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.