morning morning oral king day this from kentucky legal aid for power and amanda hayes your honour's this case presents a long series of facts which are delineated in great detail in our briefs i hope to not need to go into those in my oral argument i also do not intend to address one basis were appeal which was an abuse of discretion in findings of fact i believe the issue was also addressed in detail in the breeze and most of the court has further  inquiry i would like to address my argument to what i believe are the areas of law which we believe occurred in chew instances first of all we believe that the district court judge in accurately applied the intolerable situation defense as one that was the same as grave risk of harm and or headache in a car we do not believe that this is correct we believe that a holding that these are two separate defenses is consistent with this court's early decision in frederick which is in the late one nine hundred ninety s as well as other cases subsequently which went further to delineate that these are in fact two separate defenses we believe that separately why do you think that will the different result i believe there are two different levels of proof that are required the judge in this case it page four of fourteen i believe of his opinion said that while he considered they were the same defense he was going to discuss them separately i'm not sure what that means i emailed had a personal opinion that the courts were wrong in considering them separately but he never delineates what the basis of his opinion is going to big and i believe that under the language of the convention it's grave risk of harm and that is tied to psychological or physical harm or an intolerable situation you can have arguing the intolerable situation that's correct you're on a winner never we never argue driver asked and that is one of the errors in the lower court's opinion is that it spends nearly a page on us arguing grave risk of harm which we never argued there were no facts of the time of flight that constituted grave risk of harm as a separate defen or intolerable situation because psychological and physical grave risk of harm with some narrow and they could not possibly contemplate all the situations now the laws become somewhat confused because i find it difficult to imagine  otherwise so it's physical or psychological harm or otherwise place a child in an intolerable situation just in the otherwise suggests that the physical and psychological harm points limit the intolerable situation because otherwise anything is arguably intolerable including your husband keeping your child i am getting him back i believe that all situations of physical or psychological harm are going to the intolerable i do not however believe that all intolerable situations are necessarily physical or psychological if that was the case there would have been no reason to include the reason it makes sense to me is if you consider physical and psychological you could have a situation where there's a revolution and there's great instability which itself doesn't create physical or psychological harm but creates a risk of it so that's why you would have that catch all that's accurate your honor however if you look at the cases that occurred two thousand to two thousand  child to be returned to the environment that is far broader than simply physical or psychological an army the best interests of the child because no no you're out of the standard no you're on about i believe there are situations you describe it makes it sound like we just sort of use whatever would be the best interests of which i don't anything else is intolerable i don't believe that that's what the case law says and i don't believe that that's what we argued we argued that it is a high standard it is a clear and convincing evidence stand for but it's not just limited to psychological or physical harm the case is post freidrich state that it is the totality of the circumstances and it can be other instances of a negative impact on the not an intolerable situation that would be considered under the best interest of the child or whatever the local jurisdiction had as its standard for awarding custody at the other end of the spectrum frdric gave the opinion of sexual abuse of the threat of sexual abuse as being one of intolerable risk the problem is sexual abuse would be a grave risk of harm and i think that's why there has been a confusion at least in some opinions as to whether or not you can have an intolerable situation that does not exist where there is no immediate psychological or physical harm however what is also evident in these cases is that intolerable situation involves a threat and arst a threat of a deprivation of a right to be safe or there are other deprivations there can be for instance a deprivation of legal remedies are you making a different argument from what i thought was the thrust of your brief which was based on the fact that they really couldn't get a custody determination in turkey no your honor but what i'm saying that is a main point of why this was an intolerable situation became actually ludicrous at the point that miss hayes fled to turkey the turkish courts had refused jurisdiction over this case facts occurring in july at the last two hearings modify that her flight had already occurred based on the intolerable situation that existed that the turkish courts as we can  the judge that if there had been waivers but this really now going to strip more my abuse of discretion argument but i believe the grounds on which you consider whether those waivers were effective because it's our argument that even of july nineteenth which was the last way reproduce minutes before court start and was their last waiver which was believed to be affected by the lower court there was still issues that place this child in an intolerable situation what was that he was being sent back to turkey absent legal protections which he would otherwise have included a go one which had been incorporated into all of the i mean he was said i'd add is that in turkey they make a custody determination he was sent back to turkey without any access to the turkish courts for instance for domestic violence protection and the incidence of events had been found by send them back is to get a custody determination is where he can only receive a custody determination number one if he is in a live to put it to an extreme to have received that custody determination and number two if the courts she found works out arguing so i mean that's sort of going back to the other argument you want to keep the state courts in order to have a tolerable situation and the whole premise of the hague convention in the car is that the jurisdiction to which it's returned not only has some sort of system for making a custody determination it is not equivalent to the u s system but that also that system is going to be used it's going to be available and in this case it was not available until july second which is when everybody was already back here in fact the court and there was a second wave or i should question or play go in the child still in turkey yes they are everyone is in turkey so i thought i saw somewhere in the record that they were supposed to leave from june or july of this summer oh mr play i go where i'm clear as to miss i'm asking a question about moving us just so you know where i'm coming miss we don't know where mr plea i go is we know the child is still in turkey we had thought and this is my understanding from what i've heard your honour's that his posting had ended we thought he was going to be posted to the ukraine we are not sure where mr plea i go as we know miss hayes is in turkey and we know the child is in turkey in the care of someone there's an ongoing obligation of the parties to let us know if the case facts that might move the case we have they are telling us everything you know one just have to ask the other side as you know it's our understanding that the facts that mr plea i was still in turkey is that is where we expect him to say he's let's just since you don't know let's you've got time let's figure out the answer to this let's say he's left turkey he's been posted to another country what do we do with the case at that point because at that point i don't understand how it's capable of repetition and the and i don't believe where mr plea a go goes is going to change that all right let's act like there is a special child let's say you're wrong about where the child is let's say the child and play it go have gone to his new posting with the case be moved then and that would have been up until whenever he let me left but i think the question is in a different way what if if you if we agree with you on this appeal and we rule for you what happens now the case would be then heard relief that i say that we say well let's say hypothetically we hold that there were intolerable conditions and we give some reason and that's our holding and then we send it back what happens to the general then then that she left then this case lead the country and with the defense and she would bring a case in the united states so she would be the district court would have to order the child back to the united states in that situation i believe if you set aside the other and i understand with your honor asking if you set aside the other opinion i believe that it would make the order of reach harn to turkey moot or reverse that and the child would have to come back or you are two very different things it makes it moot than we just throw out the appeal but it has if there is something that we would be ordering i think that i think the child would have to be ordered to be returned to the united states i don't know how enforceable that would be but that i as a practical matter result in the case of a unstated return order which gets reversed on appeal might be that the child would then be river would be sent back yes and i if that's the case then it's not there's a there's a practical application problem as well yes for don't answer this now but i just want to warn ask you to think about it for rebuttal for rebuttal i have just a question about fees and i don't want to talk about your other fees attorney's fees yes and the question is whether the statute contemplates fees good morning your honour's may it please the court my name is rebecca mccallum the custom yet counsel for the petitioner below the appellee here mr plea i go where is he he is in turkey and he has the care of the child so the statement made by counsel just now that someone has the care for the child let me just correct that on the record to say that he has the care for the child he is still there the case is pending in turkey so the custody case that was anticipated by judge russell in his district court opinion fact happen the temporary custody hearings were had mr plato was given temporary custody miss hayes has set up residence there and she is working there living there has been living there for over a year and his posting has not yet changed to a different place i thought it was supposed to change this summer that's correct and the trial court there and continued the case that trial has been continued if you don't know ok i thought his diplomatic posting was suppose  diplomatic posting was supposed to change this summer what happened it was intended to change what happened was this trial kept getting continued and when the judge was able to say you're not leaving until we figure this out there's an exit ban on the child so the judge isn't telling mr play i go he can't leave  judge is telling all the parties that there's this exit ban which was requested by miss hayes initially if you'll recall working in the embassy now at the moment i don't know the exact status of if he's still in the embassy but he has these working in some other embassy that he no longer has of community in turkey that's correct your honor if that would be you can't tell us where he's working is your client you know that's correct i don't know if his official posting has been changed to a different place or not i know that his responsibility of a thing you might i mean i c see if you didn't want to tell us because it's not in the record something but it seems remarkable that you don't even know where your client is working the reason why i can't say for sure is because even as of just five business days ago the trial court changed the trial date yet again internally what that has to do with where he's working that he's been continuing his posting as long as he can there and he has he's gotten he's gotten permission or something somebody has decided that he can stay there until this was yes but the question not live in the embassy he's always lived in a place outside the embassy even during play go on in play go to and his posting his official status of facts arguably changes the calculus when you're talking about viability they say he's immune from other aspects like whether he gets tried for child abuse and things like that but that would all be gone if he was no longer a credit to the embassy that's true it would be gone i don't know the answer if he doesn't have understanding is that is correct as of this moment he has still has the immunity which is goes to the heart of your question he still has the immunity as to every other issue that hasn't been waived the important things for this case and what was true as of clear go to is that those  have been waived to the child custody case we don't i would think i don't know if we can tell you to do this but it would seem responsible if you find out that he is no longer post to but he's just living there  that would be relevant at least partially to a move this analysis would be something that would be professional of you to inform the court your honor the miss goes to the chief an opinion from supreme court which of the u s supreme court which tells us that even when the parents no longer located in official residence that doesn't moot the issue of whether the child should have been returned and that's true for a couple of reasons because one of the issues that they raise has to do with the extent to which they're immune correct that's correct when we're evaluating that we made throw it out or we may find some way to it that's part of our jurisdiction right because that's an argument they raise right that's correct if that issue is mooted out by the fact that he's no longer an accredited diplomat and  car i don't see why we can't find out why you can't ignore that you're responding to his question by saying don't worry about it see the chafing decision that's not a great answer the corridor a member of the court wants to know the status because they think it's relevant to the inquiry the answer is we'll find out the status by the way it probably won't make a difference given chafe and i don't know how you can do this any other way and thank you yes i think that's well put and i did intend to convey that as well what i intend to convey was that you'll tell us when you find out whether he has diplomatic status in turkey or not so what i'm hearing what i can say today that i know for sure is that his diplomat status is still asking what what you can say for sure now i'm some reason why you continually want to circle back to the situ with the procedural situation in the court and the status of the trial date can you explain that why you why you consider that important to answer to us when we're not asking that question because it goes exactly to the problem proposed by the appellant which is that the custody case can't be litigated in turkey when it in fact can it can and it has been for the past year that we i'm asking is that tied to your answer about the posting in some other it way in your mind some important to the post and i thought that that often came up when you were asked about the posting or  diplomatic status that you would say well the case is getting postponed and it's still pending i think the best way to answer that is to remind the court the child cannot leave turkey and mr play ago does not want to leave turkey without the child so the turkish court has claimed jurisdiction over this child intends to litigate the trial the last i knew the trial was set for december twenty ninth that all makes sense to me i understand just wonder whether we don't have an easier case if he's no longer a diplomat i think he is a diplomat maybe is and that's only reason i'm asking that question was a lot of other issues you may want to address the the waiver is the most important issue going to the immunity and i would submit that that's the key fact that your honour's can hang your hat on to understand the immunity issue the inviolability is that the appellant raises in her brief that's a red herring the vienna convention does not say anything about waiving inviolability or that that's even an option to do the two things that article thirty one of the video vienna convention tells us that can happen is that the spanish state in this case can waive immunity of jurisdiction and immunity of execution that was done prior to the trial court's decision employee i go to so that is the fact that's important for your honour's to know is that without getting too muddled up in whether he has immunity or not or whether he's still a diplomat or not respectfully whatever he has it was waived and certainly the doors open even wider if he's no longer enjoying the privilege of immunity and of course he if at issue before your honor whether to return those or not and we would submit that those can be awarded on appeal that's system with the terms of the convention and a car itself it says that attorney fees at all stages of the game can and it does not say that what exactly that the attorney fees incurred by the left behind parent can shall be the court shall award the fees and  expenses that that parent had to incur a court ordering the return of the child yes the court order order the return of the child this court would not be the court making that decision but it would be affirming that decision which mr play go has been fighting the district court and therefore perhaps undue the fia ward why would it not also have the power to assign fees from this level of everything that mr play a has been fighting for to return the child including this appeal which includes these issues of race judicata and collateral estoppel which takes us all the way back to play a go one and that's why it's part of the record because he has been fighting the same fight all along miss haye as has has repeatedly been saying to the district court and even bringing it up in her brief to this court that these three sets of circumstances all together or individually make for an intolerable situation and it makes sense probably congress should have written what it wrote ever seems to be what they wrote it does and as a court ordering the return and we would not be a corner in the return so how do you get around that you say well that's a bad statute that falls on our deaf ears no i think that it has to be read strictly and so that the reading it strictly even if we affirm it even if we issue a once one word order affirm we would and we would not be a court ordering the return of the child right or wrong this court would be affirming that lower court's order i can't point the court to a case where that has happened but i would submit that the language does support any case that supports you anywhere i don't know of a case or are we just have to sort of read this loosely important and i can understand why that leads to one way of inferring what you can do but why not put the emphasis on necessary expenses the questioner's what are necessary expenses and it's fair to call necessary expenses the filing fee for an appeal if you know someone files an appeal and if it's possible to have those expenses why not attorney's fees and appeal but the test is necessary expenses not any court ordered i would agree with that judge that yes the necessary expenses that he's had to incur normally the way we do it and you're asking us to order the fees right we're asking you to consider that on appeal we submit that that would be only we do that normally we're the ones who order of fees on appeal that keeps the district court out of deciding whether to pay for somebody to appeal their decision and this seems to say that if you buy a judge judge sudden suggestion that the district court should be doing it the just just to hear the question i don't understand what's so bad for you if the rule is the district court is the one that calculates the fees and enters the order about them and they include fees on appeal if they why do you care about the remained you're still getting fees for all of this and so i just don't understand why that's so bad the only thing that's so bad is it's clear from the record how many fees mr plea ago has already spent in the case in the course of this case and over the course of the last two and a half years since the first abduction if there is no further than that your for going any fees to the extent that they have to be awarded that any fees for the court of appeals to the extent they have to be awarded by the district  your honor it if the court finds it necessary to remain for that purpose mr plato has no problem with that mr plato's concern here is just getting an affirmative of the lower court's opinion he's left much less worried about the fees on this appeal he would like to be able to proceed with the turkish case i think it is that if you get a firm and have nothing to worry about you don't you get your firm and they're not challenging the trial level field or you get your fees there it's up to play go if he wants to go back to district court to collect the fees incurred on appeal he can let's hope he doesn't because that would be a third time in front of judge russell with the same this is be the one thing both parties agree about i'm pretty confident hayes hopes he does not want to collect fees on appeal so if you agree on that i'm pretty confident this case will agree on that i think we can agree on that the important thing we're wanting to emphasise to your honor's is not the fees because we can agree that that's really the lower on the totem pole for the issues and if we affirm them whatever possible undoing of the order is there won't happen that's got to be the reason that you want to fermat's here we don't  no no absolutely you don't think it's moot presumably because if we rule against two the district court will be in a position where the district has to do something that you don't want to do like order the child back to the united states well if i could just sum up since i have my time the the decision to return the child to turkey was perfectly within with convention in a car anticipated not only was she not able to meet the burden of proof of the affirmative defense the one affirmative defense that she claimed and what she's are going to appeal but in every other respect either points were conceded or they weren't argued so there's a lot of proof here why the district court would probably find him in mr player goes favor there's not a concern of going back to the district court on this issue of fees the the main point is that going back doesn't expedite the case like we're told by the convention to do and we are trying to keep these parties out of court for one thing there in court in the united states there in court in turkey and i would just submit that we would ask your honour's to to affirm the judgment of the district  it's a hypothetical which you would object to arriving all right which is that we reverse let's just say that we accept the idea that the district court was wrong in saying that there was no intolerable whatever the standard was because situation all right maybe i had too many negatives in the hypothetical but assume that you lose on appeal just assume ok what would the what would two think the district would properly or arguably properly do in response to that reversal nothing because it's there's nothing to do or would the court take steps to undo what it did be that when she took him from turkey back to the united states he improperly ordered the child back to turkey is a bitch will resume if we rule for against you on this appeal that would at least a possible result is that he erred right i'm asking you assume that i know you disagree vehemently right but i'm just trying to figure out what the stakes are here ok the stakes for you losing on appeal if the stakes are nil because he's going to stay in turkey regardless of whether you win or lose on this appeal then i start to get the feeling moot right but if the stakes if there is something that the district court might do in order to fix its not here he'd have to get here we'd have to get here and he's our ordering back here or to the parties to send him back here because it made a mistake sending him back to turkey yes but the court with your stiction which is the turkish court has ordered the exit ban so the child can't leave the country of turkey which is why she was there's no way that the district court can legally order him back then i don't see what the point is of your seeking in the firms if the court could enter an order and maybe that order might or may not be complied with that would be different right he could order i guess the mother or the father or whoever to send it back to kentucky to order the father to send it back to kentucky yes or not are there cases where they trust where they undo a reversed making a motion just regular motion practice in that courtroom in the turkish court yes yes your honor yes that would be or it might be comedy to our decision and that is exactly what mr play go has been trying to do for two years and this ha decision until after the summer hearing i know that this court has its own calendar and we would just ask i'm not asking for a decision before or after december because it's very possible the december hearing could get moved again so that you don't mind if we wait for the resolution of that proceeding whether december or later i ask you whether you care it does not matter for the purposes of what this court has been asked to do which is to review the district court's decision so i would say in that respect very much for your time your honors i'd like to first address and i have been considering your question judge sutton but first the question that was asked what could be done in case isn't this just this court reversed the lower court decision the child from leaving turkey right now because judge russell in his orders that the child was prohibited from leaving turkey he cannot leave turkey without the permission of the turkish courts it would be completely feasible for one party or the other  go to the turkish courts and request that the orders now in place be lifted and that the child be able to leave if it was ordered that that in fact is what should happen or by russell order by by russell there is an issue right now in turkey as to whether the turkish court's understanding what this court did they are it seems to us that there's a hurdle that's being battled in turkey as well as a substantive of this lower court's order trying to be entered as a substantive worker so to address the second point that i think was very important we wrote definitely do care about when this core issues and you pinion want us to do it sooner rather than later yes your honor even though even though waiting my confirm you're right assert his immunity is in she got an order that he didn't like run the risk of losing now and in turkey losing now here yes it not being able to use in this case some of the things that happened in this proceeding that's all i'm saying i'm going to make sure you understand the dynamics of the question the thank you honor the turkish court in our understanding with turkish counsel is looking at the substantive interests of the best interests of the child and they are wrestling with issues trying to figure out what what this court is doing but i don't know that a determination one way or the other is going to affect if taken as intended under the hague convention is going to affect one way or other the  wait for us and we have grave concerns about what is going on in turkey for all the reasons that have been set out in our brief we do not believe that the turkish courts are being allowed to view this case the way they should we believe that mr and that's the thrust of your intolerable says that is why we do not want to get the best evidence of it by that everybody see what they do and if they say oh he's got a mutiny we don't have jurisdiction you've just confirmed your argument now if it goes the other way if it hurts you but  doesn't have the turkish court is not going to find they has immunity in terms of custody he's waived that we agree that he is why his immunity for the purpose of custody and the purpose of execution under turkish law and the turkish courts of execution normally execution goes to monitoring what the turkish court is doing a lot our concern is not with what the turkish court is doing our concern is with first of all the fact that they can't happen happening in the us because we believe said in our brief that there was unduly influenced x x or that on the turkish courts we believe that it's continuing we now have the spanish embassy in the u s embassy involved in going to proceed we review the decision pardon me for interrupting we review the decision of before him we were concerned about the pattern and practice of behavior up until july nineteenth when the child was ordered back and we have no reason to believe that that pattern and practice of behavior is going to change and even if it if they did record that this is not some hypothetical that may never arise the need for some kind of domestic violence protection may never arise that their need to physically remove the child may never arise that's in the record that these are real concerns and that's our concern concerns are what's in the record about those concerns doesn't change by what happens later that's not the well but that's that would be what i was and so we review the decision of the district court based on the facts that are be form unless s and that is why we would like a decision