On February 19, 2013, the US Supreme Court issued a decision in Chafin v. Chafin, addressing whether the execution of a return order under the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and the International Child Abduction Remedies Act (ICARA), which implements the Convention in the US, rendered an appeal of the return order moot.

The petitioner, Jeffrey Lee Chafin, a US citizen, and the respondent, Lynne Hales Chafin, a UK citizen, married in 2006. In 2007, they had a daughter, E.C. In early 2010, Mr. Chafin filed for divorce and for child custody in Alabama state court. Ms. Chafin was later arrested for domestic violence and deported to the UK. E.C. remained with Mr. Chafin in Alabama.

In May 2011, Ms. Chafin commenced an action in the US District Court for the Northern District of Alabama under the Convention and ICARA. After a bench trial, the district court ruled in Ms. Chafin's favor, concluding that Scotland was E.C.'s country of habitual residence. Mr. Chafin immediately moved for a stay pending appeal. His request was denied, and Ms. Chafin left the US with E.C. within hours of the denial. By December 2011, Ms. Chafin commenced custody proceedings in Scotland. The Scottish court awarded her interim custody and a preliminary injunction prohibiting Mr. Chafin from removing E.C. from Scotland.

Mr. Chafin appealed the district court order to the US Court of Appeals for the Eleventh Circuit. The Eleventh Circuit dismissed Mr. Chafin's appeal as moot in February 2012, holding that once the child had been returned to the foreign country, the court "became powerless" to grant relief. It remanded the case to the district court to dismiss the suit as moot and vacate its order. The district court dismissed the suit and ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney's fees and travel expenses.

The Alabama state court dismissed Mr. Chafin's child custody action for lack of jurisdiction. The Alabama Court of Civil Appeals affirmed, relying in part on the Northern District of Alabama's finding that the child's habitual residence was not Alabama but Scotland.

The Supreme Court vacated the Eleventh Circuit's judgment, holding that the Chafins' dispute was still alive.

The Supreme Court distinguished between mootness and the merits of the appeal. Even if Ms. Chafin were correct that the district court lacked authority to issue a "re-return order" directing her to bring E.C. back to the US, Mr. Chafin's arguments about habitual residence and defenses to return were not so implausible that they would fail to preserve jurisdiction. The same was true of Mr. Chafin's arguments for reversing the order directing him to pay Ms. Chafin $94,000. Even if he had failed to preserve that issue for appeal, that affected the merits rather than jurisdiction.

Nor did the appeal become moot because any resulting re-return order might ultimately be unenforceable. Even if Scotland refused to enforce a US court return order, the US courts continued to have personal jurisdiction over Ms. Chafin and could command her to take action outside the US. The US courts could back up their commands with sanctions. Uncertainty regarding enforcement would not render the case moot. The Supreme Court compared the situation to one in which a defendant to a damages claim became insolvent. The fact that a defendant might not be able to pay a money judgment did not moot the plaintiff's claim.

Finally, the Supreme Court addressed the need to resolve cases under the Convention expeditiously. Because there is a strong interest in returning children to their countries of habitual residence promptly, courts should not automatically grant stays of actions under ICARA and the Convention. But if the execution of return orders rendered appeals moot, courts would be more likely to issue stays automatically to avoid mootness. This result would undermine the Convention, which requires swift return.

Attorneys should not abandon an appeal as moot because the practical implications of a decision are not assured due to changes in the parties' circumstances. A concrete interest may still exist despite doubts about the merits or difficulties in enforcing a judgment.