4. CompareFawcett v. McRoberts, 326 F.3d 491 (4th Cir.2003) (finding that the United States courts retained the power to grant meaningful relief because the district court could order the child's return to the United States following a reversal and remand and stating it is not clear that a lack of effective methods for enforcing a court order necessarily means that the court's opinion cannot affect the matter at issue) and Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004) (same) withBekier v. Bekier, 248 F.3d 1051 (11th Cir.2001) (finding case moot after children's return to country of habitual residence because federal courts become powerless to grant relief to respondent). Respondent further maintains case law from our sister circuits should lead us to conclude this case cannot be moot.
The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (C.A.4 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit has followed the reasoning of the Croll dissent.
Three federal appellate courts have determined that ne exeat orders and statutory ne exeat provisions do not create "rights of custody" under the Hague Convention. See Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir. 2002); Croll v. Croll, 229 F.3d 133, 138-39 (2d Cir. 2000). One federal appellate court, however, has reached the opposite conclusion.
Id. Fourth and finally, Shahani asserts that this appeal is analogous to Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004) cert. denied, 545 U.S. 1131, 125 S.Ct. 2938, 162 L.Ed.2d 871 (2005), and Fawcett v. McRoberts, 326 F.3d 491 (4th Cir.2003), in which the Third and Fourth Circuits concluded that an appeal of an order granting a Hague Convention petition is not mooted by the child's return to his country of habitual residence during the pendency of the appeal. In Fawcett, whose logic the Third Circuit substantially adopted, the Fourth Circuit explained that it retained the power to grant meaningful relief because the district court could order the child's return to the United States following a reversal and remand.
We are unconvinced by the Bekier court's reasoning and decline to adopt it. Instead, we will follow the rationale of the other court of appeals weighing in on this precise issue — the Fourth Circuit in Fawcett v. McRoberts, 326 F.3d 491, 495-96 (4th Cir. 2003). There, the court had the same difficulty as we do with the Bekier court's analysis, and rejected it.
The Court notes that, while the Second Circuit has not directly addressed this issue, at least two other circuit courts have held that an appeal from a decision under the Hague Convention does not become moot merely because a child is returned to the custody of the petitioner in a foreign country, and at least one has reached the opposite conclusion. Compare Whiting v. Krassner, 391 F.3d 540, 545 (3d Cir. 2004) (return did not moot appeal); Fawcett v. McRoberts, 326 F.3d 491, 496-97 (4th Cir. 2003) (same) (abrogated on other grounds, Abbott v. Abbott, 130 S.ct. 1983, 2009 (2010))with Bekier v. Bekier, 248 F.3d 1051, 1055 (11th Cir. 2001) (return did moot appeal because federal court was "powerless" to grant relief to the respondent afterward). In Fawcett, whose logic the Third Circuit substantially adopted in Whiting, the Fourth Circuit acknowledged that, in some cases, "once an action has been taken there is no way to unscramble the egg," but observed that "no law of physics would make it impossible for [petitioner] to comply with an order by the district court that she return [the child] to the United States" following a reversal and remand.
Other federal courts of appeals have criticized Bekier and have reached the merits of the case despite the fact the child at issue had already been returned to the petitioning parent. See generally Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003); see also Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004). As one court pointed out, "no law of physics would make it impossible" for a parent to comply with an order to return a child to the United States. Fawcett, 326 F.3d at 496.
See Steele v. Bulova Watch Co., 344 U.S. 280, 289, 73 S. Ct. 252, 97 L. Ed. 319, 1953 Dec. Comm'r Pat. 424 (1952); cf. Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451-452, 52 S. Ct. 238, 76 L. Ed. 389, 1932 Dec. Comm'r Pat. 564 (1932). No law of physics prevents E. C.'s return from Scotland, see Fawcett v. McRoberts, 326 F.3d 491, 496 (CA4 2003), abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1, 130 S. Ct. 1983, 176 L. Ed. 2d 789 (2010), and Ms. Chafin might decide to comply with an order against her and return E. C. to the United States, see, e.g., Larbie v. Larbie, 690 F.3d 295, 303-304 (CA5 2012) (mother who had taken child to United Kingdom complied with Texas court sanctions order and order to return child to United States for trial), cert. pending, No. 12-304. After all, the consequence of compliance presumably would not be relinquishment of custody rights, but simply custody proceedings in a different forum.
We adopt the conclusion of the House of Lords in In re H that a court in the child's country of habitual residence may be such a guardian where custody proceedings are pending before it. In re H (A Minor) (Abduction: Rights of Custody) , [2000] 2 A.C. 291, 1999 WL 1319095 (appeal taken from Eng.); see Fawcett v. McRoberts , 326 F.3d 491, 500 (4th Cir. 2003) (adopting same, noting that "judicial ‘opinions of our sister signatories’ to the Convention are ‘entitled to considerable weight.’ " (quoting Air France v. Saks , 470 U.S. 392, 404, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) )), abrogated on other grounds by Abbott v. Abbott , 560 U.S. 1, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010).