morning good morning chief judge cole judge gibbons judge rogers may please the court i am john one miller of knoxville tennessee and i am a member of the tennessee bar the issue in this case involves the hague convention judge rogers a reserve any time for rebuttal thank you your honor yes two minutes if i may as judge about rogers explained in the ago several years ago the hague convention was implemented  by statute and requires the return of a ducted children to the state that is a nation of habitual residence so that the courts of that state may resolve custody issues the convention however did not define residence and that's been a topic of considerable debate in cases around the country this this circuit actually was the first to address the issue in the friedrich case back in one thousand nine hundred three and it announced the general rule for this circuit which is residence the court must focus on the child not the parents and examine past experience not future intentions the sixth circuit modified that standard in robert in the robert case in two thousand and seven a degree of settled purpose from the child's perspective now there could i claim it does ations standard inquires into whether their children's lives have become firmly rooted in a particular country such that it is their home indeed the goal of the various tests for his betrayal residence used by the circuits is to determine where a child's home is at the time of removal or retention in friedrich the sixth circuit noted that the bitch will residence pertains to the customary residence prior to remove all but a betrayal residence must not be confused with domicile and significant to this case involving very young children it is not predicated on the care or protection provided by either parent the kinds of experiences required to acclimate to a new country were laid out again by counsel were generally familiar with the law what's your contention today the contention today is that in this case in the robert case and the courts this court in and simcox and then also in the roberts case acknowledge that in these cases involving very young or just the developmentally disabled children  you should do yes or you know it yes i think in this case given the friederich standard as modified in robert we need to focus on the child of course but in those cases when there is not do under the ninth circuit moses decision if the district court in effect apply the last year and i don't know your on that it could be your honour's respectfully i do not think it did because it found the last shared intents of the was to live in the united kingdom it found that there was no shared intent after proximately may of two thousand and fourteen though it applied to shared intent test at least in the alternative but just aired according to you  determining when to when that taint or what or what point in time it would refer to well my reading of the district court's opinion is that it looked to the facts and circumstances and focused and its discussion shows focused on the fact that the children the two twins had lived in the u s for six and a half months and in the u k for about two months prior to the wrong there is a finding though isn't there the the district court that there was shared intent to live in the u k in august of two thousand and thirteen and also that there was no shared intent by may of fourteen absolutely so we're just if the relevant period is before thirteen then in effect we have enough to rule one way and if in fact the last shared intent is after or the relevant time to look at is after may of fourteen we would rule the other way in between we don't know what what's your position on what time shared in town the last shared intent when can it be the last shared intent before they got married well in this particular case we know that there was shared intent at least in the fall as you say of thirteen and through that and acts are right right and in this case the pregnancy happened in early tw fourteen within that window where the judge said there had been shared intent and he wasn't certain when the shared in ten ceased when the mother no longer shared that intent so during that pregnancy interest seems odd to say but the best interests of the child are not part of the equation here but more to the point well whether it's a part of the equation or not i mean why would you have a test that that moment in that moment the shared intent stands in this is surrogate for the child's perspective as it were again turning back to the language that the court used in robbery you need to look at the situation from the child's perspective a small child just doesn't have that ability so it's a surrogate for that child's ability and there's no child yet when shared in town occurred in this case it's in ut yeah exactly and in the us actually what's your answer to the case the cases all say that has to be a fact intensive inquiry and in this case the court's findings back intensive inquiry as to what their intent was years before the don't think you have an answer i don't think you have to draw droit line in this case because we have to draw a pretty bright line because we only got a we only when we got a small period of ambiguity here and i would say in this case  saying that it starts at least it when there's conception yes your honor finally well all right so why why where do we get that we just make th have a word find in shared intense that is the time of conception but why should it be at the time of conception rather than at the time of birth well there was no shared intent at the time of birth so in that case an answer that fits at the time of you get a different answer than if it's in this case if it's at the time of birth and if you do if it's at the time of conception so you must be arguing that it's at the time of conception or maybe a month or two into that i don't know what you're arguing i would say indicia of the climate to zation you have an absence of other races and that we would that would warrant looking at the shared intent of the parents at some point in time but that doesn't tell us at what point in time it should become relevant as i say you can go back until it becomes absurd right so why should we go back to conception why not just go back to birth seems like it would make more sense because there's no shared intent at the time of birth that i'm with respect i'm just not that helps you but what if there was shared intent at the time of birth we could say that that's what last shared relates to any time after birth but not all the way back to conception that doesn't answer whether we should do that or not to say that it didn't occur in this case that's just applying that that is true i think that what legal support do you have that when when if we do it up last shared intent it should go back to conception rather than just going back to birth that's question right because it will support i'm asking for it right at least at that moment of time when there is the plan to have a family and not just the plan but they've acted on it there is a basis to tie that shared intent to say it conception i mean people at conception they don't even know they're pregnant sometimes that strew in but in this case we know that there was a clear fine mean i was sure it intent prior to that the problem comes a conception and it's not as it's known or shared intent that goes back you know five years ten years we don't have that scenario and that would be sort of an absurd looking back into the future we're talking about a shared intent that is proximate to the pregnancy and i want to make sure i'm clear on how you are presenting this you say that there was shared intent i guess through the end of two thousand and thirteen and that by february of two thousand and fourteen or so there was no shared intent but about the time she became pregnant no not quite the district court found in fall of thirteen and by five may of fourteen when the mother moved to the us there was no court's findings support without finding i thought you took i thought your position was that there was no shared intent as of let's say february of two thousand and fourteen no i said there's no shared intent at the time of the birth ok and  the district court found that it had evaporated or was gone as of may of two thousand and four direct correct so i my my question really is do we is it your position that we need more fact finding by the district court in terms of when the last year intent was and that would sort of have required the district court to focus on i don't know early two thousand and fourteen to may of two thousand and fourteen and i would note that the district court said it is unclear whether there was shared intent in that period right and then you may ask your question i think this goes back to what judge rogers was pressing me on i think that the sharon intent finding of the district court of fall of thirteen would be sufficient in this case the pregnancy happened as as your before it so before the pregnancy it was it was shortly before the plane became pregnant and around february of two thousand and fourteen so fall it could be four five six months before ok so we don't need any further determination by the district court in terms of last parental share and for the early part of two thousand and fourteen is what you're telling me that there was last chair in town during that period that there was a shared intent prior to that and my memory and i i knew were fourteen right so i thought it was late two thousand and thirteen clear defining was late two thousand and thirteen because you're taking the position that was i'm so you know up here to yes i'm trying to get it europe is what's your factual position your factual position can only be on this court flying clearly erroneous review that there was a shared intent prior to pregnancy right correct your honor involved but so you in order to avoid a remain and for a factual you've got to argue that shared intent has to a met can attach for relevant egg purposes prior to conception but you're not arguing that you're arguing that at conception or maybe after conception it attaches i'm trying to get you know your position is with respect to when it attaches and you say you agree it doesn't go back forever it doesn't go back to those and go back to for how far back does it go a logical thing i'm suggesting but i don't have any basis for it would be birth in which case he would just lose right on if we apply clearly erroneous review to the facts of this case in that case you would not look at your intent at all and that would not help your decision one way or the other you would and there wouldn't be a basis other than challenging your alright alright your time is up i'm trying to get to the point when according to you does the last share last shared intent attach does asking for a legal standard you keep going back to the facts what standard should we apply in looking to the last shared intent any standard well it has to be it has to be proximate to the conception your honor can't go back indefinitely and what that you are saying conception and consent if it's a conception if according to you there's a shared intent at the type of time of conception and that's the operative shared intent yes your honor and my question is at last what support do you have for that and you say well the facts of this case that's not help me i want legal support for the fact that the legal standard is less shared contempt  last shared in town at the time of conception there's no support for that so you're giving me the case some of the cases we've cited in the brief are involved cases in which a which the courts have had to go back to the content intent prior to birth because the the mother laughed and gave birth and changed her intent at some of those i believe that was ok's from the northern district work somewhere i'm sorry that's a district court case some northern district of illinois i believe or familiar with that but that's it them right the that is there some policy which supports the argument or something and the bend yeah i think in the purposes of the of the convention or anything else we should go back that far i well i think there are a number of cases that we have cited that support the proposition that looking at shared intent as i said earlier is a surrogate intend for the to live with the child and there is no child beginning of a child until february of two thousand preaching so reassured intent of where they're going their family home is going to be irrespective of  whether there is going to be a pregnancy or right in it and i would love it all right thank you thank you morning morning but it please the court chief justice cole judge rogers and judge get this i believe that the district court correctly determined that the facts and the circumstances that they that were applied clearly showed that there was no shared intention to live in the united kingdom as father maintained and i think that the roberts case and the panda laris case clearly show that you can't use technical rules here you have to look closely at the facts in the circumstances and look at the child's past experience when we look at the parental intent we have to also look at according to mckee and citing the guitar case that you have to look at the objective factual circumstances and when you do that in this particular case if you see that it was not an error of law for the court to have ruled the way that it did it is interesting to note even in the appellant's brief that what they are basing their belief on is mister expectations and when i read the briefs starting on page twenty over and over they said mr  expected that she would stay for a month and return to give birth in the u k he expected all that all these things to occur which did not occur that has no shared intent any way that you look at his record so there was no shared intent at the time that's c from that your honor because i think that when you look at the differences and for me has to do with the possible shared intent during the pregnancy you're talking about stuff that happened after the pregnancy right right right i don't believe that you can look at this from the time standpoint of someone's pregnancy or that's why i'm sorry please tell us why because you don't have a child who has acclimated you don't have the facts and circumstances that show clearly that there was some intention for the the child to live in a certain place because that the during pregnancy any number of things could happen and you could possibly you could theoretically have a case where there was a i mean human nature is just what it is i mean it is and and i mentioned that i think when the case first began when i indicated to the court you know i don't know of anyone who decides to get married who doesn't think that they're going to be together forever or make plans to be together things change people's attitudes change and in this particular case when you look at mrs ahmed leaving london in the spring of two thousand and fourteen there marital discord she went to the united states it's only mr ahmed who thinks it's different at that point and when you look at it after the child was born in the district court so there was no shared intent right and  happily married perhaps but once the court found the factual matter right and and i looked at the end it doesn't matter and you're saying it's true it's true it's true and he's saying it doesn't matter you seem to be arming past each other to august of two thousand and thirteen and it's on clear up to february of two thousand and fourteen and so he's either arguing that the fact that it was clear before august of thirteen is residents or we need further factual findings with respect to the interim period where as you're addressing your argument to the subsequent period which is not valid and so if you go back and you look at the distinction between what happened when mrs ahmed decided to move to england in two thousand and eleven stayed there until thirteen she took everything with her she took her diplomas she took all of her important personal items the jewelry etc and so she did that because in that time before the children were ever conceived she was hoping to live in england however when she laughed in the spring of two thousand and fourteen she took all those things back with her and never again did she take them in fifteen when she went to visit or any other subsequent time so i think when you when you look at that and you look at the things that even when they when they waited two thousand and fifteen she didn't cancel the medical insurance she continued her professional license she didn't stop her where she didn't suspend her phone she paid her privilege taxes so she clearly was about what period talking about right now in two thousand and fifteen if you want to talk about two thousand and fifteen where the district court has said there was no shared and right i can't speak for my colleagues but they're not even challenging right ok so we're concerned about the pick either the period prior to august of two thirteen or the period from august of two thirteen to may of fourteen in which or in the early in the first of those periods the district court said there was a shared intent no you can check you can say that's clearly erroneous i thought that's where you are you saying that's clearly erroneous no no you're right so there is shared intent up to two thousand and thirteen then from two thousand and thirteen to may of fourteen we don't have any holding by the district court as to whether the shared and that's cry so what if that's the relevant period we would send it back to to have them make a finding right or do you are you about it today and try to get us to make that factual finding well i don't believe that a more factual record additional to actual record is needed i believe that the court looked at that looked at the time that it felt was relevant looked at what it believed that had changed for the parties and i don't believe that there's any support for saying in utero you can make a decision about a bit to residents of the legal basis for applying a shared standard i think it's very difficult for young specifically young children and when i read the district court's opinion i agreed that i agree that there's it's very difficult to do that it's not strictly about the law that would support that when you when you look at i think it was the matthews i'm sorry the maxwell case that we cited as well as then the key in the robert case and i think when you look at those it's very clear that this is exceedingly fact dependent well i don't question that i just mean what do you have to say about the authorities to which your adversary looks decide that it's the appropriate standard i don't think any of the that he cited in any way suggest that a pre birth determination controls certainly when he looked at the one case he cited where mom went to a different country just to have the baby and then to return there was a clear shared intent before the child was born to do that for her to just go to avoid the cost of the medical care that we don't have that case here this is a case where mom picked up and left because she was unhappy in the relationship it wasn't working and when you look at the take your point you're saying if shared intent is ever the standard it's only after the child is born yes except when when there's a clear agreement beforehand that for example she goes and stays in a hotel just to have the baby and then goes back so that the child had that citizenship but in this case mom returned to her home with her parents where the children lived and then went to visit and ok you keep want to get the two thousand and fifteen i'm not sure how even someone who was strongly in favor of the shared intent standard say that there was shared intent when the district court found there was i believe that you can't say that the child has a habitual residence before they're born i think that that's a very difficult thing to come by and to say that that well we're always going to do this or this is what we've decided and it does not change for any of us in life you circumstances change your desires change your relationships change let me ask you this when the district court spent a great deal of time talking correctly and then the district court essentially after having all this discussion about shared and really apply the standard of you know a climate is ation and essentially said well you have seven eight weeks and the united kingdom and six or seven months and united states and that's seem to me in essence well because you have four more months of the united states than you did in the united kingdom that's what wins you know carries the day is that a fair statement no i believe that what the district court was looking at was the the nature of that that trip and and the fact that it was a trip that wasn't a desire to change to move there so the district court was looking at sheridan to well i think it looked at examined that first it doesn't the case didn't turn on that ok so i was looking at as well in the you're saying in looked at says should should not be deterred i'm sorry the mitchell residence cannot be determined through the technical rules governing legal precedents instead courts look closely at the facts and circumstances of each case and consider the child's experiences in determining that but it has to focus on what happened in the past not what's going to happen in the future so any future plans that the part parents have are irrelevant to our inquiry so i think the court then went to those particular cases and relied on those and saying look here are the facts and circumstances that i believe apply is there any way we can look at this climate as a standard for your young children development on disabled people i mean when you've got children who are under the age of one is there any way to apply that at all and i think it's very difficult at some level because you don't have the they're not in school they're not you know they have a detached in the community outside of the family at that point they're they're very they're much closer to the people that they're living with then the rest of the community itself so while it's easy in some cases and i think it was even shown i think in the case that judge rogers had in the newman case where we had mexico and the children were in school they were in the community they were doing those things kinds of things that we don't have with a substantially is that the standard that right yes yes and we believe that the the decision of the district court was not clearly erroneous in this case and that there was never  trip that he wanted to rely on subsequently because he believed that she was coming back from bangladesh etc in two thousand and fifteen just wasn't there and i believe we have to apply one standard of the other seems that some of the other circuits will use both they may give priority to that's last year didn't stand it when it's more helpful than you know him right and i think it does go to the facts and circumstances you can't just say this is a you know a red line rule here we're going to do x y and c it's not mechanical that way and i believe that that's why the habitual residence was not defined in the convention itself it was left to a point for the courts to make that determination looking at all of the factors that it has in front of it before making the decision we believe that it does not need to be returned to the district court for any further proceedings and the court properly analyzed it under the law in the sixth circuit and we ask that the court uphold the district court's opinion thank you gar i'd like to return to judge roger's question if i may i argued earlier that shared intent acts as a surrogate in cases where there is not an issue of accommodation cases including circuit court cases around the country talk about the proposition that cannot be a change of habitual residence without a clear abandonment of a prior habitual residence in the case where we're using shared inten as a surrogate for that i would argue your honor that the court could use the same standard to apply to the shared intent the shared intent of the parents controls until there is some clear intention to abandon that shared intent that will i think get us around the problem of whether that should intent the district court found in fall of thirteen continue through the time of conception we know about that but the district court said shared intent in october and it stopped at some point before she got to what i didn't it seems like eric or his specifically rejected the notion of are a panel of the court and not the court on bach is this something that could only is the result you want one that could only be reached by the court i don't think so and i'm going to go over a few seconds the answer to that is no your honor because the robert court and simcox subsequently specifically recognize that there's a slice of cases that may not fit within the climate position standard laid out in friedrich as modified by robert so i think that there's a gap to be having had that caseload specifically rejecting the shared intent stage or right but the footnote for in roberts acknowledges that this well robert ray area roberts couldn't change that law either did we ever hold that the that the share intent standard could not apply to a child under one year old i don't i don't recall that we're not bound thank you