Petition for Writ of Certiorari — Andrew Charles Nisbet, Petitioner v. Spirit Rose Bridger

No. 24In the

Supreme Court of the United States

ANDREW CHARLES NISBET,

Petitioner,

v.

SPIRIT ROSE BRIDGER,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Jeremy D. Morley

Counsel of Record

The Law Office of Jeremy D. Morley

230 Park Avenue, Third Floor West

New York, NY 10169

(212) 372-3425

jmorley@international-divorce.com

379678

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The Hague Convention on the Civil Aspects of

International Child Abduction applies only when children

are removed from their country of habitual residence. The

question presented is:

W het her t he Convent ion aut hor i z e s a

determination that children who have lived

for several years in the same residence in the

same country have no habitual residence in that

country or any other country and therefore

have no protection against international child

abduction under the Convention.

ii

RELATED PROCEEDINGS

United States District Court (D.Or.):

Nisbet v. Bridger, Civ. No. 23-00850 (Oct. 24,

2023)

Nisbet v. Bridger, Civ. No. 23-00850 (Nov. 20,

2023)

United States Court of Appeals (9th Cir.):

Nisbet v, Bridger, No. 23-3877 (Dec. 20, 2024)

Nisbet v, Bridger, No. 23-3877 (Jan. 28, 2025)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TREATY PROVISION INVOLVED . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Facts and Procedural History . . . . . . . . . . . . . . . 7

I.

Proceedings Below . . . . . . . . . . . . . . . . . . . . . 7

II. Circuit Court Opinion . . . . . . . . . . . . . . . . . 15

A. The Decision Below Violates an International

Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

Table of Contents

Page

B. The Decision Below Violates the International

Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C. The Decision Below Violates a Decision of the

Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

v

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

DECEMBER 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDIX B — OPINION AND ORDER

DENYING PETITION OF THE UNITED

S TAT E S DI S T R IC T C OU RT FOR

THE DISTRICT OF OREGON, FILED

OCTOBER 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

JANUARY 28, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 89a

A PPENDI X D — H AGU E A BDUCTION

CONVENTION, ARTICLES 1-20 . . . . . . . . . . . . . 91a

vi

TABLE OF CITED AUTHORITIES

Page

Cases

Abbott v. Abbott,

560 U.S. 1, 130 S.Ct. 1983,

176 L.Ed.2d 789 (2010) . . . . . . . . . . . . . . . . . . 4, 5, 18, 25

A (Children), Re (Rev 1)

[2013] UKSC 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

AC v NC

[2021] EWHC 946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Commonwealth Central Authority & Cavanaugh,

[2015] FamCAFC 233, w w w.incadat.com/

en/case/1355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Cooper v. Casey

(1995) FLC 92-575 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Delvoye v. Lee,

329 F.3d 330 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 10

Feder v. Evans-Feder,

63 F.3d 217 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 12

Golan v. Saada,

596 U.S. 666 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gonzalez v. Gutierrez,

311 F.3d 942 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 21

vii

Cited Authorities

Page

Grano v. Martin,

443 F.Supp.3d 510 (S.D.N.Y. 2020),

aff’d, 821 F. App’x 26 (2d Cir. 2020) . . . . . . . . . . . . . 11

In re A.L.C.,

607 F. App’x 658 (9th Cir. 2015) . . . . . . . . . . . . . . . . . 10

In Re B (A Child)

[2016] UKSC 4 . . . . . . . . . . . . . . . . . . . . . . . 5, 20, 22, 23

In re B. Del C.S.B.,

559 F.3d 999 (Ninth Circuit, 2009) . . . . . . . . . . . . . . 22

Jackson v. Graczyk,

2007 ONCA 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Karkainnen v. Kovalchuk,

445 F.3d 280 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 12

Kijowska v. Haines,

463 F.3d 583 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 11

Lozano v. Montoya Alvarez,

572 U.S. 1, 134 S.Ct. 1224 (2014) . . . . . . . . . . . . . . 5, 25

Monasky v. Taglieri,

589 U.S. 69 (2020) . . . 2, 3, 5-7, 10, 11, 15-17, 19, 25, 26

Re A and B (Children: Return order: Article

13(a) defence: 1980 Hague Convention)

[2024] EWHC 2473 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

viii

Cited Authorities

Page

Re J & H,

[2024] EWHC 1395 . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Sanchez-Londono v. Gonzalez,

752 F.3d 533 (1st Cir. 2014) . . . . . . . . . . . . . . . . . . . . .12

Taglieri v. Monasky,

907 F.3d 404 (6th Cir 2018) . . . . . . . . . . . . . . . . . . . . . 9

Tsuruta v. Tsuruta,

76 F.4th at 1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Velasquez v. Funes de Velasquez,

102 F. Supp. 3d 796 (E.D. Va. 2015) . . . . . . . . . . . . . 12

Statutes and Other Authorities

22 U.S.C. §§ 9001–9011 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

22 U.S.C. § 9001(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

22 U.S.C. § 9001(b)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

22 U.S.C. § 9001(b)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

22 U.S.C. §§ 9101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

22 U.S.C. § 9111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ix

Cited Authorities

Page

42 U.S.C. § 11601(b)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11670,

1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494

(Mar. 26, 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Convention Preamble . . . . . . . . . . . . . . . . . . . . . . . . . 19

Article 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Article 1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Article 1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Article 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19, 21

Article 13(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Status Table, Hague Conference on Private Int’l

Law, Convention of 25 Oct. 1980 on the Civil

Aspects of Int’l Child Abduction, https://www.

hc c h . n e t /e n / i n s t r u m e nt s /c on ve nt i on s /

status-table/?cid=24 . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Andrew Charles Nisbet respectfully

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

124 F.4th 577. That opinion and Judge Bybee’s dissent are

attached as Appendix (“App”) at 1a-55a. The opinion of

the district court (App., infra, 56a) is unreported.

JURISDICTION

The judgment of the Court of Appeals was entered

on December 20, 2024. A petition for rehearing en banc

was denied on January 28, 2025 (App., infra, 89a). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

TREATY PROVISION INVOLVED

Article 3 of the Hague Convention on the Civil Aspects

of International Child Abduction (the “Hague Convention”)

(App., infra, 91a), as implemented in the United States

through the International Child Abduction Remedies Act

(“ICARA”), 22 U.S.C. §§ 9001–9011, provides in relevant

part:

“The removal or the retention of a child is

to be considered wrongful where –

2

a) 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.”

STATEMENT

This case presents a question of exceptional importance

concerning the habitual residence of a child, or its

purported lack thereof, under the Hague Convention.

In this matter, the lower courts have misapplied the

unanimous ruling of the Supreme Court in Monasky v.

Taglieri, 589 U.S. 69, 77 (2020), and, in doing so, have

violated an international treaty, two federal statutes and

the international consensus.

T he Hag ue Convention is i nt ended t o det er

international child abduction, which Congress has

determined is harmful to children, by ordering the return

of abducted children to their habitual residence. But a

child without a habitual residence is stateless and has no

protection under the Convention.

Until now, courts have never held that a child who has

lived in one place for more than a year has no habitual

residence and can therefore be abducted by one parent

without any Convention protection.

The decision in this case — that children who had

lived continuously with their mother for 2½ years in the

same household in Scotland — had no habitual residence

anywhere in the world — contravenes the Convention,

3

contravenes the Supreme Court’s ruling in the seminal

Monasky case, disregards the international jurisprudence

concerning habitual residence in violation of both the

International Child Abduction Remedies Act (“ICARA”),

22 U.S.C. §§ 9001–9011 and the Sean and David Goldman

International Child Abduction Prevention and Return

Act of 2014 (“ICAPRA,” 22 USCA § 9101 et seq.) and the

directions of this Court. It opens the door to similar claims

in future Convention cases in the United States and by

sister signatories. It violates the Convention and it flouts

all common sense.

A. Background

The Hague Convention is a multilateral treaty

created “to protect children internationally from the

harmful effects of their wrongful removal or retention.”

Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11670, 1343

U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26,

1986). Congress implemented the Convention through

ICARA. Under Article 3 of the Convention, the threshold

inquiry is whether a child has been “wrongfully removed

or retained” from the child’s “habitual residence.” If a

court determines that the child’s removal or retention

was wrongful under the laws of the State in which the

child was “habitually resident” immediately prior to the

removal or retention, the court must order the return

of the child under Article 12, unless one of the limited

exceptions apply.

The Convention provides an extremely simple and

relatively unambiguous remedy that is expressly designed

to act as a general deterrent to prevent parents from

taking their children across international borders without

4

the other parent’s consent. That remedy is to send the

child “back home” forthwith.

The fundamental idea underlying the Convention is

that “we will return children to you so that in the future

you will do the same for us.” The Convention “is based on

the principle that the best interests of the child are well

served when decisions regarding custody rights are made

in the country of habitual residence.” Abbott v. Abbott, 560

U.S. 1, 20, 130 S.Ct. 1983 (2010).

It works only because each country has agreed to trust

the other “Hague partner” countries to do the same thing

when similar cases come before their courts.

But if the child has no habitual residence, the protection

of the Convention evaporates. The child is then stateless

for abduction law purposes. If a child without a country

of habitual residence is abducted to the United States,

the U.S. courts have no authority under the Convention

to order the child’s return. Instead, as happened here, the

abducting parent is rewarded by switching the forum for

determining child custody to the courts in the place to

which she has abducted the child.

Here, the Oregon court rewarded the mother’s

removal of the children from Scotland by accepting child

custody jurisdiction and awarding sole custody to her.

International jurisprudence must be aligned with any

U.S. application of the Convention. If American courts

use restrictive interpretations of habitual residence to

justify their refusal to return an abducted child, it must

be expected that courts in other countries will reciprocate.

5

The Convention will then cease to operate effectively.

The Supreme Court has ruled that, “to interpret the

Convention to permit an abducting parent to avoid a return

remedy . . . would run counter to the Convention’s purpose

of deterring child abductions by parents who attempt to

find a friendlier forum for deciding custodial disputes.”

Abbott at 20.

ICARA expressly requires courts to recognize “the

need for uniform international interpretation of the

Convention.” 22 U.S.C. § 9001(b)(3)(B). This Court has

repeatedly applied — and enforced — that provision.

Abbott at 16 (“The principle [that the opinions of our sister

signatories are entitled to considerable weight] applies

with special force here, for Congress has directed that

“uniform international interpretation of the Convention”

is part of the Convention’s framework. See § 11601(b)(3)

(B))”; Lozano v. Montoya Alvarez, 572 U.S. 1, 13, 134 S.Ct.

1224 (2014); and Monasky at 89, especially when habitual

residence is the issue. Id.

Internationally, courts hold that it is fundamental that

children should not be left “in limbo,” without a habitual

residence, except in extremely rare and exceptional

circumstances. For example, the U.K. Supreme Court

has held that “the modern concept of a child’s habitual

residence operates in such a way as to make it highly

unlikely, albeit conceivable, that a child will be in the

limbo in which the courts below have placed” him, of being

without any habitual residence. Re B (Habitual Residence:

Inherent Jurisdiction, [2016] UKSC 4.

In Monasky, the Supreme Court followed international

jurisprudence and held that the test of habitual residence

6

is the “totality of the circumstances,” with a primary focus

on where, objectively, the child was at home at the time

of removal. It upheld the decision of the Court of Appeals

that a requirement of shared parental consent to establish

a habitual residence for an infant child, “would create a

presumption of no habitual residence for infants, leaving

the population most vulnerable to abduction the least

protected.” Id. at 81.

Yet, in the pending case, the Ninth Circuit upheld

the position that the parties’ children were not habitually

resident in the place that had been their only home for

over 2½ years, had no habitual residence whatsoever,

and therefore that they could lawfully be abducted. That

violates the Convention and weakens its efficacy. It sends

a strong message to our treaty partners that American

children who are abducted overseas after having long and

habitually lived in the United States need not be returned

to the United States if the foreign courts arbitrarily

decide that the children have no habitual residence. It tells

our treaty partners that the American courts cannot be

trusted to return children who are abducted to America

because their courts arbitrarily hold that a child’s home of

many years is not their habitual residence for Convention

purposes. ICAPRA requires the U.S. Department of State

to provide an annual report to Congress on the compliance

by U.S. treaty partners with the terms of the Convention.

22 USCA § 9111; Public Law 113–150 (2014). However, it

does not require the Department to review the American

compliance with the Convention. But a holding that a 2½

year old child who has lived all her life in one country is not

habitually resident in that country is plainly noncompliant

with the Convention.

7

The fact — which was most inappropriately highlighted

by the circuit court majority by placing it in the opening

sentence of its opinion — that Nisbet was in custody in

England for having killed his own mother, almost three

years before the children were removed from Scotland

— is of no possible relevance to the question of where the

children habitually resided at the time of their removal.

But the citation to that fact apparently misled both courts

below. This has yielded a most dangerous precedent — that

children who have long lived in one place can nonetheless

be stripped of the protection of the Convention if a trial

court decides that they were not habitually resident in that

place. To make matters worse, and as the fierce dissent

in the court below explained, if a court merely cites the

language of Monasky, its decision about habitual residence

is then immunized from any meaningful appellate review.

B. Facts and Procedural History

I.

Proceedings Below

On June 17, 2022, Spirit Bridger — an American

citizen who had lived exclusively in Edinburgh, Scotland

for seven years, except for two brief periods when she lived

in the Bailiwick of Jersey, a British Crown Dependency —

took her two children, ACN and KRN, from their home in

Scotland to live in Oregon, USA, without the knowledge

or consent of their father, Andrew Nisbet. He and both

children are British citizens. App., infra, 24a.

ACN was born in Jersey on February 1, 2018. He lived

in Edinburgh with his mother from August 2018, returned

to Jersey for a few months in early 2019, and then returned

with his mother to live in Edinburgh in August 2019. KRN

8

was born in Scotland on February 27, 2020. She and her

brother, ACN, lived there with Bridger continuously until

June 17, 2022, when Bridger covertly took them to live in

Oregon without the approval of any court. Neither child

had ever stepped foot in the United States. ACN was then

almost 4½ years old and KRN was almost 2½. Id.

In Edinburgh, the children and Bridger always lived

in Nisbet’s apartment, at his expense. ACN attended

nursery school in Edinburgh continuously from January

16, 2020. KRN attended the same school continuously

from September 9, 2020. App., infra, 34a–35a. Bridger

submitted at trial a letter from a friend who had observed

her and the children for two years from April 2020, stating

that the children “were always happy in Scotland . . . “

(1-ER-175-6). Another friend of Bridger for three years in

Scotland testified that both children were “happy” there.

3-ER-394-5. The children received their regular medical

and dental care in Edinburgh throughout their lives, from

2019 to June 2022. App., infra, 18a, 24a, 35a. In 2021,

Bridger applied to the U.K. Home Office for her third

long-term visa in anticipation of obtaining “settlement”

in Scotland. App., infra, 24a.

Nisbet petitioned for the return of the children to

Scotland pursuant to the Hague Convention so that

the Scottish courts could determine the children’s best

interest.

Notwithstanding the simplicity of the basic facts,

the district court concluded that the children did not

habitually reside in Scotland at the time of their removal

and that there was no alternative country of residence;

they simply lacked “any habitual residence” at all. App.,

infra, 87a.

9

The district court held that the children should not be

returned to Scotland because “the preponderance of the

evidence compels the conclusion that, on June 17, 2022,

ACN and KRN lacked a habitual residence altogether.”

Id. That decision, which had the effect of removing

all Convention protections against international child

abduction, was clearly erroneous.

The district court failed to address the Sixth Circuit’s

and the Supreme Court’s express warnings in Monasky

against any finding that children have no habitual

residence.

The Sixth Circuit, sitting en banc in Monasky,

ruled that habitual residence did not hinge principally

on the existence of an actual parental agreement as to

where their child would live. It explained that if habitual

residence required an actual parental agreement there

would then be a presumption of no habitual residence,

which would violate the principle that internationallyabducted children should normally be returned. Taglieri

v. Monasky, 907 F.3d 404, 415 (6th Cir 2018), aff’d by

Monasky. It stressed that this was most especially so

when a child had lived in only one country, in which case

common sense requires that the child’s habitual residence

be in that country. Id. at 413–414.

The Supreme Court upheld that decision and adopted

the same argument. It explained that,

“An actual-agreement requirement would

enable a parent, by withholding agreement,

unilaterally to block any finding of habitual

residence for an infant. If adopted, the

10

requirement would undermine the Convention’s

aim to stop unilateral decisions to remove

children across international borders. Moreover,

when parents’ relations are acrimonious, as is

often the case in controversies arising under

the Convention, agreement can hardly be

expected. In short, as the Court of Appeals

observed below, “[Mother’s] approach would

create a presumption of no habitual residence

for infants, leaving the population most

vulnerable to abduction the least protected.”

140 Monasky at 81. (emphasis added).

Yet, in the pending case, the district court paid no

heed to the warnings against any finding of habitual

residence, and it provided no support for such omission

or explanation for it. It recited the Monasky principle

(App., infra, 71a), but deemed that its mere mention

was sufficient. Its opinion is devoid of any discussion on

whether any finding that a child had no habitual residence

was proper or appropriate.

Instead, the district court cited three pre-Monasky

cases in which courts had found that the children had

no place of habitual residency. But each of those cases

concerned very young babies, whose parents were in

conflict as to the country of future residency. In re A.L.C.,

607 F. App’x 658, 662-63 (9th Cir. 2015) concerned an

infant born during the mother’s temporary stay in U.S.

whose parents had no shared intention to remain in the

U.S. after the mother’s birth recovery period. Delvoye

v. Lee, 329 F.3d 330, 333 (3d Cir. 2003), concerned a

2-month-old baby who was born in Belgium because

the mother was there only temporarily and the parents’

11

conflict was contemporaneous with the child’s birth.

Similarly, Kijowska v. Haines, 463 F.3d 583 (7th Cir.

2006), concerned a baby who was also just two months

old when her mother, who was in the U.S illegally and

was threatened by the father with deportation, took her

to Poland. Each of these decisions was based on the last

shared intention of the parents, which Monasky held is

not the key factor for non-infant children. Monasky at 74.

In sharp contrast to those cases, each concerning

infants under the age of one, ACN and KRN were 2.4

and 4.4 years old respectively when they were removed. A

diligent search of U.S. caselaw has revealed no Convention

case other than the pending one in which a court has

ever found that a child who is more than a year old has

no habitual residence. Indeed, courts have relied on

Monasky to hold that they should not find that children

have no habitual residence. See: Grano v. Martin, 443

F.Supp.3d 510, 535 (S.D.N.Y. 2020), aff’d, 821 F. App’x

26 (2d Cir. 2020): “the Supreme Court’s recent decision

in Monasky has mostly undone the no-habitual-residence

line of cases stemming from a lack of parental shared

intent, at least for infants.”

Instead, the district court merely and inappropriately

relied on the asserted fact that Bridger was not fully

settled in Edinburgh and “had long intended to move to

Oregon.” (App., infra, 74a). But that is not the relevant

issue. It contravenes the instruction in Monasky that

courts should ascertain where the child, not a parent, was

at home on the relevant date.

In any event, Bridger resided in Edinburgh for seven

years, originally obtained an entrepreneur visa for the

12

U.K. so that she could open a coffee shop in Scotland,

where she was living with Nisbet, applied in 2018 for a

domestic partnership visa, good for 30 months, applied

in 2021 for a “settlement” visa to allow her to remain

indefinitely, and then in 2021 applied for a renewal of her

partnership visa supported by Nisbet’s letter advising

the U.K. Home Office that she was his partner, that she

and their two children were resident in his apartment,

and asking that Bridger be granted “Indefinite Leave to

Remain” in the U.K. in their “permanent home,” which

apparently was successful. App. infra, 40a.

The district court failed entirely to attach any

significance to the key fact that the children had

continuously attended the same preschool, in Edinburgh,

since January 2020 (in the case of ACN) and since

September 2020 (in the case of KRN). A child’s

attendance at school is one of the most significant factors

in establishing that a child is at home in a particular

location. Tsuruta v. Tsuruta, 76 F.4th at 1111; SanchezLondono v. Gonzalez, 752 F.3d 533, 542–43 (1st Cir. 2014)

(the child had become “acclimatized” in Massachusetts

because, inter alia, “she had been attending daycare

in Massachusetts for nearly four months”); Velasquez

v. Funes de Velasquez, 102 F. Supp. 3d 796, 810 (E.D.

Va. 2015) (“Most importantly, the daughters have been

enrolled in school in the United States for a longer period

of time than their enrollment in El Salvadorian schools.”);

Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) (“In

Australia, Evan attended preschool and was enrolled

in kindergarten for the upcoming year, participating in

one of the most central activities in a child’s life”); and

Karkainnen v. Kovalchuk, 445 F.3d 280, 293 (3d Cir. 2006)

(“[c]ourts have identified a number of specific factors that

13

are indicative of acclimatization and a degree of settled

purpose from the child’s perspective. In Feder, we noted

that academic activities are among “the most central

. . . in a child’s life” and therefore highly suggestive of

acclimatization.”)

The district court also mistakenly relied on the fact

that Nisbet did not live with the children in Edinburgh.

App., infra, 86a. However, the focus should be on where

the children are at home, not on whether they were in

a family unit that included both parents. It is hardly

surprising that a parent who lives separately from the

other parent might wish to take their child overseas, but

that is exactly what the Convention is intended to deter.

Nevertheless, Bridger brought the children to visit Nisbet

at his psychiatric facility in England on several occasions,

spending several days during at least three of those visits

with Nisbet, and he had frequent Skype calls with the

children, which he scheduled on a daily basis. During

those calls, he read stories to them and played games

with them. He also talked regularly with Bridger about

the children and their care, and he gave Bridger $180,000

for herself and the children in case anything happened to

him. App. infra 41a.

The district court also relied on a claim that Nisbet

had “coerced” Bridger into returning to Edinburgh from

Jersey and remaining in Edinburgh for the next 2 ½

years in that he “levied many demands on Respondent in

exchange for his signature and money — including daily

hours-long phone calls — and he threatened her, in ways

that could also harm the children.” App., infra, 74a. This

claim is absolutely refuted on both the facts and on the

law. Significantly, the district court cited no authority in

support of this issue.

14

Bridger testified that she had chosen to travel back

and forth between Edinburgh and Jersey on several

occasions until August 2019 when she voluntarily moved

to Scotland with ACN, that she decided to stay in Scotland

and give birth to KRN there because she had free medical

care in Scotland, that she lived there rent-free in the

Edinburgh Residence, that she stayed there during

COVID, that she asked Nisbet to sign a consent for her to

obtain a U.S. passport and that he did so, that she obtained

the passport (Tr. 417:25-418:14), and that she then waited

for an extended period of time before she finally left with

the children in June 2022. She testified that she had had

to stay because of COVID, that “I wasn’t feeling pressed”

and that she left when she was finally ready to do so. (Tr.

419:10-420-5). During all the time after August 2019,

Nisbet was in custody in Jersey and then under the strict

and secure supervision of the authorities in the psychiatric

hospitals in England to which he was committed. He never

stepped foot in Scotland during all that time.

There is nothing unusual or “rare” about the facts

of this case, except for the irrelevant but shocking fact

of Nisbet’s act of manslaughter leading to his indefinite

confinement in a psychiatric institution in England.

Apart from that, this is a common garden and simple

case of a foreign parent covertly and unilaterally taking

her children away from the other parent to live in her

country of origin. But that is exactly the conduct that the

Convention is intended to deter.

The district court also found that there would be a

grave risk of harm to the children if they were returned

to Scotland. App., infra, 57a. But this was based on

pure speculation by an expert who had never examined

15

Nisbet and disclaimed any opinion about risk in this

case (4-ER-724-251), that someone with some of his

alleged psychological characteristics might engage in

domestic violence if he were released from institutional

care in England and if he were then permitted by the

British authorities to have unsupervised access to the

children. And the District Court rejected the evidence

of several psychiatric forensic experts who had actually

interviewed Nisbet, his close friends, and his therapist,

and were familiar with his medical history, all of whom

gave evidence to the court that he did not present any

risk to his children. 1-ER-42-45; 4-ER-755-72. Moreover,

the district court acknowledged “there was no evidence

that [Nisbet] physically abused [Bridger] or the children.”

App., infra, 81a.

II. Circuit Court Opinion

On December 20, 2024, a divided Ninth Circuit

panel upheld the district court’s decision, applying the

deferential standard of review established in Monasky.

In its opening sentence, the majority stated that

Nisbet had previously “stabbed his mother in the throat,

killing her, pleaded guilty to manslaughter based on

diminished responsibility, and was sentenced to indefinite

psychiatric confinement in England.” App., infra, 2a.

But the fact that Nisbet had previously committed that

terrible act in Jersey — before Bridger then returned to

live in Edinburgh with ACN, and remained there after

1. Citations to “ER” refer to the Excerpts of Record filed in

the Ninth Circuit.

16

KRN was born and for another two years and four months

after his birth — has no bearing on whether the children’s

home — considered through their eyes, as Monasky

requires — was in Scotland as of June 2022.

The children never lived with Nisbet after Bridger

returned to Edinburgh until she removed them from

Scotland. They lived safely with Bridger in Edinburgh,

while Nisbet was confined in secure institutions in

England. 2 App., infra, 41a. All their visits with Nisbet

were in England and strictly supervised.

The panel upheld the district court’s ruling that

the children were not habitually resident in Scotland

based primarily on its findings that Bridger intended

to leave Scotland and had few ties to Scotland, that the

children allegedly had no friends in Scotland, and had “no

meaningful relationship with their father.” App., infra,

13a. But those factors were clearly entirely insufficient

to overcome the simple fact that the children’s home was

in Scotland, where they lived throughout in the same

residence and attended the same school with the same

medical and dental care.

Some of the majority’s factual recitations were highly

questionable. For example, the children clearly had a

significant relationship with Nisbet. Bridger took them

to see him in England on at least four occasions between

2019 and 2021, spending several days with him during at

least three visits — in June 2021 (for four days with him),

in July 2021 (for four days) and in December 2021 (for two

days). 1-ER-42, 46, 103-108, App., infra, 40a. Between

2. He remains in such an institution in England.

17

visits, Nisbet spoke with them by Skype almost every day,

during which he read stories and played games with them.

He also talked regularly with Bridger about the children

and their care. App., infra, 40a, 1-ER-101.

The majority panel stated that the district court had

correctly cited the Monasky standard and that there

was no clear error in its application. It stated that the

mere presence of a child in one place is not necessarily

dispositive, and that mere attendance at school does not

prove the quality of a child’s social connections.

The panel majority also stated that, “[W]hile a finding

of no habitual residence is rare and should be disfavored, it

is not a clear error to render such a finding if the totality

of the circumstances of a judicial case so warrants.” App.,

infra, 17a. That statement was made as a mere conclusion

without any analysis as to the appropriateness of its

application to the facts in the pending case.

In his dissent, Circuit Judge Bybee stated (App.,

infra, 26a) that,

“The answer to the correct question — where

were the children habitually resident? — should

have been quick and easy. The Supreme Court

has held that we should take a “common sense”

approach to the Hague Convention and said that

“[c]ommon sense suggests that some cases will

be straightforward: Where a child has lived in

one place with her family indefinitely, that place

is likely to be her habitual residence.”

18

He further stated (id) that,

“These children habitually resided in Scotland,

the courts of Scotland are best situated to

determine the custody and access rights of

the parents, and we have to trust the Scottish

courts to resolve these issues appropriately.

Because I believe that we have violated our

obligations under the Hague Convention, I

firmly dissent.”

The panel majority did not address the grave risk

issue. The dissent determined that the district court’s

determination was plainly erroneous because it was purely

speculative, and represented an inappropriate custody

determination. App., infra, 51a.

A. The Decision Below Violates an International

Treaty.

The Hague Convention “was adopted in 1980 in

response to the problem of international child abductions

during domestic disputes.” Abbott v. Abbott, 560 U.S. 1,

8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). More than one

hundred countries including the United States and the

United Kingdom, are signatories. Status Table, Hague

Conference on Private Int’l Law, Convention of 25 Oct.

1980 on the Civil Aspects of Int’l Child Abduction,

https://www.hcch.net/en/instruments/conventions/statustable/?cid=24.

The Convention’s “core premise” is that “‘the interests

of children . . . in matters relating to their custody’ are

best served when custody decisions are made in the child’s

19

country of ‘habitual residence.’ Monasky at 72 (quoting

Convention Preamble, Treaty Doc., at 7).

The purpose of the reliance on the key connecting

factor of the child’s habitual residence is “to ensure that

custody is adjudicated in what is presumptively the most

appropriate forum — the country where the child is at

home.” Monasky at 79.

Accordingly, the Convention generally requires the

“prompt return” of a child to the child’s country of habitual

residence when the child has been wrongfully removed to

or retained in another country. Art. 1(a), Treaty Doc., at

7; see also Art. 12, id., at 9. This requirement “ensure[s]

that rights of custody and of access under the law of one

Contracting State are effectively respected in the other

Contracting States.” Art. 1(b), id., at 7. Golan v. Saada,

596 U.S. 666, 670 (2022).

A finding of a child’s habitual residence is essential for

the Convention to apply. Without a habitual residence the

Convention’s protection and deterrent effect vanishes. It is

fundamental that a child must invariably have a habitual

residence or the Convention is a dead letter.

The courts in the United Kingdom have analyzed this

issue in several cases. In A (Children), Re (Rev 1) [2013]

UKSC 60 at Para. 56, the UK Supreme Court explained

that,

“The whole Convention, beginning with article

3, is predicated upon there being a state where

the child is habitually resident immediately

before the wrongful removal or retention. Can

20

it be the case that the Convention would not

apply if the child born to an English mother

while on holiday abroad were abducted from

the hospital?”

This was followed in In Re B (A Child) [2016] UKSC

4, 45, in which the UK Supreme Court held that, except

in special and most unusual circumstances, a child should

not be left “in limbo” with no habitual residence.

Specifically, Lord Wilson ruled (Id. at 45):

“I conclude that the modern concept of a child’s

habitual residence operates in such a way as to

make it highly unlikely, albeit conceivable, that

a child will be in the limbo in which the courts

below have placed B.

The concept operates in the expectation that,

when a child gains a new habitual residence,

he loses his old one. Simple analogies are best:

consider a see-saw. As, probably quite quickly,

he puts down those first roots which represent

the requisite degree of integration in the

environment of the new state, up will probably

come the child’s roots in that of the old state to

the point at which he achieves the requisite deintegration (or, better, disengagement) from it.”

That principle — that the Convention mandates that a

finding of habitual residence be made whenever possible,

in favor of a child being left unprotected by a finding of no

habitual residence — has been followed by a long line of

English cases and by other courts globally, as is discussed

further in the next section.

21

However, the principle was violated in the pending

case by the decision that the children — who had lived

for all of their lives in Scotland (except for short periods

in Jersey for only the older child), and specifically for 2½

years for both children immediately preceding their covert

removal to Oregon, where they had never before stepped

foot — were habitually resident nowhere.

Accordingly, the courts below have violated the

treaty. Instead of returning the children to their home

in Scotland they authorized the courts in Oregon, a place

that was utterly foreign to the children on the relevant

date, to decide the custody of the children. The courts

below endorsed the mother’s misconduct of unilaterally

removing the children from their home country, which is

conduct that the Convention was expressly designed to

deter. They deprived the children and their father of their

right to have the matter of the children’s best interests be

determined in the place where they were living and going

to school. They have effectively deprived the father of his

right to see his children.

The courts below have rewarded the mother’s forumshopping. They have themselves expressly violated the

treaty, which in Article 12 of the Convention expressly

places a duty on “the judicial or administrative authorities

in the requested State” to return children pursuant to the

terms of the Convention.

The Convention was drafted to secure international

cooperation regarding the return of children wrongfully

taken by a parent from one country to another, often in

the hope of obtaining a more favorable custody decision

in the second country.” Gonzalez v. Gutierrez, 311 F.3d

942, 944 (9th Cir. 2002). ICARA recognized that, “(3)

22

International abductions and retentions of children are

increasing, and only concerted cooperation pursuant to

an international agreement can effectively combat this

problem.” 22 U.S.C.A. § 9001(a)(3).

The Convention seeks generally to accomplish its aim

by preventing an abducting parent from benefitting from

his actions by requiring that a wrongfully removed child

be returned to the country of its habitual residence for

custody proceedings. In re B. Del C.S.B., 559 F.3d 999,

1002 (Ninth Circuit, 2009). But that entire process hinges

on a sensible and predictable interpretation of the meaning

of the term “habitual residence.” Here, that process has

completely broken down, which explains and justifies the

ferocity of the dissent.

B. The Decision Below Violates the International

Jurisprudence

The international jurisprudence is unanimous.

International child abduction is child abuse. A finding of no

habitual residence deprives a child of all protection under

the Convention. It must be found in only the most unusual

of cases. Children need the protection of being held to be

habitually resident in the place that is their home.

The decision of the UK Supreme Court in In Re B (A

Child), supra, was to this effect followed in AC v NC [2021]

EWHC 946 at ¶27 (Fam), in which the court held that:

As Lord Wilson says, it is highly unlikely (albeit

conceivable) that a child can be left in limbo

where he or she has lost habitual residence in

state A but not gained it in state B. Although

23

Lord Wilson says this scenario is “conceivable”,

I sense that he is saying that it is vanishingly

unlikely. I would agree.

Limbo must be near-impossible.”

Likewise, in Re J & H, [2024] EWHC 1395 at ¶27

(Fam), the English High Court most recently stated that,

“The Supreme Court in Re B [2016] UKSC 4

emphasised that it is in a child’s best interests

to have a habitual residence so as to avoid falling

into a jurisdictional limbo.

Where a set of facts might reasonably lead to

a finding of habitual residence or no habitual

residence the court should find a habitual

residence.”

And in Re A and B (Children: Return order: Article

13(a) defence: 1980 Hague Convention) [2024] EWHC 2473

(Fam), the court held that,

“7. It is possible, but vanishingly rare that

a child may be found not to have a habitual

residence. This may arise in circumstances

where the child frequently moves between

jurisdictions or has lost habitual residence in

one jurisdiction but the evidence of acquiring

it in the new jurisdiction does not reach the

requisite threshold to make a finding of habitual

residence.”

24

Likewise, courts in Canada hold that, “cases where a

child has no habitual residence will be rare. Courts should

not strain to find a lack of habitual residence because

that finding would deprive a child of the protection of the

Convention.” Jackson v. Graczyk, 2007 ONCA 388, Para.

38.

Australian courts follow the same principle. They

stress that it important for children to always have a

habitual residence, in order to protect them in accordance

with the provisions of the Convention. Cooper v. Casey

(1995) FLC 92-575 at 81, 696, www.incadat.com/en/

case/104, insisting that,

“ . . . the making of a finding that a child has

no habitual residence could easily operate to

defeat the purpose of the Convention and leave

children open to the possibility of repeated

abductions by both parents . . . ”

Thus, in Commonwealth Central Authority &

Cavanaugh, [2015] FamCAFC 233, www.incadat.com/

en/case/1355, the Family Court of Australia overturned

a ruling that a child who had lived in Finland for a year

was not habitually resident there. The appeal court held

that the trial judge did not give sufficient weight to the fact

that the Convention favors a finding that children should

have a habitual residence so that they can be protected

from abduction.

Uniform international interpretation of the provisions

of the Convention is essential. ICARA expressly states

that,

25

“(3) In enacting this chapter the Congress

recognizes –

(A) the international character of the

Convention; and

(B) the need for uniform international

interpretation of the Convention.” 22 U.S.C.

§ 9001(b)(B).

Accordingly, in Monasky, the Court stressed that,

“ICARA expressly recognizes “the need

for uniform international interpretation of

the Convention.” 22 U.S.C.§ 9001(b)(3)(B).

See Lozano, 572 U.S. at 13, 134 S.Ct. 1224;

Abbott, 560 U.S. at 16, 130 S.Ct. 1983. The

understanding that the opinions of our sister

signatories to a treaty are due “considerable

weight,” this Court has said, has “special force”

in Hague Convention cases. Ibid.”

It is important that the United States should not be

an outlier in respect of its enforcement of the Convention.

The decision in the pending case, that the children were

without any habitual residence on the date of their

removal, is in plain violation of common sense and the

international jurisprudence.

C. The Decision Below Violates a Decision of the

Supreme Court

In Monasky, the Supreme Court held that “[t]he

place where a child is at home, at the time of removal

26

or retention, ranks as the child’s habitual residence.”

Monasky at 77.

Here, the children were at home only in Scotland.

They had no connection to any other place that could be

considered to be their home.

The circuit court rendered a decision that makes no

sense except for the most critical fact — which is of no

possible relevance to the issue of where was home for

the children — that the father had, some years earlier,

committed a terrible crime for which he was in indefinite

custody in nearby England. The court majority placed this

fact at the very head of their analysis, but then entirely

failed to connect that fact to the issue of whether the

children had a home. The dissent correctly points out

that this was the obvious reason for the majority opinion,

and that it was because the majority could not explain the

relevance of the fact that they were compelled to rely on

weak factors such as the mother’s wish to leave Scotland

or the father’s purported actions such as telephoning the

children that it could label as coercive.

The problem was accentuated by the fact that courts

have treated the Monasky test as dogma that, once recited,

precludes all analysis of its application. While Monasky

held that the application of the standard should be judged

on appeal by a clear-error review standard deferential to

the fact-finding court, appeal courts have failed to oversee

its application by district courts. There has not been one

appellate case, post-Monasky, in which a district court

finding on habitual residence has been overturned, or

even modified.

27

The Ninth Circuit approach all-too-easily finds that

a child has no habitual residence. This conflicts with the

fundamental purpose of the Hague Convention and is

inconsistent with Monasky.

This Court’s intervention is necessary to make clear

that courts should not find that a child has no habitual

residence except in the most exceptional cases.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Jeremy D. Morley

Counsel of Record

The Law Office of Jeremy D. Morley

230 Park Avenue, Third Floor West

New York, NY 10169

(212) 372-3425

jmorley@international-divorce.com

April 25, 2025

APPENDIX

i

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

DECEMBER 20, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDIX B — OPINION AND ORDER

DENYING PETITION OF THE UNITED

S TAT E S DI S T R IC T C OU RT FOR

THE DISTRICT OF OREGON, FILED

OCTOBER 24, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

JANUARY 28, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . 89a

A PPENDI X D — H AGU E A BDUCTION

CONVENTION, ARTICLES 1-20 . . . . . . . . . . . . . 91a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED DECEMBER 20, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-3877

D.C. No.

3:23-cv-00850-IM

ANDREW CHARLES NISBET,

Petitioner-Appellant,

v.

SPIRIT ROSE BRIDGER,

Respondent-Appellee.

Appeal from the United States District Court

for the District of Oregon

Karin J. Immergut, District Judge, Presiding

Argued and Submitted September 10, 2024

San Francisco, California

Before: Jay S. Bybee, Carlos T. Bea, and Salvador

Mendoza, Jr., Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Bybee

Filed December 20, 2024

2a

Appendix A

OPINION

BEA, Circuit Judge:

Andrew Nisbet—who stabbed his mother in the

throat killing her, pleaded guilty to manslaughter based

on diminished responsibility, and was sentenced to

indefinite psychiatric confinement in England—appeals

the district court’s order that denied his petition under

the Hague Convention for return to Scotland of his two

young children,1 ACN (born in February 2018) and KRN

(born in February 2020). 2 ACN and KRN were brought to

the United States from Scotland by their mother, Spirit

Bridger, in June 2022. The district court found Nisbet

failed to prove by a preponderance of the evidence that

ACN and KRN were habitual residents of Scotland when

they left with Bridger for the United States. Bridger

thus did not wrongfully remove them from their habitual

residence under the Hague Convention. We affirm. 3

1. The Hague Convention on the Civil Aspects of International

Child Abduction (“Hague Convention”), implemented in the United

States by the International Child Abduction Remedies Act. 22

U.S.C. § 9001 et seq. Both the United States and the United

Kingdom are signatories of the Hague Convention.

2. ACN and KRN, both U.S. citizens, now live and attend

schools in Oregon. They have social security numbers, health

insurance, a pediatrician, and a dentist in the United States.

Bridger is supported by her mother, stepfather, two brothers,

and friends.

3. We have jurisdiction under 28 U.S.C. § 1291.

3a

Appendix A

I.

A.

Nisbet and Bridger met in 2012 in New York City when

they were both on vacation.4 Nisbet, a British citizen, lived

and worked in Scotland as a radiologist. Bridger, a United

States citizen, lived in Oregon and was unemployed. 5

Despite Bridger’s desire to stay in the United States,

she moved to Scotland in 2012 to be with Nisbet because

he purportedly could not work in the United States as a

radiologist. They lived in an apartment in Edinburgh that

Nisbet owned and viewed only as temporary (“Edinburgh

Residence”).6 Nisbet’s long-term plan had always been

to raise his family in his parents’ house on the Island of

Jersey (“Jersey Residence”), a British Crown Dependency.

And throughout the relevant period, Bridger had and has

always maintained a residence in Oregon.

Bridger wished to marry Nisbet, but they never did.

In Spring 2017, Bridger became pregnant with ACN in

Scotland. Adamant about the Jersey Residence, Nisbet

asked to live with his parents. Bridger in the meantime

4. Nisbet’s counsel conceded at oral argument that the district

court did not clearly err in finding Bridger a credible witness.

5. While Bridger lived with Nisbet, she did not have any

source of income other than from Nisbet, and she needed approval

from Nisbet for most of her purchases.

6. They traveled to New Zealand for one year after 2012 and

returned to the Edinburgh Residence in 2015.

4a

Appendix A

was thinking about returning to the United States. Nisbet

told Bridger she would return to the United States if his

parents turned them down.

And turn them down his parents did, albeit after

extensive arguments between Nisbet and his parents.

Shortly thereafter, Nisbet attempted suicide by injecting

air into his veins, but he survived. Uninvited, Nisbet

then took Bridger to Jersey, and they showed up on

the doorstep of the Jersey Residence. Nisbet’s parents

relented and allowed them to stay at an annex of the

Jersey Residence on a temporary basis while Bridger was

pregnant with ACN.

In January 2018, Nisbet again attempted suicide,

this time by throwing himself out of a twenty-foot-high

window onto a concrete patio, fracturing his feet and spine.

Consequently, he was bedridden for at least seven months.

In February 2018, one month after Nisbet’s second

suicide attempt, ACN was born in Jersey. Bridger took

care of both ACN and Nisbet for six months in Jersey,

with minimal assistance from Nisbet’s parents. In August

2018, once Nisbet could manage his own needs, Bridger

moved from Jersey to Scotland with ACN. Nisbet still lived

in Jersey but commuted back and forth between Jersey

and Edinburgh. During this period, Bridger prepared to

leave for the United States, but Nisbet convinced her to

stay for a few more months so that he could try to resolve

his family strife.7

7. In November 2018, Bridger was granted a partnership

visa, permitting her to remain in the United Kingdom for 30

5a

Appendix A

In February 2019, Bridger returned to Jersey with

ACN after Nisbet assured her that he had reconciled with

his parents. Despite this assurance, however, Nisbet’s

relationship with his parents deteriorated. Nisbet would

bang his head against the wall every day, sometimes

several times a day. He punched walls and broke a table.

The police were called when Nisbet once cornered his

father and pulled his mother’s hair. Scared, Bridger told

Nisbet she no longer loved him and wanted to return to

the United States.

In early August 2019, Nisbet’s parents served a notice

of eviction on Nisbet and Bridger. On August 6, 2019,

Nisbet killed his mother by stabbing her in the neck with

a pocketknife. He was arrested and pleaded guilty to

manslaughter on the grounds of diminished responsibility

owing to mental disorder. The Royal Court of Jersey

sentenced Nisbet to indefinite psychiatric confinement at

Brockfield House in Essex, England. The district court

found that Nisbet’s family had since severed contact with

Nisbet, Bridger, and ACN. 8

Around the same time, by August 2019, Bridger had

become pregnant with KRN. After Nisbet was arrested,

Bridger and ACN were taken to a refuge and then to

months. She would potentially be eligible to apply for a permanent

settlement status after completing five years on that partnership

visa. Before obtaining this partnership visa, Bridger was in the

United Kingdom on an entrepreneurship visa.

8. Bridger reached out to Nisbet’s family for help once, but

they asked her not to contact them again.

6a

Appendix A

a halfway house in Jersey. Bridger planned to return

to the United States once she was no longer needed for

the police’s investigation of Nisbet. As KRN’s due date

neared, however, Bridger instead moved to the Edinburgh

Residence in late 2019 to give birth to KRN because she

did not have health insurance in the United States, she

had no other place in the United Kingdom to live with

her children, and she believed she needed to remain in

the country while Nisbet’s criminal case was pending.

That said, Bridger still planned to leave for the United

States shortly thereafter, if she were released by the

police authorities.

KRN was born in February 2020. 9 Then, the

COVID-19 pandemic hit; country borders and airlines

were closed.

From then until June 2022, and during the COVID-19

restrictions period, Bridger lived in the Edinburgh

Residence with ACN and KRN. Bridger kept in contact

with Nisbet because she needed Nisbet’s signature to

apply for KRN’s U.S. passport, she needed financial

support from Nisbet, and her U.K. visa was expiring.10

9. Bridger’s mother and her stepfather traveled from the

United States to Scotland and visited her about a week before

KRN’s birth and stayed for about two weeks thereafter.

10. In early 2021, Bridger applied for a permanent settlement

status in the United Kingdom, believing she needed to stay in the

United Kingdom for additional time so that she could obtain the

necessary documentation from Nisbet for KRN’s U.S. passport.

She was advised by the British Home Office that she was not yet

eligible for a permanent settlement status, so Bridger instead

7a

Appendix A

Bridger told Nisbet multiple times she needed to return

to the United States and reunite with her family.

While in Edinburgh, ACN and KRN attended a

nursery school, and they received regular medical and

dental care. Bridger testified that ACN and KRN “didn’t

actually make friends when they were in Scotland at

nursery.” They made acquaintances elsewhere, “but they

never knew anyone on a name basis.”

ACN and KRN visited Nisbet several times at St.

Andrew’s Hospital in Northampton, England, where

Nisbet has been in custody since April 2021.11 Nisbet

scheduled Skype calls with ACN and KRN from his

psychiatric facility in England every day for an hour.

He tried to read stories and play games with them, but

often after a short period, ACN and KRN stopped paying

attention to Nisbet on the screen.

Bridger never intended Scotland to be more than a

temporary location for her and her children. In December

2021, Nisbet finally signed the necessary documentation

for KRN’s U.S. passport, knowing Bridger intended to

take KRN to the United States. Bridger immediately

applied for a U.S. passport for KRN. While waiting for

months to receive KRN’s U.S. passport, Bridger began

applied for further leave to remain in the United Kingdom on her

partnership visa.

11. Nisbet was initially confined at Brockfield House in

Essex, England, but he was transferred to St. Andrew’s Hospital

in Northampton, England in April 2021.

8a

Appendix A

packing and sent belongings to the United States. On June

17, 2022, Bridger left Scotland for the United States with

ACN and KRN.

B.

On June 12, 2023, Nisbet petitioned under the Hague

Convention that ACN and KRN be returned to Scotland,

which he alleged was their habitual residence. Bridger

responded and requested an expedited trial, which was

granted. Judge Karin J. Immergut of the United States

District Court for the District of Oregon presided over

the expedited trial from October 16 through 18, 2023. Six

days after the trial, on October 24, 2023, Judge Immergut

denied Nisbet’s petition, finding, inter alia, that Nisbet

failed to prove by a preponderance of the evidence that

Scotland was ACN and KRN’s habitual residence. Nisbet

timely appealed.

II.

A.

Under the Hague Convention, “a child wrongfully

removed from her country of ‘habitual residence’

ordinarily must be returned to that country.” Monasky

v. Taglieri, 589 U.S. 68, 70–71, 140 S. Ct. 719, 206 L. Ed.

2d 9 (2020). If a child does not habitually reside anywhere,

the Hague Convention does not apply, and a petition for

return thereunder should be denied. See id. at 82.

In general, a child’s habitual residence is “the place

where he or she has been physically present for an amount

9a

Appendix A

of time sufficient for acclimatization and which has a

‘degree of settled purpose’ from the child’s perspective.”

Karkkainen v. Kovalchuk, 445 F.3d 280, 291–92 (3d Cir.

2006) (citation omitted) (cited with approval in Monasky,

589 U.S. at 77, 78). “This approach considers a child’s

experience in and contacts with her surroundings,

focusing on whether she developed a certain routine and

acquired a sense of environmental normalcy by forming

meaningful connections with the people and places she

encountered.” Id. at 292 (cleaned up) (citation omitted);

see also Monasky, 589 U.S. at 77 (noting the Hague

Convention’s explanatory report referred to a child’s

habitual residence as “the family and social environment

in which [the child’s] life has developed” (alteration in

original) (citation omitted)).

“For older children capable of acclimating to their

surroundings, courts have long recognized, facts indicating

acclimatization will be highly relevant.” Monasky, 589

U.S. at 78. Such facts include “geography combined with

the passage of an appreciable period of time,” “age of the

child,” “immigration status of child and parent,” “academic

activities,” “social engagements,” “participation in sports

programs and excursions,” “meaningful connections

with the people and places,” “language proficiency,” and

“location of personal belongings.” Id. at 78 n.3 (citation

omitted). “Because children, especially those too young or

otherwise unable to acclimate, depend on their parents as

caregivers, the intentions and circumstances of caregiving

parents are relevant considerations.” Id. at 78.

“No single fact, however, is dispositive across all

cases.” Id. Courts determine a child’s habitual residence

10a

Appendix A

by looking at “the totality of the circumstances specific

to [each] case,” id. at 71, and they must be “sensitive to

the unique circumstances of [each] case and informed

by common sense,” id. at 78 (citation omitted). “The

bottom line: There are no categorical requirements for

establishing a child’s habitual residence.” Id. at 80; see

also id. at 78 (quoting Karkkainen, 445 F.3d at 291, for

the proposition that the “inquiry into a child’s habitual

residence is a fact-intensive determination that cannot

be reduced to a predetermined formula and necessarily

varies with the circumstances of each case”).

B.

A habitual-residence determination is a mixed

question of law and fact—“albeit barely so.” Id. at 84.

A trial court must first correctly identify the totalityof-the-circumstances standard. Id. Once it has done so,

what remains is a factual question that can be reviewed

on appeal only for clear error. Id. Under this standard of

review, we cannot reverse a district court’s finding that is

“plausible in light of the record viewed in its entirety,” even

if we are convinced that we would have found differently.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). If “there are

two permissible views of the evidence,” the trial court’s

“choice between them cannot be clearly erroneous.” Id.

(citations omitted).

This standard of review is deferential, so much so

that the Supreme Court has adopted it in the Hague

Convention context with the goal to “speed[] up appeals.”

11a

Appendix A

Monasky, 589 U.S. at 84. Tellingly, we are not aware of

any published opinion post-Monasky, including Monasky

itself, that reversed a trial court’s habitual-residence

determination.12

III

After a three-day trial, the district court found Nisbet

failed to prove by a preponderance of the evidence that

ACN and KRN habitually resided in Scotland when

Bridger brought them to the United States. In making this

finding, the district court took into account the following

facts.13

A.

When Bridger lived with ACN and KRN in Scotland

from late 2019 through June 2022, ACN was approximately

two to four years old, and KRN was less than two and a

half years old.14 Their ability to acclimatize to society was

limited at the time. That said, the district court considered

whether ACN and KRN could have acclimatized to

12. This of course does not prevent us from reversing a district

court’s habitual-residence determination wherever required, just

as the rarity of courts’ finding no habitual residence does not stop

us from affirming such a finding where, as here, required.

13. The parties do not dispute that the district court correctly

identified the governing Monasky standard.

14. ACN also lived with Bridger in Scotland for approximately

six months from August 2018 to February 2019, when he was less

than one year old.

12a

Appendix A

Scotland through three likely ties: people in the societal

surroundings, Nisbet’s family and friends, and Nisbet.

First, the district court found ACN and KRN did not

make any friends at their nursery school or elsewhere in

Scotland. Second, Nisbet’s family severed contact with

Nisbet, Bridger, and their children. Third, the district

court considered ACN and KRN’s lack of connection

with Nisbet. Nisbet has been incarcerated since KRN’s

birth; he lived with ACN only intermittently for at most

a year, half of which time he was bedbound because of his

second suicide attempt. In fact, Nisbet himself has not

lived in Scotland since 2017—he first lived in Jersey, then

he was confined at Brockfield House in Essex, England

and thereafter transferred to St. Andrew’s Hospital in

Northampton, England. Granted, Nisbet tried to interact

with ACN and KRN over Skype from his psychiatric

internment in England every day for an hour. Often after

a short period, however, ACN and KRN stopped paying

attention to Nisbet on the screen. All told, we see no clear

error when the district court concluded ACN and KRN

“had no family or friends in Scotland” and “no meaningful

relationship with their father.”

The dissent criticizes our consideration of whether

ACN and KRN had a meaningful relationship with Nisbet.

Dissent at 39–40. But Monasky teaches that one relevant

factor of the acclimatization inquiry for determining

children’s habitual residence is whether they have built

“meaningful connections with the people” there. 589

U.S. at 78 n.3 (citation omitted). It is not a clear error,

therefore, for the district court to have considered this

13a

Appendix A

factor to conclude ACN and KRN did not habitually reside

in Scotland. Moreover, the dissent also questions the

district court’s conclusion that ACN and KRN lacked a

relationship with Nisbet, given the handful of visits he had

with the children and the Skype calls. Dissent at 39–40.

But the inquiry is not whether the children interacted with

Nisbet at all, but instead whether the relationship was

meaningful. Here, the district court concluded—based

on the entirety of the record, including Bridger’s credible

testimony—that it was not. That the dissent would come

to a different conclusion on this issue does not make the

district court’s conclusion clearly erroneous.

The dissent further contends ACN and KRN had

family in Scotland simply because they lived with each

other and with Bridger. Dissent at 37–38. This is too

clever by half. If the dissent were right, then a child

abducted by a parent would, by definition, have a “family”

in the country to which he is abducted. Such a logic that

categorically favors the abductor parent, of course, cannot

be condoned by the Hague Convention. Tellingly, even

Nisbet’s counsel had to concede at oral argument that

the district court did not clearly err in finding ACN and

KRN had “no family or friends in Scotland,” a point that

the dissent ignores.

B.

Next, the district court followed the Supreme

Court’s teaching in Monasky that “the intentions

and circumstances of caregiving parents are relevant

considerations,” when a child—like ACN, less than four

14a

Appendix A

and a half years old by June 2022, and KRN, less than two

and a half years old at the time—is unable to acclimate

due to his very young age or other reasons. Monasky,

589 U.S. at 78. On the mother’s side,15 Bridger’s intention

and circumstances militate against finding Scotland to

be ACN and KRN’s habitual residence because, as the

district court observed, Bridger “had been shuttled

through Jersey shelters,” “repeatedly contemplated

moving back to Oregon,” and was in the United Kingdom

“on an expiring visa.”

The dissent reads the record differently, concluding

Bridger’s precarious British visa circumstance “strongly

suggests that Bridger intended to remain in Scotland.”

Dissent at 39. To reach this conclusion, the dissent must

disregard a plethora of Bridger’s credible testimony

that she never intended for Scotland to be more than

a temporary location for herself and her children, and

that she sought to renew her U.K. visa in 2021 only

because she believed she needed additional time in the

United Kingdom to obtain the necessary documentation

from Nisbet for KRN’s U.S. passport. That the dissent

disbelieves Bridger’s testimony does not necessarily mean

the district court was mistaken in finding it credible, which

finding Nisbet’s counsel conceded at oral argument was

not clearly erroneous.

The dissent then argues that, in any event, Bridger’s

visa status tells us nothing about ACN and KRN’s habitual

15. Nisbet’s counsel conceded at oral argument that the

district court did not clearly err in finding Bridger to be ACN

and KRN’s caregiver.

15a

Appendix A

residence. Dissent at 39. Not so. Bridger’s precarious

British visa circumstance rendered it much less likely

she intended Scotland to be ACN and KRN’s habitual

residence, and Bridger’s “intention[],” “circumstance[],”

and “immigration status” are all “relevant considerations”

under Monasky, 589 U.S. at 78 & n.3 (citation omitted),

especially when only Bridger was capable of being a

caregiving parent for the very young ACN and KRN,

since Nisbet was imprisoned.

Therefore, the district did not clearly err in placing

significant weight on Bridger’s lack of ties to Scotland

when ascertaining ACN and KRN’s habitual residence.

See Monasky, 589 U.S. at 80 n.4 (recognizing the mother’s

integration to a country as a “highly relevant” factor, if a

young child is “in fact looked after by her mother” (citing

Mercredi v. Chaffe, 2010 E. C. R. I–14309, I–14379, ¶ 55)).16

On the father’s side, the district court afforded little

weight to his role as a caregiver. The district court found

Nisbet arguably “raised ACN in earnest” only “for the

six months between February and August 2019,” and he

did not raise KRN at all because he had been imprisoned

before KRN’s birth. Admittedly, Bridger depended

on Nisbet’s financial support throughout the relevant

time, but that fact alone does not transform Nisbet into

16. In Mercredi, the Court of Justice of the European Union

held that “[a]s a general rule, the environment of a young child

is essentially a family environment, determined by the reference

person(s) with whom the child lives, by whom the child is in fact

looked after and taken care of.” 2010 E. C. R. I–14309, I–14379,

¶ 54.

16a

Appendix A

a caregiving parent. Caregiving means “[a] parent’s or

caregiver’s task that either involves interaction with a child

or directs others’ interaction with a child.” Caretaking

Functions, Black ’s L aw Dictionary (12th ed. 2024).

It does not mean mere financial support. Black’s Law

Dictionary also provides examples of caregiving functions,

which include “feeding and bathing a child, guiding the

child in language and motor-skills development, caring

for a sick child, disciplining the child, being involved in

the child’s educational development, and giving the child

moral instruction and guidance.” Id. Supplying financial

wherewithal is not mentioned.17

Accordingly, we do not find the district court

committed a clear error in focusing on the intention and

circumstances of Bridger, the sole caregiving parent of

ACN and KRN.

C.

Nisbet assails the district court’s decision on three

grounds. None of them suffices as a clear error.

First, Nisbet contends the district court clearly erred

simply because it found ACN and KRN lacked habitual

17. See also Caregiver, Black’s L aw Dictionary (12th ed.

2024) (“A parent, foster parent, or social worker who looks after

and exercises custodial responsibility for an infant or child.”);

Custodial Responsibility, Black’s Law Dictionary (12th ed. 2024)

(“Physical child custody and supervision, usu. including overnight

responsibility for the child.”).

17a

Appendix A

residence altogether.18 This contention is tantamount to a

categorical ban against finding no habitual residence. As

the Supreme Court has made clear, the “bottom line” is

“[t]here are no categorical requirements for establishing a

child’s habitual residence.” Monasky, 589 U.S. at 80. While

a finding of no habitual residence is rare and should be

disfavored, it is not a clear error to render such a finding

if the totality of the circumstances of a particular case so

warrants. See id. at 81 (criticizing only “a presumption

of no habitual residence,” not the finding of no habitual

residence in individual cases); id. at 82 (faulting only a

“categorical” requirement that “would leave many infants

without a habitual residence”). We agree that a finding of

no habitual residence should not be made lightly, but we

do not see a clear error in finding no habitual residence

in the unusual circumstances of this case.19

18. Nisbet cites Grano v. Martin, an out-of-circuit district

court case, for the proposition that courts have read Monasky to

mean a finding of no habitual residence is inappropriate. 443 F.

Supp. 3d 510, 535 (S.D.N.Y.), aff’d, 821 F. App’x 26 (2d Cir. 2020).

But Grano does not lend Nisbet any help. All it suggested was

that Monasky “has mostly undone the no-habitual-residence line

of cases stemming from a lack of parental shared intent, at least

for infants.” Id. (emphasis added).

19. The dissent invites us to consider a counterfactual in

which Nisbet fled his psychiatric facility and abducted ACN and

KRN to Armenia. Dissent at 43–44. In that scenario, everything

else being equal, we believe it would likewise not be a clear error

for an Armenian court to find ACN and KRN lacked habitual

residence in Scotland, if Monasky also governs in Armenia. There

will always be children whom the Hague Convention is incapable of

protecting—the dissent acknowledges as much. See Dissent at 45

(citing cases in which the dissent believes a finding of no habitual

residence were appropriate).

18a

Appendix A

Second, Nisbet maintains the district court clearly

erred in finding ACN and KRN had not habitually resided

in Scotland, “where they had lived for two years and four

months in the same apartment, where they had attended

the same preschool, [and] where all of their medical and

dental visits had occurred.” 20 The Supreme Court has

held a child’s “mere physical presence” in a country “is

not a dispositive indicator of” his habitual residence.

Monasky, 589 U.S. at 81; see also id. at 78 (reasoning

that a place is just “likely” to be a child’s habitual

residence, if the child has lived there “with her family

indefinitely” (emphasis added)). Nor is the attendance in

any preschool determinative. 21 See id. at 78 (“No single

20. Nisbet also asserts ACN and KRN had friends in

Scotland. This assertion, however, finds little support in the record.

The only supporting evidence Nisbet cites is his own conclusory

testimony: “They had friends there. They had nursery. They

were very well-settled and actually had a good life there. They

went to school there.” In contrast, Bridger testified ACN and

KRN “didn’t actually make friends when they were in Scotland

at nursery.” They had acquaintances from elsewhere, but Bridger

also testified “they never knew anyone on a name basis.” Nisbet’s

counsel conceded at oral argument that the district court did not

clearly err in crediting Bridger’s testimony.

21. Nisbet cited several cases from other circuits for his

proposition that a child’s attendance at preschool is one of the most

significant factors in determining the child’s habitual residence.

While those cases might have regarded a child’s attendance at

school as one of the more pronounced factors in the circumstances

of those cases, they do not suggest it to be a dispositive factor

across all cases. Additionally, we note that from 2020 to 2022, ACN

(roughly two to four years old) and KRN (newborn to about two

years old) were so young that, to them, the preschool was more

akin to a daycare center rather than an academic school.

19a

Appendix A

fact” “is dispositive across all cases.”). The ultimate object

for evaluating a child’s social engagement is to assess

acclimatization. Id. at 78 & n.3. Where, as here, factors

such as physical presence and preschool attendance did

not yield any meaningful social connections for a child,

they are not entitled to much salience in courts’ habitualresidence determinations. Therefore, we see no clear error

on the district court’s part. 22

Finally, Nisbet argues the district court clearly

erred by resting its decision on Nisbet’s alleged coercive

behaviors toward Bridger. Not so. The district court made

comments about Nisbet’s coercive behaviors only after it

had “resolve[d] this case in [Bridger’s] favor.” As such,

these comments are dicta and cannot serve as a proper

basis for reversal. 23

22. Nisbet also faults the district court for considering

Bridger’s intention to leave Scotland and Nisbet’s confinement. He

argues such consideration contravenes Monasky’s teaching that

courts should focus on where a child—not either of his parents—is

at home. This argument fails because Monasky expressly licensed

consideration of caregiving parents’ intentions and circumstances,

especially when the children are of such tender age as were

ACN and KRN. 589 U.S. at 78. The dissent contends a parent’s

intent “is most frequently relevant,” when the parent’s physical

presence in a jurisdiction is relatively short, and when courts

determine “whether there has been a change in the children’s

habitual residence.” Dissent at 35–36 (emphasis in original) (citing

pre-Monasky cases). The Supreme Court in Monasky did not

so cabin the consideration of caregiving parents’ intentions and

circumstances. Nor does that factor’s frequent relevance in certain

contexts forecloses its consideration in others.

23. It is also not a clear error for the district court to have

mentioned these coercive behaviors. Whether a caregiving parent

20a

Appendix A

D.

The dissent argues a finding of habitual residence is

“an inquiry into a single determinable fact,” Dissent at

42 (citing Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.

2006), which predated Monasky), and must be “subject

to de novo review,” id. at 31 (praising Silverman v.

Silverman, 338 F.3d 886, 896–97 (8th Cir. 2003), another

pre-Monasky case, for offering “a clear-eyed view” of

the proper standard of review for habitual-residence

determinations). We decline the dissent’s invitation to

insubordination by regressing to a pre-Monasky world.

See Monasky, 589 U.S. at 76 (explicitly abrogating the

Ninth Circuit’s holdings in Mozes v. Mozes, 239 F.3d

1067 (9th Cir. 2001), that placed greater weight on shared

intentions of parents than on children’s acclimatization,

and that subjected district courts’ habitual-residence

determinations to de novo review).

Disregarding the totality-of-the-circumstances

standard set by the Supreme Court in Monasky, the

dissent faults the district court for considering “noise” in

the record such as ACN and KRN’s lack of meaningful

ties with Scotland, for such facts, in the dissent’s view,

answer not the question where the children habitually

resided but where their best interests lay. Dissent at

24–25, 34–35. In the same vein, the dissent accuses the

district court of “broaden[ing]” the factors that bear

is coerced into living in a country is relevant to courts’ habitualresidence determinations. Monasky, 589 U.S. at 78. Notably,

Nisbet’s counsel conceded at oral argument that the district court

did not clearly err in crediting Bridger’s testimony, which included

testimony about Nisbet’s coercive behaviors.

21a

Appendix A

relevance on habitual-residence determinations. Dissent

at 29–30, 45. The district court here, as discussed supra,

firmly anchored its factual considerations to factors that

the Supreme Court in Monasky expressly espoused as

relevant to habitual-residence determinations. The dissent

seems to select some factors to its liking but downgrade

others, contrary to Monasky. See Dissent at 31–32.

Meanwhile, the dissent inserts itself into the trial

courts’ province by attempting to resurrect the de

novo standard of review of Mozes v. Mozes for habitualresidence determinations. 239 F.3d at 1073. We agree

with the dissent that a selection of facts in the record of

this case can be read to support the conclusion that ACN

and KRN habitually resided in Scotland, especially if one

credits Nisbet’s testimony over Bridger’s. See Dissent

at 32–34. That, however, does not mean the district

court clearly erred in finding otherwise, especially when

Nisbet’s counsel conceded at oral argument that it was

not a clear error for the district court to have credited

Bridger’s testimony. The clear-error standard of review,

by definition, admits the possibility that more than one

inference can be drawn from any given record; when that

occurs, a trial court’s choice between these permissible

inferences cannot be clearly erroneous. Anderson, 470 U.S.

at 574. In the end, the habitual-residence determination

“presents a task for factfinding courts”; appellate courts,

once satisfied that the trial courts have considered the

totality of the legally relevant factors, are not entitled to

weigh these factors anew. Monasky, 589 U.S. at 84. The

dissent’s suggestion to bypass the district court flouts

Monasky. See Dissent at 31–32.

22a

Appendix A

As the dissent belittles Monasky, it brandishes the

purpose of the Hague Convention, which aims to protect

children from abduction. See id. at 44–45. But Monasky

is no enemy to the Convention. The dissent may find the

totality-of-the-circumstances test too “standardless,” id.

at 44, but the Supreme Court purposefully put “all the

circumstances” “in play” so that “would-be abductors”

would find it difficult to “manipulate the reality on the

ground.” Monasky, 589 U.S. at 82 (citation omitted). The

dissent may find the clear-error review too inconvenient

for its view to prevail, see Dissent at 31–32, but the

Supreme Court laid down such a deferential standard

of review to preserve “the Convention’s premium on

expedition” and to spare families from lengthy appeals.

Monasky, 589 U.S. at 84 (citation omitted).

Defying Monasky, the dissent is perhaps out of its

place. With respect, we cannot join the dissent’s “protest”

against the Supreme Court. 24 Dissent at 53.

IV.

We owe obedience to the Supreme Court, which

has encouraged trial courts to make habitual-residence

determinations based on “a quick impression gained on a

panoramic view of the evidence.” Monasky, 589 U.S. at 82

(citation omitted). Reviewing such determinations for clear

error, we owe deference to trial courts, which enjoy the

24. As we find the district court’s decision faithfully followed

Monasky, we see no reason to respond to the dissent’s speculation

regarding the district court’s possible underlying motivation. See

Dissent at 25–26.

23a

Appendix A

vantage point of observing witnesses’ demeanor, candor,

and other indicia of credibility.

In this case, as in many cases under the Hague

Convention, reasonable minds can differ as to how evidence

should be appraised. We must refrain from disturbing the

district court’s habitual-residence determination unless

it clearly erred. Because we find it did not, we affirm. 25

AFFIRMED.

BYBEE, Circuit Judge, dissenting:

The Hague Convention on the Civil Aspects of

International Child Abduction is not an agreement as to

the standards for determining questions of child custody

that have spilled over international boundaries. Rather,

like a forum selection clause, it is “a ‘provisional’ remedy

that fixes the forum for custody proceedings.” Monasky

v. Taglieri, 589 U.S. 68, 72, 140 S. Ct. 719, 206 L. Ed.

2d 9 (2020) (citation omitted). The Hague Convention

establishes the proper forum as of a particular place and

time: “the State in which the child was habitually resident

immediately before the removal.” Hague Convention

on the Civil Aspects of International Child Abduction

(“Hague Convention” or “Convention”), Art. 3(a), Oct. 25,

1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted at 51

Fed. Reg. 10498 (March 26, 1986). The question in this case

is whether the children of Spirit Bridger and Dr. Andrew

25. We express no view as to the district court’s discussions

of other issues.

24a

Appendix A

Nisbet had a habitual residence on June 17, 2022, the day

Bridger took the children from Scotland to Oregon.

As of the day in question, Bridger had lived in

Scotland (except for two brief periods when she lived on

the Bailiwick of Jersey, a British Crown Dependency) for

seven years, since 2015. Her children, ACN and KRN,

were British citizens. ACN, about four and a half in June

2022, was born in Jersey, but had lived in Scotland with

his mother since late 2018, except for part of 2019, when

they returned to Jersey. KRN, about two and a half when

she was abducted from Scotland, was born in Scotland and

had never lived anywhere else. Scotland was their father’s

home, and they lived in an apartment he owned and paid

for. The children attended nursery school in Scotland

and received medical and dental care there. Only a year

before she left, Bridger applied to the U.K. Home Office

for her third long-term visa in anticipation of obtaining

“settlement” in Scotland.

Notwithstanding the simplicity of these facts, the

district court concluded that that the children did not

habitually reside in Scotland on June 17, 2022. There is no

alternative country of residence; they simply lacked “any

habitual residence” at all. The majority agrees with the

district court as to “Bridger’s lack of ties to Scotland,”

which renders the children stateless for purposes of

the Hague Convention, and therefore utterly without

protection from parental abduction. Maj. Op. at 14–16.

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That conclusion is beyond all reason. There is a lot of

noise in this record.1 And the majority starts with the

noisiest fact of all: Nisbet killed his mother. Maj. Op. at 4.

The majority continues with other noisy facts: ACN and

KRN didn’t have friends in nursery school in Scotland,

Nisbet’s family has cut off contact with the children, and

Nisbet is a distant father. Maj. Op. at 12–14. The opinion

puts a bow on the exercise by observing that ACN and

KRN are now U.S. citizens and are well settled in Oregon,

where they have health and dental care and the support

of extended family. Maj. Op. at 4 n.2. From all of this, the

majority concludes that the district court committed “[no]

clear error in finding no habitual residence in the unusual

circumstances of this case.” Maj. Op. at 18.

The facts found by the district court and embraced by

the majority are, for the most part, not clearly erroneous.

But they are clearly irrelevant to the only question we

are charged with answering: Did the children have a

habitual residence on June 17, 2022? The majority has

utterly confounded that inquiry because it has pursued,

sub silentio, a different question—the one the district

court also answered: Where is it in the best interests of

the children to live now? When that becomes the question,

the answer seems obvious—Oregon. And once Oregon

1. Bridger and Nisbet’s relationship is long and complicated

and, well before Nisbet killed his mother, not entirely conventional.

Although, as I will explain, that history might be relevant to

deciding questions of custody, it is not relevant to deciding

questions of residence. I do not entirely agree with the way the

majority has laid out the facts, but rather than complicate this

opinion with irrelevant curiosities, I will supply facts as necessary.

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Appendix A

becomes the place, our legal analysis follows logically:

If Oregon is the best place for the children, they are

better off in Oregon courts, not Scottish courts. And if

the Scottish courts are not the best place for resolving

custody questions, then Scotland cannot be the place of

habitual residence. Q.E.D.

The answer to the correct question—where were

the children habitually resident?—should have been

quick and easy. The Supreme Court has held that we

should take a “common sense” approach to the Hague

Convention and said that “[c]ommon sense suggests that

some cases will be straightforward: Where a child has

lived in one place with her family indefinitely, that place

is likely to be her habitual residence.” Monasky, 589

U.S., at 78. We took an easy question and made it hard.

The majority, understandably and like the district court,

takes a sympathetic view of the plight of the children,

but in the end we have done what the Hague Convention

abjures: Instead of “allow[ing] the courts of the home

country to decide what is in the child’s best interests,” we

have decided for ourselves what is in the children’s best

interest and, not surprisingly, we “prefer [Oregon’s] own

society and culture” as a “friendlier forum” for resolving

custody issues. Abbott v. Abbott, 560 U.S. 1, 20, 130 S. Ct.

1983, 176 L. Ed. 2d 789 (2010).

We are well out of our lane. I cannot follow my

colleagues down that road. These children habitually

resided in Scotland, the courts of Scotland are best

situated to determine the custody and access rights of the

parents, and we have to trust the Scottish courts to resolve

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Appendix A

these issues appropriately. Because I believe that we have

violated our obligations under the Hague Convention, I

firmly dissent.

I

Adopted in 1980 in response “to the problem of

international child abductions during domestic disputes,”

the Hague 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

effectively respected in the other Contracting States.”

Abbott, 560 U.S. at 8 (internal citation and quotation marks

omitted). The Convention addresses this problem in two

ways. First, it identifies the proper forum for resolving

these disputes. Second, the Convention provides for the

prompt return of the “wrongfully removed” child to that

forum. The Convention identifies the proper forum as

a particular place at a particular time: where the child

“was habitually resident . . . immediately before any

breach of custody or access rights.” Hague Convention

Art. 4. Under Article 3 of the Convention, “[t]he removal

or the retention of a child is to be considered wrongful

where . . . it is in breach of rights of custody attributed to

a person . . . under the law of the State in which the child

was habitually resident immediately before the removal

or retention.” Id. Art. 3(a). The removal is wrongful

whether the “rights [of custody] were actually exercised

. . . or would have been so exercised but for the removal

or retention.” Id. Art. 3(b). When “[a]ny person” claims

that a child has been wrongfully removed, she may apply

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Appendix A

to the State of the child’s habitual residence or to any

other Contracting State to secure the return of the child.

Id. Art. 8. The International Child Abduction Remedies

Act (“ICARA”), 22 U.S.C. § 9001 et seq., implements the

Hague Convention. Under ICARA, state and federal

courts have concurrent jurisdiction over actions arising

under the Convention. 22 U.S.C. § 9003(a); see 22 U.S.C.

§ 9003(b) (providing that “[a]ny person seeking to initiate

judicial proceedings under the Convention for the return

of a child” may file a petition in “any court which has

jurisdiction of such action”).

Once a party petitions under the Convention,

“Contracting States shall act expeditiously in proceedings

for the return of the children.” Hague Convention Art.

11. The right of return to the jurisdiction of the habitual

residence is the principal remedy available under the

Convention. When the proceedings are commenced

within one year from the date of the wrongful return,

the Contracting State where the child is present must

“order the return of the child forthwith.” Id. Art. 12. The

Convention makes clear that any decision “concerning the

return of the child shall not be taken to be a determination

on the merits of any custody issue.” Id. Art. 19; see 22

U.S.C. § 9001(b)(4) (providing that U.S. courts may

“determine only rights under the Convention and not

the merits of any underlying child custody claims”).

The return remedy is a “provisional” one “that fixes the

forum for custody proceedings.” Monasky, 589 U.S. at 72.

This is because the “Convention is based on the principle

that the best interests of the child are well served when

decisions regarding custody rights are made in the

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country of habitual residence.” Abbott, 560 U.S. at 20.

Under ICARA, the party seeking return must establish

the child’s “habitual residence” by a preponderance of the

evidence. 22 U.S.C. § 9003(e)(1)(A).

As relevant here, there is an exception to the right of

return. A “State is not bound to order the return” if the

party opposing return established that “there is a grave

risk to his or her return [that] would expose the child to

physical or psychological harm or otherwise place the

child in an intolerable situation.” Hague Convention Art.

13(b). ICARA provides that the party opposing return

must establish the “grave risk” by clear and convincing

evidence. 22 U.S.C. § 9003(e)(2)(A).

The district court here concluded that Nisbet failed

to carry his burden of proving by a preponderance of

the evidence that ACN and KRN habitually resided in

Scotland prior to their mother removing them to Oregon.

In the alternative, the district court concluded that

Bridger showed by clear and convincing evidence that

the children would be subject to grave risk if they were

returned to Scotland. Because I conclude in Part II below

that the district court’s conclusion with respect to habitual

residence is erroneous as a matter of both law and fact,

I will address in Part III the district court’s errors with

respect to the grave risk.

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Appendix A

II

A

Although “‘[h]abitual residence’ is the central—often

outcome-determinative—concept” in Hague Convention

cases, Mozes v. Mozes, 239 F.3d 1067, 1072 (9th Cir. 2001),

neither the Convention nor ICARA defines the term. But

there are basic principles. “A child ‘resides’ where she

lives,” and [h]er residence in a particular country can

be deemed ‘habitual,’ . . . when her residence there is

more than transitory.” Monasky, 589 U.S. at 76 (citations

omitted). The Court has explained that the Convention’s

explanatory report refers to “‘the family and social

environment in which [the child’s] life has developed’”

such that “[w]hat makes a child’s residence ‘habitual’

is therefore ‘some degree of integration by the child

in a social and family environment.’” Id. at 77(citations

omitted). According to the Court, “[t]he place where a child

is at home, at the time of removal or retention, ranks as

the child’s habitual residence.” Id. (quoting Karkkainen

v. Kovalchuk, 445 F.3d 280, 291 (3d Cir. 2006)). The

Court has not identified any particular set of criteria for

determining residence but has described the inquiry as

depending on “common sense.” Id. at 78.

The majority places great weight on Monasky’s

charge that “[t]here are no categorical requirements

for establishing a child’s habitual residence,” and that

the inquiry is a “fact-intensive determination . . . [that]

necessarily varies with the circumstances of each case.”

Monasky, 589 U.S. at 78, 80. See Maj. Op. at 11; see also

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Appendix A

id. at 12 (noting that there is no case post-Monasky that

reverses a trial court’s habitual-residence determination).

The lack of a fixed formula and a totality-of-thecircumstances inquiry does not free us from deciding

what is and is not legally relevant. That there are “no

categorical requirements” does not mean that anything

goes. For example, a finding that one parent favors Real

Madrid, while the other parent likes Manchester United

may not be clear error, but it is legally irrelevant to

determining one’s residence. Monasky cannot be read so

broadly. The Court said the habitual-residence inquiry was

a mixed question of law and fact that “begins with a legal

question: What is the appropriate standard for habitual

residence?” Monasky, 589 U.S. at 84 (emphasis added).

A “totality-of-the-circumstances standard” is not an

invitation to consider the totality of any circumstances

the district court deems relevant. The majority, however,

has taken Monasky as license for “anything goes.” As the

majority explains it, everything is on the table: You cannot

“select some factors . . . but downgrade others[.]” Id. at

21. If every fact is potentially relevant and of equal value,

it is hard to imagine what makes the majority think “[a]

habitual-residence determination is a mixed question of

law and fact.” Id. at 11 (citing Monasky, 589 U.S. at 84).

As Justice Scalia once colorfully observed, accepting a

totality-of-the-circumstances test without knowing what

is relevant may be “judge-liberating” but it is like taking

the facts and “chuck[ing them] into a brown paper bag

and shak[ing them] up to determine the answer.” Metro.

Life Ins. Co. v. Glenn, 554 U.S. 105, 128–29, 128 S. Ct.

2343, 171 L. Ed. 2d 299 (2008) (Scalia, J., dissenting); see

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Burnham v. Sup. Ct. of Cal., 495 U.S. 604, 626, 110 S. Ct.

2105, 109 L. Ed. 2d 631 (1990) (plurality op. of Scalia, J.)

(“[D]espite the fact that he manages to work the word

‘rule’ into his formulation, Justice Brennan’s approach

does not establish a rule of law at all, but only a ‘totality

of the circumstances” test, guaranteeing what . . . rules of

jurisdiction were designed precisely to avoid: uncertainty

and litigation . . . .”).

In my view, the Eighth Circuit has offered a cleareyed view of the proper role for our review, one perfectly

consonant with Monasky:

We recog nize that a habitual residence

determination must be based on facts and

that the facts will vary considerably in each

situation. But a district court’s determination

of habitual residence is not devoid of legal

principles. . . . If habitual residence is treated

as a purely factual matter, to be decided by an

individual judge in individual circumstances

unique to each case, parents will never be able

to guess, let alone determine, whether they

are at risk of losing custody by allowing their

children to visit overseas or in allowing them

to make international trips with an estranged

spouse. . . . [H]abitual residence [must] be a legal

determination subject to de novo review . . . .

Silverman v. Silverman, 338 F.3d 886, 896–97 (8th Cir.

2003) (en banc). Although the majority states that we are

not to interfere with questions that are within the trial

courts’ province, it appears to acknowledge that whether

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Appendix A

the district court correctly applied the totality-of-thecircumstances test is a question that is subject to more

stringent review than review for clear error. Maj. Op. at 22

(noting that appellate courts must consider whether “trial

courts have considered the totality of the legally relevant

factors”) (emphasis added). Embracing a totality-of-thecircumstances test does not mean that all facts are of

equal weight. Some circumstances are more relevant than

others. We abandon our responsibility to the law if are

not discerning in the weight we give to the various facts.

In Monasky, the Court boiled the “appropriate

standard for habitual residence” down to a single factual

question: “Was the child at home in the particular country

at issue?” Monasky, 589 U.S. at 84. It is to the facts

supporting that inquiry that I now turn.

B

This should have been a very simple case. As the

Court observed in Monasky, if “a child has lived in one

place with her family indefinitely, that place is likely to be

her habitual residence.” 2 Id. at 78. ACN and KRN were

young children when they were taken to the United States.

As such we can reasonably look to the residence of their

mother, who had been their primary custodial parent for

their entire lives. See id. at 80 n.4; Delvoye v. Lee, 329

2. Puzzlingly, despite the majority’s extensive—indeed, almost

exclusive—reliance on Monasky, it dismisses this statement. Maj.

Op. at 18–19 (stating that the Court “reason[ed] that a place is just

‘likely’ to be a child’s habitual residence, if the child has lived there

‘with her family indefinitely’“) (emphasis omitted).

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Appendix A

F.3d 330, 333 (3d Cir. 2003) (“‘[I]n practice it is often

not possible to make a distinction between the habitual

residence of a child and that of its custodian. Where a child

is very young it would, under ordinary circumstances, be

very difficult for [her] to have the capability or intention

to acquire a separate habitual residence.’” (quoting Paul

Beaumont & Peter McEleavy, The Hague Convention on

the International Child Abduction 91 (1999))). Bridger

had a stable presence in Scotland. Except for two brief

periods when she lived on the isle of Jersey with Nisbet’s

parents, Bridger had lived in Scotland since 2015. Not

only had she resided there for some seven years, she had

also resided in the same apartment in Edinburgh—one

belonging to Nisbet—for her entire sojourn. From at least

early 2020, she attended a weekly knitting club and had

at least one friend there who she confided in. D. Ct. Op.

at 12 & n.7. Bridger obtained a U.K. driver’s license and

drove after Nisbet’s father put her on his car insurance.

By any ordinary meaning of “habitual residence,” Bridger

habitually resided in Scotland on June 17, 2022, the day

she took the children to Oregon. If, as Bridger’s counsel

stated at oral argument, “the children’s home is with their

mother,” then ACN and KRN’s home was in Scotland.

This case is equally easy if we focus exclusively on

the children. ACN was born in Jersey and lived there

briefly with both of his parents. When he was less than

a year old, he moved to Scotland with his mother for six

months, then moved back to Jersey, where he again lived

with both of his parents at his grandparents’ home until

Nisbet was taken into custody. Shortly thereafter, ACN

moved back to Scotland, where he lived with his mother

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Appendix A

(and, later, his younger sister) in the apartment owned

by his father. Money to live on came from his father. By

the time his mother took him to the United States when

he was about four-and-a-half years old, he had lived in

Scotland for most of his life and continuously since he was

a year and a half old. He attended nursery school there,

he received medical and dental care there, and Bridger’s

family visited him there. Scotland was clearly the location

of “the family and social environment in which [ACN’s]

life ha[d] developed” until June 17, 2022. Mozes, 239 F.3d

at 1081 (citation omitted).

For KRN, this case is even simpler. She was born in

Scotland and lived there with her mother and older brother

in her father’s apartment and at her father’s expense for

her entire life, until the time her mother took her to the

United States. Except for a period of time during COVID

lockdowns, she went to nursery school there. She received

medical care there. Her mother’s family from the United

States visited KRN there. She had personal belongings

there that were important enough that her mother chose

to delay leaving Scotland so that she could send those

belongings to the United States. Her two and a half years

in Scotland, with all of the surrounding circumstances,

easily suffice to establish that her presence in Scotland

was “more than transitory.” Monasky, 589 U.S. at 76; cf.

28 U.S.C. § 1738A(b)(4) (defining “home State” for full

faith and credit purposes in domestic custody cases as the

place where the “the child lived with his parents . . . for at

least six consecutive months”). A more complete picture of

a “customary” or “usual” place where one “lives” is hard

to imagine. Id.

36a

Appendix A

C

Notwithstanding the clarity of the facts and principles,

the district court concluded that Nisbet failed to show by

a preponderance of the evidence that ACN and KRN

habitually resided in Scotland. The court pointed to several

facts: (1) Bridger “repeatedly contemplated moving back

to Oregon,” (2) “[t]he children had no family or friends

in Scotland,” (3) Bridger was in the United Kingdom on

an expiring visa, (4) the children had “no meaningful

relationship with their father,” who lived in England, not

Scotland, and (5) Nisbet “used his children as leverage

to force [Bridger] to stay.” D. Ct. Op. at 14–15; see Maj.

Op. at 12–14. With respect to the question of where the

children habitually resided, the first four of these findings

are clearly erroneous, clearly irrelevant, or both. I will

address each one.

(1) Bridger’s intent. Bridger’s intent to leave Scotland

at some future time and return to Oregon did not

prevent the children from becoming habitually resident

in Scotland. Norinder v. Fuentes, 657 F.3d 526, 534 (7th

Cir. 2011); Mozes, 239 F.3d at 1077 & n.26. Although “the

intentions and circumstances of caregiving parents are

relevant considerations,” Monasky, 589 U.S. at 78, when

“a child has no clearly established habitual residence

elsewhere, [the child] may become habitually resident

even in a place where [the child] was intended to live only

for a limited time,” Mozes, 239 F.3d at 1082. The Hague

Convention deliberately chose the phrase “habitual

residence,” which is “not equivalent to the American legal

concept of ‘domicile,’ which relies principally on intent.”

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Appendix A

Guzzo v. Cristofano, 719 F.3d 100, 103 (2d Cir. 2013).

Accordingly, “a family need not intend to remain in a given

location indefinitely before establishing habitual residency

there.” Watts v. Watts, 935 F.3d 1138, 1144 (10th Cir. 2019).

The cases bear out that a parent’s intent is most

frequently relevant to determining habitual residence

in two circumstances. First, it may be relevant when

the parent’s physical presence in the jurisdiction was

relatively short. See Kijowska v. Haines, 463 F.3d 583,

587–88 (7th Cir. 2006); Delvoye, 329 F.3d at 332. 3 Second,

parental intent may be relevant when we are determining

whether there has been a change in the children’s habitual

residence. See Pfeiffer v. Bachotet, 913 F.3d 1018, 1024

(11th Cir. 2019) (per curiam) (“We have set forth two

requirements to alter a child’s habitual residence: (1) the

parents must share a ‘settled intention’ to leave the old

habitual residence behind; and (2) an ‘actual change in

3. Bridger’s situation bears little resemblance to the facts

of Kijowska v. Haines, which is the case relied on by the district

court to conclude that Bridger’s intent and immigration status

were relevant to the children’s habitual residence. D. Ct. Order at

14. In that case, the mother, a Polish citizen, had overstayed her

student visa. Notwithstanding her immigration status, the mother

gave birth in the United States to a daughter and two months

later took her to Poland, where the child also had citizenship. The

court held that the child had never established residence in the

United States and that Poland was the child’s habitual residence:

“[I]t is impossible to reconcile [the father’s] initial disavowal of

custody over [the child], and [the mother’s] expectation (based

on her immigration status . . .) that she would be returning with

[the child] to Poland, with [the child’s] having acquired a habitual

residence in the United States.” 463 F.3d at 588.

38a

Appendix A

geography and the passage of a sufficient length of time

for the child to have become acclimatized’ must occur.”

(citation omitted)). So, if for example, we were trying to

decide which of two countries was the habitual residence,

we might consider the parents’ intent. See Silverman,

338 F.3d at 898–99; Mozes, 239 F.3d at 1076–77; Feder v.

Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995). Outside of

these circumstances, a parent’s unilateral intent to return

to another country—especially one that the child has

never lived in—is not relevant to determining habitual

residence.4 Neither of these two circumstances applies

4. See Norinder, 657 F.3d at 534 (finding that the child’s

habitual residence was in Sweden even though he lived there for

less than two years and his parents “thought that they might one

day return to the United States”); Barzilay v. Barzilay, 600 F.3d

912, 918–19 (8th Cir. 2010) (explaining that even though parents

may not have intended to remain in the United States permanently,

the children habitually resided in the United States because the

children lived here “most or all of their young lives”); Sorenson

v. Sorenson, 559 F.3d 871, 874 (8th Cir. 2009) (concluding that

the child habitually resided in Australia after living there for

three years); Robert v. Tesson, 507 F.3d 981, 996–97 (6th Cir.

2007) (determining that less than one year in the United States

was enough to acquire habitual residence because the children

enrolled in school, traveled to Yellowstone, and visited their

grandmother); Koch v. Koch, 450 F.3d 703, 717–19 (7th Cir. 2005)

(concluding that “the objective facts point[ed] unequivocally” to

habitual residence in Germany, even though the parents intended

to return to the United States at some point) (citation omitted);

Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004) (concluding

that the child was habitually resident in Canada even though the

parents agreed the stay would be “of a limited duration”); Miller v.

Miller, 240 F.3d 392, 400 (4th Cir. 2001) (finding that the children’s

habitual residence was Canada because they were born there and

39a

Appendix A

here. Bridger lived in Scotland for seven years, there has

not been any change in ACN’s residence since before KRN

was born, and no change whatsoever in KRN’s residence.

There is no alternative habitual residence. In this case,

the question of habitual residence is “Scotland or nothing.”

(2) Family and friends in Scotland. The district

court’s finding that the children “had no family or friends”

in Scotland is just plain error. Of course the children had

family in Scotland. The children lived with their mother.

ACN lived with his sister, KRN; KRN lived with her

brother. That the children had extended family living

elsewhere doesn’t change their habitual place of residence.

The majority misunderstands the point: ACN and

KRN had well-settled family in Scotland, and that makes

the district court’s finding that they had no family there

clear error. The majority claims this is “too clever by half”

because “a child abducted by a parent would, by definition,

have a ‘family’ in the country to which he is abducted.”

Maj. Op. at 14. From this the majority concludes that “such

a logic that categorically favors the abductor parent, of

course, cannot be condoned by the Hague Convention.” Id.

lived there “with their mother for a substantial portion of their

lives”); Feder, 63 F.3d at 224 & n.13 (explaining that a four-year-old

child’s habitual residence was Australia after he lived there for six

months and attended preschool there because the United States

was the country of his “relatively distant past and [his mother’s]

unilaterally chosen future”); Friedrich v. Friedrich (Friedrich

I), 983 F.2d 1396, 1402 (6th Cir. 1993) (concluding that the child

habitually resided in Germany where he was born and lived until

his mother took him to the United States).

40a

Appendix A

But this fundamentally misunderstands how the Hague

Convention works. Having family (especially immediate

family that a child lives with) in Scotland is highly relevant

to whether Scotland is the child’s habitual residence; that

a child has family (immediate or otherwise) in a far-off

jurisdiction where the child has never resided has nothing

to do with the child’s habitual residence. The majority

has mistaken the merits of the underlying custody

determination for the only question the Hague Convention

answers: Where is the proper forum for addressing the

merits?

(3) Bridger’s visa status. The finding that Bridger

was in Scotland on an expiring visa is irrelevant, at

best. Bridger testified that she originally obtained an

entrepreneur visa for the U.K. so that she could open a

coffee shop in Scotland, where she was living with Nisbet.

When that didn’t materialize, she applied in 2018 for a

domestic partnership visa, good for 30 months. In 2021,

she applied for a “settlement” visa, which would allow her

to remain indefinitely. The U.K. Home Office advised her

that her application would be denied because she could

not satisfy the residency requirement by combining her

time in Scotland under the two different visas. Told of this

in April 2021, Bridger wrote the U.K. Home Office and

changed her application to seek renewal of her 30-month

partnership visa. The following day Nisbet wrote a letter

in support of Bridger’s application, advising the U.K.

Home Office that she was his partner, that she and their

two children were resident in his apartment, and asking

that Bridger be granted “Indefinite Leave to Remain” in

the U.K. in their “permanent home.” The record does not

41a

Appendix A

indicate whether Bridger’s partnership visa was renewed

a second time, but the district court’s finding that her

visa was expiring—rather than expired—suggests that

Bridger’s 2021 renewal was successful. See Maj. Op. at

6 n.7, 8 n.10. All of this strongly suggests that Bridger

intended to remain in Scotland. In any event, given her

seven-year residency in Scotland, Bridger’s immigration

status tells us nothing relevant about where she or her

children habitually resided before Bridger decided to

return to the United States.

(4) The children’s relationship with their father. The

district court gave us precious few details, but when

Bridger has been the primary caregiver, the quality of

the children’s relationship with their father, and whether

their father lived in Scotland or England, has nothing to

do with where the children habitually resided on June 17,

2022. Compare Monasky, 589 U.S. at 78 n.3 (discussing

the relevance of “meaningful connections with the people

and places in the child’s new country”; emphasis added)

with id. at 80 n.4 (stating that a “caregiving parent’s ties to

the country at issue are highly relevant”). Those questions

might be relevant to a court deciding rights of custody and

access, but not to the Convention’s antecedent question of

which court has the right to jurisdiction.

Even if relevant, the district court’s findings on the

children’s lack of a relationship with their father are

highly questionable. Bridger took the children to see their

father in England on at least four occasions between 2019

and 2021, spending several days during at least three of

those visits with Nisbet. When they visited in June 2021,

42a

Appendix A

for example, they spent four days with Nisbet. They

returned the following month for an additional four days.

In December 2021, Bridger took the children to see their

father for two days. Between visits, Nisbet spoke with

his children by Skype almost every day. During those

calls, he read them stories and played games with them.

He also talked regularly with Bridger about the children

and their care, and he gave Bridger $180,000 for herself

and the children in case anything happened to him. The

majority seems to place great weight on the fact that, over

time, the children took less interest in their father’s calls.

Maj. Op. at 8–9, 13. That the relationship was imperfect

does not mean that they had “no meaningful relationship.”

The district court offered no explanation for its finding.

(5) Coercion. The one factor that the district court

cited that might overcome Bridger’s obvious residence in

Scotland is whether Bridger was coerced into staying in

Scotland. 5 In Monasky, immediately after observing that

“[w]here a child has lived in one place with her family . . .

that place is likely to be her habitual residence,” the Court

offered a qualification: A court should consider whether

“an infant lived in a country only because a caregiving

parent had been coerced into remaining there.” Monasky,

589 U.S. at 78. The Court has provided little guidance on

what qualifies as coercion, thereby nullifying a finding of

habitual residence. The district court’s findings on Nisbet’s

“coercive behavior” are maddeningly thin. Here is the

complete discussion:

5. Curiously, the majority dismisses the court’s findings

on coercion as “dicta [that] cannot serve as a proper basis for

reversal.” Maj. Op. at 20.

43a

Appendix A

[Nisbet] levied many demands on [Bridger]

in exchange for his signature and money—

including daily hours-long phone calls—and he

threatened her, in ways that could also harm the

children when she did not meet his demands.

On this evidence, [Nisbet] used his children as

leverage to force [Bridger] to stay.

D. Ct. Op. at 15. The court has provided no evidence

as to how Nisbet was coercing Bridger into remaining

in Scotland or how Nisbet could “harm” the children.6

Bridger had lived in Nisbet’s apartment in Edinburgh

since 2015, long before they had children. At the time that

she took the children to the United States, she was alone

in the apartment because Nisbet was institutionalized.

Nevertheless, Bridger testified that she took the children

to Nisbet’s mental health institution in England multiple

times to see their father. The record contains family

photos of Bridger, Nisbet, and ACN and KRN at Nisbet’s

facility. Bridger scheduled daily video calls, up to an hour,

so that Nisbet could talk with his children and read them

stories. D. Ct. Op. at 10. Bridger applied to Scotland for a

domestic partnership visa in 2018 and a renewal in 2021.

And then there is the money. Bridger said that, after

Nisbet was institutionalized, he gave her $180,000 to care

for herself and the kids in case anything happened to him

and because he didn’t want all of his money to going to

his mounting legal fees. This is not the stuff of coercion.

See Mauvais v. Herisse, 772 F.3d 6, 12–13 (1st Cir. 2014)

6. Bridger bears the burden of proving coercion, because it

is a defense to a finding of habitual residence.

44a

Appendix A

(finding no clear error in the district court’s conclusion

that the mother was not coerced to remain in Canada

because she chose to stay in Canada even after she moved

out of the father’s household). I do not see how the record

supports any inference that Bridger was restrained in

Scotland against her will. She may have been anxious

to leave Scotland, she may have worried about her visa

status, she may have been concerned that she could not

lawfully leave with the children, or she may have worried

that she was still needed as a witness in any criminal case

against Nisbet, but none of this suggests that Scotland was

not and had not been her—and the children’s—regular

residence.

D

Two final observations are in order here. First,

determining the habitual residence of the children should

be a neutral inquiry. The Convention fixes the forum

at a particular place (“habitual residence”) and time

(“immediately before any breach of custody or access

rights.”). It is not a balancing test, but an inquiry into a

single determinable fact. See Kijowska, 463 F.3d at 587

(“‘habitual residence’ should bear a uniform meaning,

independent of any jurisdiction’s notion of domicile”). The

Convention’s forum-fixing inquiry is neutral in two senses:

The habitual residence of the children does not change

depending on what court is deciding the question, and the

habitual residence inquiry does not turn on whether the

mother, the father, or some other person absconded with

the children. Determining habitual residence should yield

a single answer. See 22 U.S.C. § 9001(b)(3)(B) (recognizing

45a

Appendix A

“the need for uniform international interpretation of the

Convention”).

Let’s test the district court’s analysis with a simple

counterfactual. Let’s suppose that Nisbet left the confines

of his mental health institution and secreted ACN and

RKN to a far-flung country, say Armenia. (Although we

could use Brazil, Mauritius, Burkina Faso, Seychelles, or

a hundred other countries which, like Armenia, are all

signatories to the Convention.) That would have forced

Bridger to “apply either to the Central Authority of the

child’s habitual residence or to the Central Authority of

any other Contracting State for securing the return of

the child.” Hague Convention Art. 8. In this situation,

Bridger has no argument that Oregon is the children’s

habitual residence. It is Scotland or nothing, which means

that her choice of fora would be either Scotland, as the

habitual residence of the children, or Armenia, where

the children are physically present with their father. Is

it plausible that the Armenian courts would deny return

of the children because they “lacked a habitual residence

altogether” because—despite the fact that their mother

had lived in Scotland for seven years and the children

were U.K. citizens and had lived in Scotland for most

of their lives—the children had few friends in Scotland,

they had no meaningful relationship with their father

(who lived in England), and their mother’s U.K. visa

was about to expire? D. Ct. Order at 14–15. To state the

problem in this way is to recognize how preposterous the

court’s conclusion is. The consequence of our hypothetical

Armenian court’s determination would be that Bridger

would have to litigate her custody and access rights in

Armenia, likely under Armenian law. It is obvious that

in this hypothetical that Bridger would have every right

46a

Appendix A

to protest the unfairness of allowing Nisbet to choose a

hostile foreign forum, and in these circumstances, she

would surely claim that the children were habitually

resident in Scotland. The majority’s “Scotland for me, but

not for thee” analysis cannot withstand scrutiny.7

Second, and relatedly, the major ity ’s nea rly

standardless review will only encourage parents to

choose their own forum. Children who have no habitual

residence are “outside the Convention’s domain” and

therefore unprotected from abduction. See Monasky, 589

U.S. at 82. And the most vulnerable children, the ones

most likely to have no habitual residence, are generally

young infants. Infants and young children deserve our

special consideration under the Convention because

they are the least able to understand what is happening

to them, and the least able to voice any opposition. See

Hague Convention Art. 13(b) (providing that a State may

refuse to return a child “if it finds that the child objects

to being returned and has attained an age and degree of

maturity at which it is appropriate to take account of its

views”); Monasky, 589 U.S. at 80–81. A judgment that

children have no habitual residence effectively makes them

stateless; they are not only subject to the whims of the

parent who first abducts them, but they may be subject

to competing efforts by their parents to find a favorable

forum. 8

7. The majority does not disagree with my counterfactual.

The majority comments that “[t]here will always be children whom

the Hague Convention is incapable of protecting.” Maj. Op. at 18

n.19. This is not reassuring.

8. These concerns are far from theoretical. In In re A.L.C.,

607 Fed. Appx. 658 (9th Cir. 2015), we held that the district court

47a

Appendix A

I agree with the majority’s statement that “a finding

of no habitual residence is rare and should be disfavored,”

nor should it “be made lightly[.]” I emphatically disagree

that the “unusual circumstances of this case” warrant

such a finding. Maj. Op. at 18. What the majority does

here is broaden the relevant factors from which courts

may conclude that a child has no habitual residence, and

that makes it more likely that children will be successfully

kidnaped by one parent in search of a friendly forum.

Instead of limiting a finding of no habitual residence to

young infants whose situation was genuinely transitory,

see, e.g., Kijowska, 463 F.3d at 587 (two months old);

Delvoye, 329 F.3d at 333 (two months old), the majority now

creates precedent that I fear will remove the Convention’s

protections for children in a wider range of circumstances.

clearly erred when it concluded that E.R.S.C. was a habitual

resident of Sweden, a country that she never lived in. Id. at

662. But we also agreed that the nine months E.R.S.C. lived in

Los Angeles immediately following her birth did not make her

a habitual resident of the United States, either. Id. at 662–63.

Because E.R.S.C. had no habitual residence, she had not been

wrongfully retained by her mother in the United States. Id. at 663.

Nor was she wrongfully retained in Sweden by her father, after she

was returned to Sweden because the district court—erroneously,

as it turned out—determined that was her country of habitual

residence and ordered her return. Id. E.R.S.C., a nine-month-old

infant, was left without protection under the Hague Convention,

and both parents were left without a remedy. The winning parent

was whoever grabbed the child last. See Taglieri v. Monasky, 907

F.3d 404, 415 n.4 (6th Cir. 2018) (en banc) (Boggs, J., concurring)

(“[A] finding of no habitual residence means that either parent,

regardless of gender, is free to abduct the child . . . and the Hague

Convention would have nothing to say about it.”), aff’d, 589 U.S.

68, 140 S. Ct. 719, 206 L. Ed. 2d 9 (2020).

48a

Appendix A

These consequences are precisely what the Hague

Convention was designed to avoid. The Convention

provides a neutral rule for forum selection. Our judgment

has undone the careful work of the Convention in this case.

III

I now turn to the district court’s alternative holding

that, even if Scotland is the children’s habitual residence,

“there is a grave risk that [their] return would expose

[them] to physical or psychological harm or otherwise

place [them] in an intolerable situation.” Hague Convention

Art. 13(b).9

The Convention provides little guidance as to what

counts as a grave risk to the physical or psychological

harm of the child. The grave risk standard presents

a particular dilemma, because unlike the inquiry into

habitual residence, grave risk of harm may overlap with

the “best interest of the child” standard that courts often

use to judge the merits of battles over parental custody

and access. And, as I have pointed out, both the Convention

and ICARA make clear that their purpose is not to make

any “determination on the merits of any custody issue.”

Hague Convention Art. 19; see 22 U.S.C. § 9001(b)(4);

Gaudin v. Remis, 415 F.3d 1028, 1035 (9th Cir. 2005) (“the

exception for grave harm to the child is not license for a

court in the abducted-to country to speculate on where the

child would be happiest”; citation omitted). Acknowledging

that a grave risk inquiry may overlap with the merits of a

9. The majority does not reach this issue. Maj. Op. at 23 n.25.

49a

Appendix A

dispute, the courts have held that the grave-risk exception

must “be interpreted narrowly, lest it swallow the rule.”

Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007). Thus,

we have said that it only applies to prevent a child’s return

to the country of habitual residence in “extreme cases.”

Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010). “The

potential harm to the child must be severe, and the level

of risk and danger required to trigger this exception has

consistently been held to be very high.” Souratgar v. Lee,

720 F.3d 96, 103 (2d Cir. 2013) (cleaned up).

We have expressly narrowed the scope of the grave

risk inquiry. In order to avoid opining on the fitness of the

parents, we have made clear that

the district court must be mindful that it is not

deciding the ultimate question of custody, or

even permanent return of the child to [the State

of their habitual residence]. That decision will

be made by the appropriate . . . tribunal [in the

State of their habitual residence]. The district

court must determine only whether returning

the children . . . for long enough for the . . .

courts to make the custody determination will

be physically or psychologically risky to them.

Mozes, 239 F.3d at 1086 n.58 (second emphasis added).

As we recently explained, “The question, then, ‘is not

whether the child would face a risk of grave harm should

she permanently reside in [France], but rather whether

she would face such a risk while courts in [France] make

a custody determination.’” In re ICJ, 13 F.4th 754, 765

50a

Appendix A

(9th Cir. 2021) (citation omitted); see Gaudin, 415 F.3d at

1037 (“[T]he grave-risk inquiry should be concerned only

with the degree of harm that could occur . . . during the

period necessary to obtain a custody determination.”);

Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th

Cir. 1995) (“The Article 13(b) inquiry . . . only requires

an assessment of whether the child will face immediate

and substantial risk of an intolerable situation . . . pending

final determination of [the] custody dispute.”).

Here, the district court concluded that there is a

grave risk of harm to the children if they are returned

to Scotland. The district court again made several

supporting findings of fact: (1) “sending the children

alone to Scotland while [Nisbet] is confined is facially

an intolerable situation,” D. Ct. Order at 18; (2) Nisbet

“meets the major risk factors for domestic violence,” id.

at 16; (3) Nisbet “has given inconsistent testimony to those

meant to diagnose him,” id. at 18; (4) Nisbet has shown

“coercive, manipulable, violent, and threatening behavior”

towards Bridger and their children, id. at 20; and (5) “the

grave risk of displacing the children is starker still when

juxtaposed with depriving the children of their mother and

their support network in Oregon” because they have an

“especially strong bond with their mother. And in Oregon,

the children have family, friends, and social benefits that,

if returned to Scotland, they would lose in an extremely

short time frame,” id. at 20–21.

As with the district court’s habitual residence findings,

these findings, even if not clearly erroneous, are clearly

irrelevant to the question whether the children were

51a

Appendix A

returned to Scotland “for long enough for the [Scottish]

courts to make the custody determination.” Mozes, 239

F.3d at 1086 n.58. Whether considered individually or

collectively, these findings do not establish by “clear

and convincing evidence” that ACN and KRN would be

subject to grave risk if returned to Scotland for custody

proceedings. Let’s look at each finding.

(1) “Facially intolerable.” The district court’s finding

that sending the children back to Scotland is “facially . . .

intolerable” is a conclusion, not a finding of fact. We have

no standards for judging this as a finding of fact.

(2) Risk for domestic violence. The finding that

Nisbet shows “major risk for domestic violence” is pure

speculation, based on a broad profile supplied by Dr.

Poppleton, Bridger’s expert, who repeatedly testified that

he was discussing general risks to children and would

not offer any opinions on whether Nisbet was a risk.

The district court’s finding is not based on any historical

evidence, because, as the district court acknowledged

“there was no evidence that [Nisbet] physically abused

[Bridger] or the children.” D. Ct. Order at 20. In any event,

it is not clear what this finding shows, because no one has

suggested that Nisbet would have physical custody of the

children during any court proceedings in Scotland.

(3) Inconsistent information to medical providers.

The court’s finding that Nisbet gave inconsistent

information to medical personnel treating him, without

knowing the particulars, is apropos of nothing. The

district court’s finding that Nisbet gave misleading

52a

Appendix A

information, especially in the absence of a finding of how

it related to the risk of harm to the children if they are

returned to Scotland for court proceedings, is irrelevant

to the grave risk of harm.

(4) Coercion. The district court’s finding on coercion

has no more basis in the grave risk analysis that it did in

the habitual residence inquiry—Nisbet is institutionalized

in England, he was as attentive to Bridger and the children

as his circumstances would permit, and he was financially

supporting Bridger and the children in Scotland. He

willingly signed the papers for ACN and KRN to obtain

American passports. Where is the duress? Where is the

grave risk? The district court had no answers beyond its

bare assertion of coercion and manipulation.

(5) The children’s support network in Oregon. Finally,

the district court’s finding that the children would lose

their bonds with family and friends in Oregon, even if

returned to Scotland for “an extremely short time frame,”

turns the Hague Convention on its head. It is not only a

merits-based inquiry; it rewards Bridger for taking the

children to Oregon and for every day that the proceedings

in this case were extended. We have said, in no uncertain

terms, that relying on this kind of evidence is “a very

serious error. The fact that a child has grown accustomed

to her new home is never a valid concern under the grave

risk exception, as ‘it is the abduction that causes the

pangs of subsequent return.’” Cuellar, 596 F.3d at 511

(first emphasis added) (quoting Friedrich v. Friedrich

(Friedrich II), 78 F.3d 1060, 1068 (6th Cir. 1996)). We have

reminded district courts that the grave risk exception

53a

Appendix A

“is not license for a court in the abducted-to country

to speculate on where the child would be happiest,” but

rather, “[o]nce the child is born, the remote parent must

accept the country where the child is habitually resident

and its legal system as given.” Id. 509, 510 (quotation

marks and citations omitted).

The real problem is that the district court began its

grave risk analysis from the wrong premise. The court

failed to follow our holdings on the proper scope of the

grave risk inquiry—indeed, it showed no awareness of the

limited inquiry we require—and instead asked a different

question: What might happen to the children if Nisbet

were given permanent custody? The district court was

quite explicit in this. It announced that in assessing the

grave risk it would consider “the probable consequences

if [Nisbet] is released in the future.” D. Ct. Order at 16;

see id. at 25 (stating that “[a] return to Scotland would

either leave the children unsupervised or under the

supervision of their father”). There is nothing in the record

that remotely suggests that Nisbet will be released any

time soon, that Nisbet will get custody of the children, or

that the Scottish courts are not capable of protecting the

children during custody proceedings. And the district

court knew this. See D. Ct. Order at 24 (“[I]t is unclear

when or if the authorities in England and Jersey will

relax [Nisbet’s] restrictions. And . . . the Government of

Scotland would need to independently permit [Nisbet] to

enter the country even if he were permitted unescorted

leave by other authorities.”). The court’s speculation was

all based on its what-if-Nisbet-gets-full-custody inquiry.10

10. Many of these findings were based on the report of

Bridger’s expert witness, psychologist Landon Poppleton. But Dr.

54a

Appendix A

That speculation is not a substitute for real proof, and the

burden of showing grave risk by clear and convincing

evidence was Bridger’s.

The district court’s concern with Nisbet getting

custody is misplaced for a second reason. In the end, the

district court simply decided the merits for itself: The

district court concluded that it would be unthinkable

that Nisbet could get custody over his children, that the

children are better off with their mother, and that Oregon

is a better place for the children to be raised. Yet, we

have explained that “[t]he function of a court applying

the Convention is not to determine whether a child is

happy where it currently is, but whether one parent is

seeking unilaterally to alter the status quo with regard

to the primary locus of the child’s life.” Mozes, 239 F.3d

at 1079 (footnote omitted); see Gaudin, 415 F.3d at 1035;

Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001); see also

Silverman, 338 F.3d at 901 (“[T]he district court erred in

taking into account the fact that [the children] are settled

in their new environment.”); Nunez-Escudero, 58 F.3d at

377 (“The district court incorrectly factored the possible

separation of the child from his mother in assessing

whether the return of the child to Mexico constitutes a

grave risk . . . .”). For the district court, the grave risk

was not about any physical harm that might come to the

children during custody proceedings in Scotland, but the

possibility that the Scottish courts would reach the wrong

conclusion. To the district court that conclusion posed

Poppleton made the same mistake as the district court—“that

the children would be put at significant risk of harm if returned

to the UK to live under their father’s care.”

55a

Appendix A

an “intolerable situation,” id. at 25, and, accordingly, the

courts of Scotland were not to be trusted with the decision

in the first place. The court treated the grave risk inquiry

as an opportunity to issue a pre-emptive appeal from any

decision the Scottish courts might make.

IV

We have made an egregious error here. There may

be very good reasons for the Scottish courts to question

whether Nisbet is a fit to be primary custodian of his

children. He may or may not be a candidate to exercise

continued custody over his children, including the right to

have some say in where they are raised. If Scottish courts

determine that Bridger is the proper custodial parent, she

may plead for permission to remove the children to the

Oregon, where she has the support of extended family.

But these determinations must be made in the Scottish

courts, not the courts of Oregon. Under any standard—

indeed, beyond any reasonable doubt—the children were

habitually resident in Scotland. The district court’s failure

to grasp that fundamental fact tainted the remainder

of its opinion, which concluded that ACN and KRN are

better off with their mother in Oregon than in Scotland,

and that any other conclusion would pose a grave risk to

their well-being. The district court’s conclusion is wellintentioned, but this was a straightforward inquiry. We

have compounded the district court’s error, making it more

likely that children will be abducted by parents in search

of a friendly forum in the Ninth Circuit.

I protest. Respectfully.

56a

Appendix

B ORDER DENYING

APPENDIX B — OPINION

AND

PETITION OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF OREGON,

FILED OCTOBER 24, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Case No. 3:23-cv-00850-IM

ANDREW CHARLES NISBET,

Petitioner,

v.

SPIRIT ROSE BRIDGER,

Respondent.

Filed October 24, 2023

OPINION AND ORDER DENYING THE PETITION

FOR RETURN OF CHILDREN UNDER THE

HAGUE CONVENTION ON THE CIVIL ASPECTS

OF INTERNATIONAL CHILD ABDUCTION

IMMERGUT, District Judge.

This matter arises out of an international dispute

over two children, five-year-old ACN and three-yearold KRN. In June 2022, the children and their mother,

Respondent Spirit Rose Bridger, left Scotland for the

United States, and have lived in Oregon ever since. The

children’s father, Petitioner Andrew Nisbet, argues that

Respondent took their children in violation of the Hague

57a

Appendix B

Convention on the Civil Aspects of International Child

Abduction (“Convention”). The Convention mandates that

a child wrongfully removed from her country of “habitual

residence” must be returned to that country unless a

return poses a grave risk of harm to the child or otherwise

places the child in an intolerable situation. Invoking the

Convention, Petitioner has filed a petition requesting that

the children be returned to Scotland. Petition for Return,

ECF 1.

This Court held a three-day expedited court trial in

this matter beginning on October 16, 2023. ECF 39. Based

on the evidence presented through witnesses and exhibits,

and considering the arguments presented in the pleadings

and written closing arguments, this Court DENIES the

Petition for Return.

The evidence compels two conclusions. First,

Petitioner has failed to prove by a preponderance of

the evidence that the children’s habitual residence was

Scotland. The evidence shows that the children did not

have a settled permanent home in Scotland before arriving

in the United States. They were unsettled largely because

Petitioner killed his mother in August 2019 and then was

detained and committed to a secure psychiatric facility

in England. Indeed, one of the children was not yet born

at the time of those events. Second, even assuming the

children’s habitual residence was Scotland before they

moved to Oregon, the Convention does not require a

return of the children because Respondent has shown by

clear and convincing evidence that a return to Scotland

would present a grave risk of harm or otherwise place the

children in an intolerable situation. The children have no

familial support network there. Their father, Petitioner,

58a

Appendix B

remains indefinitely committed to a secure in-patient

psychiatric health facility. And Petitioner has a history of

violent and coercive behaviors that constitute major risk

factors for domestic abuse.

PROCEDURAL BACKGROUND

On June 12, 2023, Petitioner f iled his Hag ue

Convention petition requesting that his children be

returned to Scotland, which he asserts is their habitual

residence. Petition for Return, ECF 1. The Petition was

served on August 9, 2023. ECF 9. Respondent entered

appearance on August 23, 2023. ECF 8. Six days later,

Respondent filed her response, ECF 10, and on September

5, she requested that an expedited trial be held the next

week, citing the Hague Convention’s aspiration for every

petition to be resolved within six weeks, ECF 11 at 1–2.

See Chafin v. Chafin, 568 U.S. 165, 179–80, 133 S. Ct. 1017,

185 L. Ed. 2d 1 (2013) (urging district courts to expedite

Convention cases); Holder v. Holder, 392 F.3d 1009, 1023

(9th Cir. 2004) (same). On September 13, 2023, this Court

held a telephonic status conference to set an expedited

case management schedule and a two-and-a-half-day trial

for October 16–18, 2023. ECF 13. Both Parties agreed

to this schedule, which was proposed by Petitioner in

writing. This Court presided over a trial on those dates.1

ECF 35, 38, 39.

1. During trial, this Court at times permitted Petitioner to

interject, to confer with his attorney over the courtroom’s videocall

system, and to ask witnesses questions because Petitioner is

abroad in a secure facility and seemingly had greater access to

documents.

59a

Appendix B

FINDINGS OF FACT

This Court makes the findings of fact below based

on the exhibits submitted and the testimony presented

at trial. Both Parties agreed to substantially relax the

rules of evidence, and this Court accepted all exhibits

that were submitted or read into evidence. See Farr v.

Kendrick, No. CV-19-08127-PCT-DWL, 2019 U.S. Dist.

LEXIS 104011, 2019 WL 2568843, at *2 (D. Ariz. June 21,

2019) (“Rule 1101(d)(3) of the Federal Rules of Evidence

provides that the Rules of Evidence ‘do not apply’ to

‘miscellaneous proceedings such as . . . extradition and

rendition,’ and [a Hague Convention] proceeding is—in

the Court’s view—similar to an extradition proceeding.”),

aff’d, 824 F. App’x 480 (9th Cir. 2020). Like the Farr Court,

this Court concluded that the most expeditious procedure,

particularly given Petitioner’s confinement abroad, would

be “to apply a relaxed admissibility standard during the

hearing and then discount the evidentiary value of any

dubious evidence during the fact-finding process.” Id.2

A. Events Preceding Petitioner Killing His Mother

1.

Beginning of Petitioner and Respondent’s

Relationship

Petitioner and Respondent met in 2012 through a video

game that they both played. Ex. 108A ¶ 4.3; Ex 108B at

2. Because of the expedited nature of this case, this

Court’s opinion cites exhibits but not a trial transcript because

an official transcript would not have been available within an

expeditious timeline. Even so, the findings here reflect this Court’s

consideration of all evidence including exhibits and trial testimony

and this Court’s credibility determinations.

60a

Appendix B

11, ¶ 37. They first met in person in New York City, and

after Petitioner completed his medical studies in 2013,

they traveled together to New Zealand. Ex. 108A ¶ 4.3;

Ex. 108B at 11, ¶ 37. Following the trip to New Zealand,

Petitioner and Respondent moved to Edinburgh, Scotland

in 2015.

Respondent Bridger presented testimony, which

this Court found credible, about her relationship with

Petitioner. Respondent testified that as the relationship

developed, Petitioner exerted increasing control over

Respondent. Respondent had no say in where they would

live. Petitioner strictly budgeted Respondent’s spending,

and Respondent needed to seek approval if she sought to

make purchases above ten British pounds. He refused to

let her buy clothes above a certain size. He would give her

extra money if she performed “sexual chores,” such as

using certain sex toys on herself that she would not have

used otherwise. He wanted her to get multiple plastic

surgeries, which she did not want. Petitioner expected

that Respondent be there to greet him when he got home

every day; he would not accept any excuse, even that she

was out to buy groceries. Respondent wished to finish

her college degree, but Petitioner would not support this

unless it was a degree he approved. Because she was afraid

of the consequences of noncompliance, Respondent rarely

disobeyed Petitioner’s directions.

2.

Moving to Jersey and the Deterioration of

Petitioner’s Mental State

In the Spring of 2017, Respondent became pregnant

with their son, ACN, in Scotland. Ex. 108A ¶ 4.8. Around

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this time, Petitioner’s lifelong attachment to his parents’

home on the Island of Jersey, a small country outside the

U.K., grew into an obsession. Id. ¶¶ 4.8, 5.3.5–5.3.6.

In the Summer of 2017, Petitioner’s parents informed

him that they wished to sell their home in Jersey. Id.

¶ 4.9. Petitioner did not take this news well. He offered

to put money into the property so that he, Respondent,

their coming son, and his parents could live together as a

family. Id. His parents refused.

This refusal led to Petitioner’s first suicide attempt.

In November 2017, when Petitioner and Respondent still

resided in Scotland, Petitioner tried to commit suicide

by injecting air into his veins to cause an embolism. Ex.

108B at 13, ¶ 43; Ex. 108A ¶ 5.4.1. This attempt failed.

The same month, following the suicide attempt, Petitioner

and Respondent arrived unannounced at his parents’

home in Jersey, intending to move in. 108A ¶¶ 5.3.8,

5.4.2. Petitioner’s parents reluctantly allowed Petitioner

and Respondent to stay in the annex to the house, id.;

Ex. 108B at 64, ¶ 106—a small one bedroom apartment

with a kitchenette. After a couple of months, Petitioner’s

parents asked Petitioner and Respondent to leave. Ex.

108A ¶¶ 5.3.8, 5.4.2.

In response, Petitioner again attempted suicide. In

January 2018, at his parents’ home in Jersey, Petitioner

threw himself out of a window twenty feet above the

ground. Ex. 108B at 13–14, ¶¶ 43–44; id. at 52, ¶ 33; Ex.

108A ¶¶ 5.3.8, 5.4.3. Petitioner severely fractured his

feet and his spine. He was bedridden for nine-and-a-half

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months. Ex. 108B at 14, ¶ 45. Petitioner has reported at

times that he felt no choice but to jump. Ex. 108A ¶ 5.4.4;

Ex. 108B at 13–14, ¶ 44. On other occasions, he has said

that his suicide attempts were not serious attempts and

were a method to have people follow his demands. 3 Ex.

114 ¶ 9.7; see also Ex. 108B at 71, ¶ 150.

At the time of the second suicide attempt, Respondent

was eight months pregnant, and her caesarean section

had been scheduled to occur in two weeks. Respondent

gave birth to ACN on February 1, 2018 in Jersey. See

Ex. 2d. Petitioner was not present. For the first eight

months of ACN’s life, Respondent cared for ACN with

little involvement from Petitioner due to his injuries.

And because Petitioner was bedridden and refused to put

Respondent on car insurance, Respondent could not drive,

further hampering her ability to take care of herself and

her child.

Respondent moved back to Scotland with ACN—

without Petitioner—in August 2018. Six months later, she

returned to Jersey, to the home of Petitioner’s parents,

3. Petitioner contests the relevance and reliability of Ex.

114, a Domestic Homicide Review conducted by an independent

investigator appointed by the Jersey Government. Petitioner’s

protests are unpersuasive. The document’s sources are Jersey

Government agencies, Ex. 114 ¶¶ 4.7-4.8, and the investigation

was conducted according to guidelines established by the United

Kingdom Home Office, id. at 5. The Review’s purpose was to

understand the circumstances leading to the death of Petitioner’s

mother. This Court thus views the Review’s fact-finding as reliable,

though this Court does not rely on its conclusions or opinions.

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after Petitioner assured her that the family issues had

been resolved.

From February to August 2019 the situation in Jersey

deteriorated further. During these months, the police and

psychiatric services were called on multiple occasions

to the home in Jersey. Petitioner’s parents continually

refused to accept Petitioner and Respondent’s family

there. In response, Petitioner would become extremely

upset, frustrated, and angry and would express those

feelings through acts of violence. Ex. 108A ¶ 5.2.5. It is

unrefuted that Petitioner would often smash his head into

a wall or banister, sometimes several times a day. See,

e.g., id. He broke a plastic table by smashing it with his

hands. Id. Petitioner would throw furniture around. Ex.

114 ¶¶ 10.6–10.14. Various responders noted Petitioner’s

suicide threats, explosive behavior, refusals of treatment,

and unceasing belief that his parents, not he, needed to

change their stance concerning the house in Jersey.4 Id.

¶¶ 9.17–9.21; Ex. 108B at 25–30, ¶ 88. Petitioner’s father

told responders that Petitioner consistently tried to

manipulate him. Ex. 108B at 20, ¶ 67. Petitioner’s brother

described Petitioner as controlling in his relationships,

id. at 22, ¶ 77, and he denied Petitioner any contact with

the brother’s children, Ex. 108A ¶ 5.2.6. Petitioner pulled

his mother’s hair and would harass his parents for hours

at a time. See, e.g., Ex. 114 ¶ 9.17. Petitioner sometimes

4. A psychiatric report from May 5, 2020, commissioned by

the Attorney General of Jersey, corroborates these reports with

considerable first-hand quotes from various sources, particularly

medical reporters, who interacted with Petitioner in the events

leading up to the killing. See Ex. 108B at 50-72, ¶¶ 25-159.

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cornered his father and Respondent. Petitioner would

demand to know everything occurring in Respondent’s

life and would instruct her to seek his permission to do

anything. In that vein, Petitioner told Respondent not to

inform anyone else in her life about the situation in Jersey.

He told her to get rid of her daily journals because they

cast him in a bad light.

During this period, in the Summer of 2019, Respondent

became pregnant with her second child, KRN.5 Respondent

packed her bags to prepare for a move back to Oregon

with ACN and discussed a potential move with Petitioner

several times. See, e.g., Ex. 108B at 57, ¶ 66 (Petitioner

writing in March 2019 that Respondent might leave for the

United States); id. at 58, ¶ 76 (same observation in April

2019); id. at 65, ¶ 118 (Petitioner observing in July 2019

that Respondent would likely be deported from Jersey).

Petitioner’s parents issued a notice of eviction to the

Parties on August 2, 2019. Ex. 108A ¶ 9.4. Petitioner

threatened to commit suicide if his parents followed

through with the eviction. Ex. 108B at 71, ¶ 154.

3.

Petitioner Kills His Mother

On August 6, 2019, Petitioner approached his mother

in the kitchen to dissuade her from evicting him and his

family. Respondent and infant ACN were present for the

beginning of the encounter, but they departed the room

5. There is no dispute that Petitioner is KRN’s biological

father.

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because the argument between Petitioner and his mother

grew more rancorous. Ex. 108B at 16–17, ¶ 53. Minutes

later, Petitioner, who had a Leatherman pocketknife in his

pocket, stabbed his mother in the neck. Id. at 17, ¶¶ 54–55;

Ex. 108A ¶¶ 9.5, 9.8. He says he cannot remember the act.

Petitioner was soon arrested. A pregnant Respondent

and eighteen-month-old ACN were taken to a refuge in

Jersey. Petitioner’s family severed all contact with the

Parties and ACN.

B. Events After Petitioner’s Arrest

A fter his arrest, Petitioner pleaded guilty to

manslaughter on the basis of diminished responsibility.

Ex. 102 at 2 (Judgment of Jersey Royal Court). Petitioner

was ordered to serve an indefinite term in a secure

psychiatric facility. Id. at 4, ¶¶ 2–3. The Royal Court

likewise ordered that a medical examiner provide a report

every nine months on Petitioner’s health and progress. Id.

The Royal Court issued a restraining order that, among

other things, bars Petitioner from contacting his father,

brother, or his brother’s family. Id. at 4, ¶ 4(i)-(viii).

After two weeks in the Jersey refuge, Respondent

and ACN moved to a halfway house in Jersey. During

their stays at the refuge and halfway house, Respondent

contemplated moving back to Oregon, but she decided

against doing so because she was pregnant and lacked

health insurance in the United States. See Ex. 118 at

1 (Petitioner writing that Respondent was seriously

considering a move back to the United States in Fall

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2019). In late 2019, Respondent and ACN moved back to

Scotland for her to give birth.

On February 27, 2020, KRN was born. Ex. 2e. At

that time, the COVID-19 pandemic had begun and

borders between countries were closing to contain the

disease. Before Respondent could make an appointment

at the United States Consulate in Edinburgh to apply for

KRN’s Passport and Consular Report of Birth Abroad,

the Consulate closed.

Respondent maintained a civil relationship with

Petitioner. She did so because she knew that she would

need Petitioner’s signature to obtain KRN’s paperwork.

She also needed funds as she was unemployed. See Ex.

124 (email exchange showing that Respondent asked for

needed funds and that Petitioner responded with a budget

he set). And her U.K. visa was expiring.6 See Exs. 20–22.

She had to call him five or six times a day, spending

an hour per call. Petitioner told Respondent to drink

alcohol before their calls so that she would be “happy.”

Petitioner ghostwrote letters to tribunals and medical

care providers as if they had been written by Respondent

and had Respondent send those letters. See Exs. 121–22.

He gave her scripts to follow when calling individuals on

his behalf. See Exs. 112, 123. He forced Respondent to

provide him with a PDF of her signature so that he could

sign letters under her name. If she ever refused to engage

or pushed back, Petitioner would get angry and harass

6. The uncertainty over KRN’s paperwork and the visa meant

that Respondent explored the possibility of permanent residence

in Scotland to stay with her children.

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Respondent. In one instance, after Respondent did not

respond to a call from Petitioner, he repeatedly called

and messaged Respondent, demanding to know where

she was. When she did not respond, he threatened to call

the police to break her door down—with no regard for the

safety of the children. Following this threat, Respondent

complied with Petitioner’s demands and called him back.

Petitioner made similar threats several times, such that

Respondent discretely sought help from a member of her

weekly knitting club.7

The children lived in Petitioner’s apartment in

Scotland. Although they attended nursery in Scotland,

they did not have any friends or family there. Petitioner

communicated with the children over Skype from the

psychiatric facility every day for an hour. Petitioner read

stories and played games with them, but often, after a

short period, the children stopped paying attention to

Petitioner on the screen. Petitioner would get upset and

demand that Respondent direct the children back to the

screen.

After the killing, Petitioner saw ACN four times and

KRN three times. Respondent and ACN first visited

Petitioner in person in November 2019. Respondent visited

Petitioner with both children in June, July, and December

2021. At the December 2021 visit, Petitioner signed

the paperwork Respondent needed to acquire KRN’s

7. This individual, Rayya Ghul, testified at trial and

corroborated Respondent’s testimony. She is a therapist with

decades of experience, and Respondent confided in her for that

reason.

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U.S. passport and Consular Report of Birth Abroad. It

is unrefuted that Respondent told Petitioner that she

intended to move to the United States once KRN had her

passport—a possibility Petitioner acknowledged, see Ex.

110 ¶ 3(c). In 2022, Petitioner appealed to a tribunal for

his release. Respondent expressed great anxiety to Rayya

Ghul over Petitioner’s potential release. The appeal was

ultimately denied.

On June 17, 2022, Respondent departed Scotland for

the United States with ACN and KRN. In the months

before departing Scotland, Respondent sent several boxes

of her and her children’s possessions to her current home

in Portland, Oregon.

C. Events Since the Children’s Arrival in the United

States

The children have resided in Oregon for 15 months

at the time of this Opinion’s issuance. The children are

U.S. citizens; ACN also has a Jersey passport, and KRN

a Scottish passport. The children have Social Security

Numbers. Ex. 106 (ACN letter); Ex. 107 (KRN letter).

They both have health insurance. Ex. 105. They have a

wide network of friends and family including Respondent’s

two brothers, mother, and stepfather, as well as close

friends to Respondent and her family—all of whom

testified. There has been minimal contact between

Respondent and Petitioner since the removal. In Oregon,

the children have never mentioned their father—who has

never lived in the same home as KRN and lived for a total

of a year, on and off, with ACN.

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Appendix B

D. Petitioner’s Indefinite Confinement

Petitioner has been sentenced to an indefinite period

of psychiatric confinement. After the killing, he was first

held at Brockfield House. Ex. 102 at 2; Ex. 127 at 2. In

April 2021, Petitioner was transferred to a facility called

St. Andrew’s. Ex. 127 at 2. There, Petitioner may roam

the grounds unescorted. Id. Petitioner was not discharged

after a request for release was heard in September 2023. 8

Both Brockfield House and St. Andrew’s are in England;

Petitioner has not lived in Scotland since 2017.

At St. Andrew’s, Petitioner has continued to display

behaviors like those he showed in Jersey. On May 18,

2023, a month before filing his Hague Petition, Petitioner

threatened to attack staff when he was moved between

wards. Petitioner has refused treatment recommended

by St. Andrew’s, insisting that he receive therapy from

his personal therapist, Jane Pointon, whom he has seen

since 2017. Petitioner has also decided that mindfulness

methods, not intensive therapy, suffice as treatment. See

Ex. 31 at 2. This is so despite the fact that even Petitioner’s

own expert did not see any document recommending

Petitioner go without therapeutic treatment. Finally, in

confinement, Petitioner has apparently at times barricaded

himself from hospital staff, punched walls, banged his

8. Petitioner provided no documents on the tribunal hearing

despite several requests by Respondent and orders by this Court.

Petitioner insists that this is because of U.K. laws requiring

permission to provide documents. But Petitioner launched this

suit in June—he had an independent obligation to begin seeking

permission in advance of the trial he sought.

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head against a wind

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