1 23

- 470 Royal Borough of Kensington and Chelsea v. Tara Bafna

- Louis

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thur good Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 1 8 t h day of O c t o b e r , two thousand twenty

- three

. 3 4 PRESENT: REENA RAGGI , 5 RAYMOND J. LOHIER, JR., 6 SUSAN L. CARNEY, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 ROYAL BOROUGH OF 10 KENSINGTON AND CHELSEA , 11 12 Petitioner

- Appellee , 13 14

v. No. 23

- 470 15 16 TARA BAFNA

- LOUIS, ALSO 17 KNOWN AS TALIA BECKER, 18 TALIA LOUIS, TARA BECKER, 19 TARA MAYNARD, TALIYA 20 BECKER, AND/OR TALIYA LOUIS , 21 222 Respondent

- Appellant

. 1

------------------------------------------------------------------ 2 3 FOR PETITIONER

- APPELLEE : K ELLY A NN P OWERS , Stephen 4 John Cullen , Miles & 5 Stockbridge P.C., Washington, 6 DC 7
FOR RESPONDENT

- APPELLANT : V ALDI L ICUL , Wigdor LLP, 8 New York, NY 9 Appeal from a n order of the United States District Court for the Southern 10

District of New York (P. Kevin Castel, Judge ). 11
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 12

AND DECREED that the order of the District Court is AFFIRMED

. 13
Respondent

- Appellant Tara Bafna

- Louis appeals from a n order of the 14

United States District Court for the Southern District of New York ( Castel , J

. ) 15
requiring the return of her child , Baby L , to the United Kingdom pursuant to the 16
Hague Convention on the Civil Aspects of International Child Abduction, Oct. 17
25, 1980 T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 18
(Mar. 26, 1986) ( “ Hague Convention ” or “Convention” ) and its implementing 19

statute, the International Child Abduction Remedies Act , 22 U.S.C. § 9001 20
(“ICARA”). We assume the parties’ familiarity with the underlying facts and the 213 record of prior proceedings, to which we refer only as necessary to explain our 1

decision to affirm

. 2
The Convention seeks “to secure the prompt return of children wrongfully 3
removed to or retained in any Contracting State,” and “to ensure that rights of 4
custody and of access under the law of one Contracting State are effectively 5
respected in the other Con tracting States.” Abbott v. Abbott , 560 U.S. 1, 8 (2010) 6
(quoting Hague Convention, Art. 1)

. “The United States is a Contracting State to 7
the [C]onvention

. ” Hofmann v. Sender , 716 F.3d 282, 290 (2d Cir. 2013). “[T]o 8
prevail on a claim under the [] Conv ention a petitioner must show that (1) the 9
child was habitually resident in one State and has been removed to or retained in 10
a different State; (2) the removal or retention was in breach of the petitione r’ s 11
custody rights under the law of the State of habi tual residence; and (3) the 12
petitioner was exercising those rights at the time of the removal or retention.” 13

Gitter v. Gitter , 396 F.3d 124, 130

– 31 (2d Cir. 2005). A respondent who opposes a 14
child’s return may establish certain defenses under Article 13 of the Convention. 15

See Souratgar v. Lee , 720 F.3d 96, 103 (2d Cir. 2013). In cases arising under the 16
Convention and ICARA, w e review a district cour t’ s factual find ings for clear 17
error and its legal conclusions de novo

. Ozaltin v. Ozaltin , 708 F.3d 355, 368 (2d 184 Cir. 2013 ). “ Legal conclusions include interpretations of the Convention and 1
applications of the appropriate legal standards to the fact s.” Id

. 2

I. Habitual Residence 3

Bafna

- Louis first challenges the District Court ’s determination that Baby 4

L’s habitual residence is the United Kingdom

. A child’s habitual residence 5

presents a “mixed question of law and fact

— albeit barely so.” Monasky v. 6
Taglieri , 140 S. Ct. 719 , 730 (2020) (quotation marks omitted)

. “ Once “ the trial 7
court correctly identifies the governing totality

- of

- the

- circumstances standard, 8
however, what remains for t he court to do in applying that standard . . . is to 9
answer a factual question: Was the child at home in the particular country at 10

issue ?” Id. Because the D istrict C ourt here identified the correct legal standard, 11

we review its habitual residence determination “ by a clear

- error review standard 12
deferential to the factfinding court , ” i d. , keeping in mind that “courts must be 13
sensitive to the unique circumstances of the case and informed by common 14

sense , ” i d. a t 727 (quotation marks omitted)

. 15
In general, “[a] child ‘resides’ where she lives. [A child’s] residence in a 16
particular country can be deemed ‘habitual,’ however, only when her residence 17
there is more than transitory.” Id. at 726 (citations omitted). F o r children who 185 are too young to acclimate to their surroundings

— as is the case with Baby L

— 1

the “ intentions and circumstances of caregiving parents are relevant 2

considerations. ” I d. at 727

. “No single fact, however, is dispositive [

. ] ” Id. 3
Here, the District Court considered all of the relevant factors and credited 4

Ba f na

- Louis ’s testimony that she intended to relocate to New York with Baby L

. 5

T he District Court nevertheless found that Baby L was a habitual resident of the 6
United Kingdom

. That finding was supported principally by the following 7

record evidence : (1) Baby L was born in London and was issued a passport by 8

the United Kingdom ; (2) at the time Baby L was born, Ba f na

- Louis “had long 9

maintained a residence in [the United Kingdom ] ;” (3) when Ba f na

- Louis traveled 10
internationally prior to Baby L’s birth, sh e resided principally in the United 11
Kingdom ; and (4) Baby L’s biological father was physically located in the United 12
Kingdom, and the court proceedings related to him occurred there

. Royal 13
Borough of Kensington & Chelsea v. Bafna

- Louis , No. 22

- CV

- 8303 (PKC), 2023 WL 14

2387385, at *13

– 14 (S.D.N.Y. Mar. 7, 2023)

. On such a record , we cannot conclude 15

that the District Court clearly err ed in finding that Baby L’s habitual residence is 16

the United Kingdom

. 176 II. Custody Rights 1

Ba f na

- Louis next challenges the District Court ’s conclusion that the Royal 2
Borough o f Kensington a nd Chelsea (“RBKC”) had custody rights over Baby L at 3

the time Baby L was remov ed from the United Kingdom

. Article 3 of the 4
Convention states, in relevant part, that the removal of a child is wrongful where 5

“ (a) it is in breach of rights of custody attributed to a person, an institution or any 6
other body , either jointly or alone, under the law of the State in which the child 7
was habitually resident immediately before the removal or retention; and (b) at 8
the time of removal or retention those rights were actually exercised, either 9
jointly or alone, or would have been so exercised but for the removal or 10

retention.” Hague Convention , Art. 3 (emphasis added). 11
Under the Convention, “rights of custody ” are defined to include “ rights 12
relating to the care of the person of the child and, in particular, the right to 13

determine the child ’ s place of residence. ” Hague Convention , Art. 5(a)

. Thus, 14

“ ‘ the Convention ’ s broad definition ’ of ‘ rights of custody ’ is not constrained to 15

‘ traditional notions of physical custody

. ’ ” Ozaltin , 708 F.3d at 367 (quoting 16

Abbott , 560 U.S. at 12)

. Instead, those rights “ may arise

. . . by operation of law or 177 by reason of a judicial or administrative decision . . . .” Hague Convention , Art. 1

3. N e exeat 1 rights , for example, “are rights of custod y

. ” Abbott , 560 U.S. at 15. 2
According “ considerable weight” to the laws of the United Kingdom, the 3
country of Baby L’s habitual residence , w e affirm the District Court ’s conclusion 4

that RBKC had custody rights over Baby L at the time of removal

. See Abbott , 560 5
U.S. at 10, 16. First, before Baby L was removed, the Family Court in London 6

issued two ne exeat order s prohibiting the removal of Baby L from the United 7
Kingdom. See App’x 77; App’x 898 ( “ T he mother must not remove the child 8

from the jurisdiction of England and Wales until further order.” )

. Referring to 9
the date of the first order, the High Court of Justice (“High Court”), Family 10

Division declared that “[t]he Court of England and Wales has been and remains 11
seized of proceedings concer ning [Baby L] since December 2021

. ” App’x 917 12
(emphasis added). The High Court also confirmed that Bafna

- Louis’s removal of 13
Baby L after the ne exeat orders was “ in breach of the rights of custody of the 14
Court.” App’x 918 ; see A v. B (Abduction: Declaration) [2009] 1 FLR 1253 , 1259

- 60 15
(noting that courts become vested with rights of custody once a “judicial 16

1 In the family law context, a ne exeat order is “ [ a ] n equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction.” Black's Law Dictionary ( 11 th ed. 20 19 )

.8 determination” has been issued); see also Abbott , 560 U.S. at 15

. Second, under the 1

law of the United Kingdom, the RBKC was delegated the authority to enforce the 2
rights of the High Court relating to Baby L. App’x 918. Third , the law of the 3
United Kingdom also provides that an institution “ claiming that a child has been 4

removed or retained in breach of custody rights

. . . does not [it] self have to have 5
custody rights but has to show that the removal is in breach of rights of custody 6
attributed to a person, an institution or any other body either jointly or alone 7

under the laws of the state in which the child was habitually resident 8
immediately before the removal. ” Re J (A Minor) (Abduction) [1990] 1 F.L.R. 276 , 9

27 9

- 80 (quotation marks omitted)

. 10

O ur review of the laws of the United Kingdom , including the 11
pronouncements of the High Court , persuade s us that the Family Court’s ne exeat 12

orders vested the RBKC with custody rights over Baby L before his remov al and 13
that the RBKC properly exercised those rights in this case

. 2 See Abbott , 560 U.S. at 14

13

. 15

2 B ecause we hold that the ne ex ea t orders conferred rights of custody, we need not address whether the child protection plan also conferred such rights

.9 III. Affirmative Defenses 1
Finally , Ba f n a

- Louis contends that the District Court erred in determining 2
that Baby L did not face a “ grave risk that his

. . . return would expose the child 3
to physical or psychological harm or otherwise place the child in an intolerable 4

situation , ” within the meaning of Article 13(b) of the Convention

. While the 5

holder of a “ ne exeat right has a right of custody and may seek a return remedy, a 6

return order is not automatic. ” Abbott , 560 U.S. at 22

. “[A] respondent who 7
opposes the return of the child has the burden of establishing

. . . by clear and 8
convincing evidence” that Article 13(b) applies

. 22 U.S.C. § 9003(e)(2)(A) ; see 9

Blondin v. Dubois , 189 F.3d 240, 245 (2d Cir. 1999)

. But Article 13(b)’s “ grave risk 10

of harm ” standard “involves not only the magnitude of the potential harm but 11
also the probability that the harm will materialize.” Souratgar , 720 F.3d at 10 3

. 12
“The potential harm to the child must be severe, and the level of risk and danger 13
required to trigger this exception has consistently been held to be ver y high.” Id. 14
(quotation marks omitted). More specifically, “a grave risk of harm from 15
repatriation arises in two situations: (1) where returning the child means sending 16
him to a zone of war, famine, or disease; or (2) in cases of serious abuse or 17
neglect, or extraordinary emotional dependence, when the court in th e country 1810 of habitual residence, for whatever reason, may be incapable or unwilling to give 1
the child adequate protection.” Id. (quotation marks omitted)

. 2

Based principally on her testimony that Individual

- 1 and Individual

- 2 3
raped, harassed, and assaulted her, Ba f na

- Louis argues that there is a grave risk 4

that Baby L will be exposed to great harm from those individual s if he is 5

returned to the United Ki ngdo m . Substantially for the reasons set for th in the 6
District Court’s March 7 order, however, we agree that Ba f na

- Louis failed to 7

show that Baby L ’s removal to the United Kingdom poses a grave risk of har m to 8

the child or would create an intolerable situation under Article 13(b)

. Bafna

9

Louis , 2023 WL 2387385 , at * 25

- 2 7

. 10

Conclusion 11

We have considered Bafna

- Louis ’s remaining arguments and conclude 12
that they are without merit. For the foregoing reason s, the order of the District 13

Court is AFFIRMED

. 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court 16 17