would be likely but would conflict with the
Convention’s mandate of prompt return to a child’s
country of habitual residence.
Routine stays could also increase the number of
appeals. Currently, only about 15% of Hague Convention cases are
appealed. Hague Conference on Private Int’l Law, N. Lowe, A
Statistical Analysis of Applications Made in 2008 Under the Hague
Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction, Pt. III–National Reports 207 (2011). If
losing parents were effectively guaranteed a stay, it seems likely
that more would appeal, a scenario that would undermine the goal of
prompt return and the best interests of children who should in fact
be returned. A mootness holding here might also encourage flight in
future Hague Convention cases, as prevailing parents try to flee
the jurisdiction to moot the case. See Bekier
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
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
, 556 U.S.
, 434 (2009) (quoting Hilton
, 776 (1987)). In every case under the Hague Convention, the
well-being of a child is at stake; application of the traditional
stay factors ensures that each case will receive the individualized
treatment necessary for appropriate consideration of the
child’s best interests.
Importantly, whether at the district or
appellate court level, courts can and should take steps to decide
these cases as expeditiously as possible, for the sake of the
children who find themselves in such an unfortunate situation. Many
courts already do so. See Federal Judicial Center, J. Garbolino,
The 1980 Hague Convention on the Civil Aspects of International
Child Abduction: A Guide for Judges 116, n. 435 (2012) (listing
courts that expedite appeals). Cases in American courts often take
over two years from filing to resolution; for a six-year-old such
as E. C., that is one-third of her lifetime. Expedition will
help minimize the extent to which uncertainty adds to the
challenges confronting both parents and child.
* * *
The Hague Convention mandates the prompt
return of children to their countries of habitual residence. But
such return does not render this case moot; there is a live dispute
between the parties over where their child will be raised, and
there is a possibility of effectual relief for the prevailing
parent. The courts below therefore continue to have jurisdiction to
adjudicate the merits of the parties’ respective claims.
The judgment of the United States Court of
Appeals for the Eleventh Circuit is vacated, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.