JURIST Guest Columnist Preston Findlay, a representative for the National Center for Missing and Exploited Children, argues that the Supreme Court should hold that US courts have the power to handle appeals stemming for international child abduction cases…

When the US Supreme Court hears argument in Chafin v. Chafin this week, there will be another opportunity to clarify the power and reach of US courts to provide relief in cases of international child abduction, and to resolve yet another circuit split. For the second time ever, the justices will shine a spotlight on this important human rights issue and an overlooked treaty — the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Drafted in 1980, the Hague Convention provides a legal process to promptly return children who have been wrongfully removed or retained across international borders to their country of habitual residence. Recent statistics from the US Department of State indicate that approximately 400 children are abducted into the country and more than 1,000 children are abducted from the US to other countries each year. To implement the Hague Convention and address this increasingly widespread problem, Congress enacted the International Child Abduction Remedies Act in 1988, granting concurrent jurisdiction to both state and federal courts in the US to hear cases under the treaty.

In the years since, organizations like the National Center for Missing and Exploited Children (NCMEC) have worked diligently with partner law firms to ensure practitioners have access [PDF] to the increasingly nuanced case law that has developed surrounding international abductions. Just three short years ago, the Supreme Court carefully parsed and interpreted the Hague Convention for the first time to define “wrongful removal” — a phrase left intentionally vague in the text of the treaty. The Court’s 2010 ruling in Abbott v. Abbott provided more than just a working definition, with larger implications that expanded the treaty’s protection to cover a wider range of situations and individuals. Abbott also clarified that the US stood in line with foreign legal consensus and the majority of our treaty partners to decide the same issue.

Today, in Chafin, the Supreme Court should again set an example for the international community and ensure that the US court system provides the broadest reasonable application of the Hague Convention. A child’s departure from the US pursuant to a district court “return” order does not moot an appeal from that order and does not leave the US appellate process powerless to effect any relief. For several reasons, NCMEC argues [PDF] that the Court must reverse the US Court of Appeals for the Eleventh Circuit, whose decision was based entirely on the circuit court’s earlier precedent. In the case below, as in Bekier, the Eleventh Circuit held itself powerless to provide any actual affirmative relief and deferred that a litigant parent’s only remaining remedies lie in the country where the child was returned. The US Courts of Appeal for the Third, Fourth and Fifth [PDF] Circuits have already expressly rejected this defeatist reasoning and the Supreme Court should as well.

Under traditional principles, an appeal is not moot unless there is no possible relief to be granted for the appellant. Numerous examples raised by the parties and amici curiae in their briefs on the merits indicate the direct and indirect relief available to an appellant. A reversal of the decision to return a child on appeal can impact payment of costs, strategy, international assistance, and even the underlying child custody pursuit. A case brought under the Hague Convention is not an in rem action that depends on the child’s presence for the exercise of jurisdiction — reducing the child to the status of an object or asset. The text of the treaty itself allows for appellate jurisdiction to continue after an abducted child has been returned and this interpretation is supported by the only foreign court decision to-date on the subject, issued in 2002 by Spain’s high court for constitutional matters.

So, while it seems abundantly clear that the US court system has authority to fully entertain appeals in Hague Convention cases, there are important concerns the Supreme Court must consider to ensure all proceedings remain attentive to the needs of the children involved. It is worth remembering that the Hague Convention was drafted to address the harm caused by international child abduction. Article 11 [PDF] of the treaty suggests that legal proceedings should be concluded within six weeks of filing, and many countries aspire to conclude all levels of appeal during that same short time period. Experts in all relevant disciplines (law, psychology and criminal justice, among others) agree that child abduction can have profoundly harmful effects on child victims. Legal efficiency helps to quickly achieve stability and minimize these inherent negative effects of abduction on the child. The US rarely meets this goal. A recent study [PDF] by the Hague Conference on Private International Law paints a depressing picture of delays around the globe. Even more troubling, in 2008 the US took significantly longer (regardless of outcome) to resolve Hague Convention cases than the global average. Appeals added an average of 232 days before an outcome was reached in the US. This is further illustrated by the facts of the Chafin case itself, in which the original federal court action began more than a year and a half ago.

For all of the heated argument and impassioned advocacy in the present case (not unusual in matters of international child abduction) all parties appear to agree that expedited appeals are important to ensure proper treaty function. Nearly all also agree that, in the future, a more uniform method should be implemented for granting stays pending appeal in Hague Convention cases. This would ensure the child is not moved back-and-forth unnecessarily, and would help protect the balance between US courts’ obligations to emphasize speed and efficiency under the treaty with the ultimate concern for a just outcome. It is my hope that the Supreme Court maintains a similar focus on the children at the center of these important cases.

Preston Findlay is Counsel for the Missing Children Division of the National Center for Missing & Exploited Children. In this role he provides legal technical assistance and training to law enforcement, attorneys, and the public regarding international and domestic child abductions, missing children, and related matters.

Suggested citation: Preston Findlay, Chafin v. Chafin: Defining a Court’s Ability to Hear Appeals on Child Abduction Cases, JURIST – Hotline, December 5, 2012, http://jurist.org/hotline/2012/12/preston-findlay-chafin-abduction.php.