Chafin v. Chafin, No. 11-1347; U.S. Supreme Court; opinion by Roberts, C.J.; concurrence by Ginsburg, J.; decided February 19, 2013. On certiorari to the U.S. Court of Appeals for the Eleventh Circuit.

The Hague Convention on the Civil Aspects of International Child Abduction requires the judicial or administrative authority of a contracting state to order a child returned to her country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the contracting state. The International Child Abduction Remedies Act (ICARA) implements the convention in the United States, granting federal and state courts concurrent jurisdiction over convention actions and directing those courts to decide cases in accordance with the convention. ICARA also requires defendants to pay various expenses incurred by plaintiffs associated with the return of children.

Petitioner Mr. Chafin, a U.S. citizen and member of the military, married respondent Ms. Chafin, a U.K. citizen, in Germany, where they later had a daughter, E.C. When Mr. Chafin was deployed to Afghanistan, Ms. Chafin took E.C. to Scotland. Mr. Chafin was later transferred to Huntsville, Ala., and Ms. Chafin eventually traveled there with E.C. Soon after Ms. Chafin’s arrival, Mr. Chafin filed for divorce and child custody in Alabama. Ms. Chafin was subsequently deported, but E.C. remained in Alabama with Mr. Chafin. Several months later, Ms. Chafin filed a petition under the convention and ICARA, seeking E.C.’s return to Scotland. The district court concluded that E.C.’s country of habitual residence was Scotland and granted the petition for return. Ms. Chafin immediately departed for Scotland with E.C. Ms. Chafin then initiated custody proceedings in Scotland and was granted interim custody and a preliminary injunction prohibiting Mr. Chafin from removing E.C. from Scotland. Mr. Chafin appealed the district court’s order, but the Eleventh Circuit dismissed the appeal as moot, on the ground that once a child has been returned to a foreign country, a U.S. court becomes powerless to grant relief. On remand, the district court ordered Mr. Chafin to reimburse Ms. Chafin for court costs, attorney fees, and travel expenses.

Held: The return of a child to a foreign country pursuant to a convention return order does not render an appeal of that order moot. Pp. 5-14.

(a) Article III restricts the power of federal courts to "cases" and "controversies," and this "requirement subsists through all stages of [the] proceedings," Lewis v. Continental Bank Corp., 494 U.S. 472, 477. No case or controversy exists, and a suit becomes moot, "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome," Already, LLC v. Nike, Inc., 568 U.S. —. But a case "becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party," Knox v. Service Employees, 567 U.S. —. As "long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot," ibid. Pp. 5-6.

(b) Because the Chafins continue to vigorously contest the question of where their daughter will be raised, this dispute is very much alive. This case does not address "a hypothetical state of facts," Lewis, 494 U.S. at 477, and there continues to exist between the parties "that concrete adverseness which sharpens the presentation of issues," Camreta v. Greene, 563 U.S. —. Pp. 6-11.

(1) Mr. Chafin seeks typical appellate relief: reversal of the district court determination that E.C.’s habitual residence was Scotland and, on reversal, an order that E.C. be returned to the United States. The question is whether such relief would be effectual. In arguing that this case is moot because the district court has no authority to issue a re-return order either under the convention or pursuant to its inherent equitable powers, Ms. Chafin confuses mootness with the merits. See, e.g., Powell v. McCormack, 395 U.S. 486, 500. Mr. Chafin’s claim for re-return cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction, and his prospects of success are therefore not pertinent to the mootness inquiry. As to the effectiveness of any relief, even if Scotland were to ignore a re-return order, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin and may command her to take action under threat of sanctions. She could decide to comply with an order against her and return E.C. to the United States. Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but such uncertainty does not typically render cases moot. Pp. 7-10.

(2) Mr. Chafin also seeks, if he prevails, vacatur of the district court’s expense orders. That too is common relief on appeal, and the mootness inquiry comes down to its effectiveness. In contending that this case is moot due to Mr. Chafin’s failure to pursue an appeal of the expense orders, which were entered as separate judgments, Ms. Chafin again confuses mootness with the merits. Because there is authority for the proposition that failure to appeal such judgments separately does not preclude relief, it is for lower courts at later stages of the litigation to decide whether Mr. Chafin is, in fact, entitled to the relief he seeks. That relief would not be "fully satisfactory," but "even the availability of a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot,’" Calderon v. Moore, 518 U.S. 149, 150. Pp. 10-11.

(c) Manipulating constitutional doctrine and holding these cases moot is not necessary to achieve the ends of the convention and ICARA, and may undermine the treaty’s goals and harm the children meant to be protected. If these cases were to become moot on return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. Such routine stays would conflict with the convention’s mandate of prompt return. Courts should instead apply traditional factors in considering whether to stay a return order, see, e.g., Nken v. Holder, 556 U.S. 418, 434, thus ensuring that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests. Finally, at both the district and appellate court level, courts should take steps to decide these cases as expeditiously as possible. Pp. 11-14.

Vacated and remanded.