Update (12/5/12): the case was argued in the Supreme Court today. There is some coverage at the Daily Record, and SCOTUSBlog has an argument preview.

Charles T. Kotuby Jr. is U.S. Co-Editor for ConflictofLaws.net and Senior Associate in the Global Disputes Practice at Jones Day in Washington D.C.

The Supreme Court on Monday added one new case to its docket for the upcoming Term. Chafin v. Chafin (No. 11-1347) concerns whether an appeal in a Hague Abduction Convention case becomes moot if the child involved has returned to his or her country of habitual residence (as designated by the District Court). As reported at ConflictofLaws and SCOTUSBlog, this is a very rare mid-Summer order before the first formal Conference on the new Term on September 24.  The order is linked here, and the Petitioner’s Brief is available here.

Chafin involves a U.S. Army sergeant and a Scottish woman he had married while stationed in Germany. The couple later moved to Alabama, and after their divorce, disputed the care of their daughter, who is now five years old. After obtaining a federal court order under the Hague Convention declaring that Scotland was the girl’s country of habitual residence, Mrs. Chafin returned to Scotland with the child. Sgt. Chafin appealed that decision to the Eleventh Circuit, but that court dismissed the case as moot because the child had already returned to Scotland, and was outside the court’s jurisdiction.

The federal appeals courts are split on the mootness issue under the Hague Convention, which led the Supreme Court to grant the case.  The Sixth and Eleventh Circuits have held that removal moots a pending appeal because all further remedies must thereafter lie in foreign courts. An even more recent case from the Fifth Circuit—decided just last week—disagreed, holding that such a conclusion “is inconsistent with the grain of circuit authority. Indeed, the Third and Fourth Circuits [ellipsis] have explicitly rejected [that]  approach.”  Cases from the Tenth, Eighth and First Circuits have also agreed, leaving the Sixth and Eleventh Circuits in the clear minority view. 

If a child’s location could govern mootness, the majority of courts have noted, would that not give parents an undue incentive to flee from Hague Convention proceedings after winning the first round at the District Court?  While Convention proceedings should understandably be expedited, should they be insulated from appeal?  And, is the court’s jurisdiction truly limited by the water’s edge?  Indeed, if the case were to be reversed on appeal, couldn’t that decision or the one on remand be enforced abroad, on the merits or through contempt sanctions against the recalcitrant party?  This last question illustrates how the upcoming Chafin decision by the Supreme Court could reverberate well beyond Hague Convention proceedings to all sorts of judicial orders seeking to affect conduct abroad.