Tuesday, 11 June 2019

US Supreme Court to consider habitual residence under the 1980 Hague Convention

The US Supreme Court has decided overnight (Australian time) to review a case in which habitual residence under the 1980 Hague Convention is the key issue. While Australian courts have decided issues about what constitutes habitual residence, whatever the US Supreme Court decides will be listened to around the globe.

The 1980 Hague Convention on Civil Aspects of International Child Abduction is the prime means to ensure abducted kids are brought back home- wherever home is. Home is described as where the child is habitually resident. Australia is a signatory to the Convention.

The case, Taglieri v Monasky involved a court order for the return of a child who was 2 months when taken from Italy by her mother to the US to be returned to Italy. The mother, Michelle Monasky, alleged that she was assaulted during and after the pregnancy by her husband, Domenico Taglieri.

Monasky asked the Supreme Court to take up two questions in her case, arguing that the courts of appeals are divided on both. First, she asked the justices to weigh in on the correct standard of review for the district court’s ruling on the baby’s habitual residence: Should the court of appeals have decided the issue as if it were hearing the case for the first time, regardless of what the district court concluded – a standard known as “de novo”? Should it instead have used a deferential version of de novo review? Or should it have been even more deferential and overturned the district court’s decision only if the decision was clearly wrong?

Monasky also asked the justices to weigh in on whether, when an infant is too young to acclimate to her surroundings, the child’s “habitual residence” must be established by an agreement between her parents.

The earlier appeal decision

In the words of Circuit Judge Sutton in the court of appeal:

Domenico Taglieri and Michelle Monasky were married. When the union fell apart, Monasky took A.M.T., their two-month-old daughter, from Italy to the United States. Taglieri filed a petition under the Hague Convention to return A.M.T. to Italy. The district court granted the petition after finding that Italy was A.M.T.'s country of habitual residence. Monasky appealed.

Who wins turns on who decides. The Hague Convention places the child's habitual residence front and center in trying to achieve its goal of discouraging spouses from abducting the children of a once-united marriage. The Convention and our cases establish that the inquiry is one of fact. Judge Oliver held a four-day hearing about the point, after which he wrote a 30-page opinion that carefully and thoughtfully explained why Italy was A.M.T.'s habitual residence. No part of that decision goes awry legally, and no part of his habitual-residence finding sinks to clear error. We affirm....


Ninety-nine countries, including the United States and Italy, have signed the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, ...The treaty addresses a pressing and never-ceasing policy problem—the abductions of children by one half of an unhappy couple. The Convention's mission is basic: to return children "to the State of their habitual residence," to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child. ...

 A parent may petition a (US) federal or state court to return abducted children to their country of habitual residence.  The federal or state court determines whether to return the child.  Courts in the country of habitual residence then determine the "merits of any underlying child custody claims."  The parent seeking return of a child must prove by a preponderance of evidence that the child was "wrongfully removed... within the meaning of the Convention." The Hague Convention defines wrongful removal as taking a child in violation of custodial rights "under the law of the State in which the child was habitually resident immediately before the removal."
The key inquiry in many Hague Convention cases, and the dispositive inquiry here, goes to the country of the child's habitual residence. Habitual residence marks the place where a person customarily lives. ...(US case law) offers two ways to identify a child's habitual residence. The primary approach looks to the place in which the child has become "acclimatized."  The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to "shared parental intent."...


As to the first approach, the question is "whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child's perspective." ... District courts ask these sorts of questions in determining a child's acclimatization: whether the child participated in "academic activities," "social engagements," "sports programs and excursions," and whether the child formed "meaningful connections with the [country's] people and places."
But the acclimatization inquiry...may prove difficult, sometimes impossible, for young children. An infant "never forms" "or is incapable of" forming the kinds of "ties" to which the acclimatization standard looks. Id. at 689. Unwilling to leave infants with no habitual residence and thus no protection from the Hague Convention, Ahmed adopted an alternative inquiry for infants incapable of acclimating. In that setting, Ahmed tells courts to determine the "shared parental intent of the parties" and to identify the location where the parents "intended the child[ ] to live." ... (US case law) says that "the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case."
Both of these inquiries come back to the same, all-important point—the habitual residence of the child—on which the protections of the Hague Convention pivot.
The Hague Convention's explanatory report treats a child's habitual residence as "a question of pure fact."

Measured by these insights and these requirements, the district court's ruling should be affirmed. No one thinks that A.M.T. was in a position to acclimate to any one country during her two months in this world. That means this case looks to the parents' shared intent.

In answering that question, we must let district courts do what district courts do best—make factual findings— and steel ourselves to respect what they find. While we review transcripts for a living, they listen to witnesses for a living. While we largely read briefs for a living, they largely assess the credibility of parties and witnesses for a living. Consistent with the comparative advantages of each role, clear-error review is highly deferential review. In the words of the Supreme Court, we leave fact finding to the district court unless we are "left with the definite and firm conviction that a mistake has been committed." ...

Nothing in Judge Oliver's habitual-residence finding leaves a "definite and firm conviction that a mistake" was made or, more pungently, strikes one as wrong with "the force of a five-week-old, unrefrigerated" aquatic animal. He presided over a four-day bench trial and heard live testimony from several witnesses, including most essentially the two parents: Monasky and Taglieri. After listening to the witnesses and weighing their credibility, Judge Oliver issued a 30-page opinion finding that Italy is A.M.T's country of habitual residence. ...

Judge Oliver's opinion is thorough, carefully reasoned, and unmarked by any undue shading of the testimony provided by the competing witnesses. Some evidence, as he pointed out, supported the finding that Monasky and Taglieri intended to raise A.M.T. in Italy. For example: Monasky and Taglieri agreed to move to Italy to pursue career opportunities and live "as a family" before A.M.T.'s birth. . The couple secured full-time jobs in Italy, and Monasky pursued recognition of her academic credentials by Italian officials. Together, Monasky and Taglieri purchased several items necessary for raising A.M.T. in Italy, including a rocking chair, stroller, car seat, and bassinet. . Monasky applied for an Italian driver's license.  And Monasky set up routine checkups for A.M.T. in Italy, registered their family to host an au pair there, and invited an American family member to visit them there in six months.

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