Normally, we wouldn't report on what's going on in the American family courts but a case that Tim Scott QC is involved in caught our eye. Chafin v Chafin (No. 11-1347) involves a Scottish mother and an American father. When the relationship broke down in 2007, the mother returned to Scotland with the couple's only child who is now five years old. She eventually returned to the US to attempt a reconciliation in 2010; when this failed, the father hid the mother and child's passports so as to prevent them from leaving.
The mother successfully brought a Hague Convention application before the US District Court on the grounds that hiding the child's passport amounted to an unlawful retention by the father. Within hours of being granted express permission to leave the country, the mother and child travelled to Scotland. The father appealed but his application was refused because it was held to be "moot" i.e. as no relief could be granted, there was therefore no live issue.
The case is now set for a US Supreme Court hearing (on 5 December 2012) as the issue of "mootness" raises questions of American procedural and constitutional law. The question before the court is whether an appeal in a Hague case becomes moot if the child involved has returned to his or her home country.
Tim Scott QC, David Williams and Jacqueline Renton were invited to prepare an amicus curiae brief by the London Metropolitan University's Centre for Family Law and Policy ("CFLP") to help ensure that proper weight would be given to the policy of the Hague Convention and the welfare of the child in the final decision. CFLP's interest in the case related to its general concerns about the effect of continuing litigation on children following their return to their country of habitual residence as well as the effect on children of a possible re-return to the requested state. CFLP's research has highlighted that for some children, the return following an abduction can be just as upsetting as the original abduction; a subsequent re-return can make matters even worse for a child who is already profoundly distressed. As the appeal raised issues implicating the manner in which child abduction cases are dealt with in the UK, CFLP's amicus curiae aims to assist the US Supreme Court as to how such cases are managed in the UK.
The authors have concluded that a reversal of the District Court's order would not give rise to any order capable of meaningfully impacting upon any Scottish proceedings; even if the US Supreme Court were to consider that the District Court had erred in finding that the child was habitually resident in Scotland when the mother filed her Hague application, this would be, they say, irrelevant to any current or future Scottish proceedings because the Scottish courts' consideration would have to be the child's current habitual residence and not her historic habitual residence. The issues presented by the father would thus be no longer live issues between the parties and no effectual relief could be granted to him on a reversal of the District Court's original return order.
The amicus curiae brief also considers the need for swift and conclusive decisions; delay in legal proceedings is inherently damaging to a child's welfare Finding that a child’s return home does not moot a respondent’s appeal would encourage exactly the kind of competing court proceedings that the Hague Convention was aimed at preventing.
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