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

Opinion

23-470 Royal Borough of Kensington and Chelsea v. Tara Bafna-Louis

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 22nd day of September, two thousand twenty-three. 4 5 PRESENT: REENA RAGGI, 6 RAYMOND J. LOHIER, JR., 7 SUSAN L. CARNEY, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 ROYAL BOROUGH OF 11 KENSINGTON AND CHELSEA, 12 13 Petitioner-Appellee, 14 15 v. No. 23-470 16 17 TARA BAFNA-LOUIS, ALSO 18 KNOWN AS TALIA BECKER, 19 TALIA LOUIS, TARA BECKER, 20 TARA MAYNARD, TALIYA 21 BECKER, AND/OR TALIYA LOUIS,

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1 Respondent-Appellant. 2 ------------------------------------------------------------------ 3 4 FOR PETITIONER-APPELLEE: KELLY ANN POWERS, Stephen 5 John Cullen, Miles & 6 Stockbridge P.C., Washington, 7 DC

8 FOR RESPONDENT-APPELLANT: VALDI LICUL, Wigdor LLP, 9 New York, NY

10 Appeal from an order of the United States District Court for the Southern 11 District of New York (P. Kevin Castel, Judge). 12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 13 AND DECREED that the order of the District Court is AFFIRMED. 14 Respondent-Appellant Tara Bafna-Louis appeals from an order of the 15 United States District Court for the Southern District of New York (Castel, J.) 16 requiring the return of her child, Baby L, to the United Kingdom pursuant to the 17 Hague Convention on the Civil Aspects of International Child Abduction, Oct. 18 25, 1980 T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 19 (Mar. 26, 1986) (“Hague Convention” or “Convention”) and its implementing 20 statute, the International Child Abduction Remedies Act, 22 U.S.C. § 9001 21 (“ICARA”). We assume the parties’ familiarity with the underlying facts and the

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1 record of prior proceedings, to which we refer only as necessary to explain our 2 decision to affirm. 3 The Convention seeks “to secure the prompt return of children wrongfully 4 removed to or retained in any Contracting State,” and “to ensure that rights of 5 custody and of access under the law of one Contracting State are effectively 6 respected in the other Contracting States.” Abbott v. Abbott, 560 U.S. 1, 8 (2010) 7 (quoting Hague Convention, Art. 1). “The United States is a Contracting State to 8 the [C]onvention.” Hofmann v. Sender, 716 F.3d 282, 290 (2d Cir. 2013). “[T]o 9 prevail on a claim under the [] Convention a petitioner must show that (1) the 10 child was habitually resident in one State and has been removed to or retained in 11 a different State; (2) the removal or retention was in breach of the petitioner’s 12 custody rights under the law of the State of habitual residence; and (3) the 13 petitioner was exercising those rights at the time of the removal or retention.” 14 Gitter v. Gitter, 396 F.3d 124, 130–31 (2d Cir. 2005). A respondent who opposes a 15 child’s return may establish certain defenses under Article 13 of the Convention. 16 See Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013). In cases arising under the 17 Convention and ICARA, we review a district court’s factual findings for clear 18 error and its legal conclusions de novo. Ozaltin v. Ozaltin, 708 F.3d 355, 368 (2d

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1 Cir. 2013). “Legal conclusions include interpretations of the Convention and 2 applications of the appropriate legal standards to the facts.” Id. 3 I. Habitual Residence 4 Bafna-Louis first challenges the District Court’s determination that Baby 5 L’s habitual residence is the United Kingdom. A child’s habitual residence 6 presents a “mixed question of law and fact—albeit barely so.” Monasky v. 7 Taglieri, 140 S. Ct. 719, 730 (2020) (quotation marks omitted). “Once “the trial 8 court correctly identifies the governing totality-of-the-circumstances standard, 9 however, what remains for the court to do in applying that standard . . . is to 10 answer a factual question: Was the child at home in the particular country at 11 issue?” Id. Because the District Court here identified the correct legal standard, 12 we review its habitual residence determination “by a clear-error review standard 13 deferential to the factfinding court,” id., keeping in mind that “courts must be 14 sensitive to the unique circumstances of the case and informed by common 15 sense,” id. at 727 (quotation marks omitted). 16 In general, “[a] child ‘resides’ where she lives. [A child’s] residence in a 17 particular country can be deemed ‘habitual,’ however, only when her residence 18 there is more than transitory.” Id. at 726 (citations omitted). For children who

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1 are too young to acclimate to their surroundings — as is the case with Baby L — 2 the “intentions and circumstances of caregiving parents are relevant 3 considerations.” Id. at 727. “No single fact, however, is dispositive[.]” Id. 4 Here, the District Court considered all of the relevant factors and credited 5 Bafna-Louis’s testimony that she intended to relocate to New York with Baby L. 6 The District Court nevertheless found that Baby L was a habitual resident of the 7 United Kingdom. That finding was supported principally by the following 8 record evidence: (1) Baby L was born in London and was issued a passport by 9 the United Kingdom; (2) at the time Baby L was born, Bafna-Louis “had long 10 maintained a residence in [the United Kingdom];” (3) when Bafna-Louis traveled 11 internationally prior to Baby L’s birth, she resided principally in the United 12 Kingdom; and (4) Baby L’s biological father was physically located in the United 13 Kingdom, and the court proceedings related to him occurred there. Royal 14 Borough of Kensington & Chelsea v. Bafna-Louis, No. 22-CV-8303 (PKC), 2023 WL 15 2387385, at *13–14 (S.D.N.Y. Mar. 7, 2023). On such a record, we cannot conclude 16 that the District Court clearly erred in finding that Baby L’s habitual residence is 17 the United Kingdom.

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1 II. Custody Rights 2 Bafna-Louis next challenges the District Court’s conclusion that the Royal 3 Borough of Kensington and Chelsea (“RBKC”) had custody rights over Baby L at 4 the time Baby L was removed from the United Kingdom. Article 3 of the 5 Convention states, in relevant part, that the removal of a child is wrongful where 6 “(a) it is in breach of rights of custody attributed to a person, an institution or any 7 other body, either jointly or alone, under the law of the State in which the child 8 was habitually resident immediately before the removal or retention; and (b) at 9 the time of removal or retention those rights were actually exercised, either 10 jointly or alone, or would have been so exercised but for the removal or 11 retention.” Hague Convention, Art. 3 (emphasis added). 12 Under the Convention, “rights of custody” are defined to include “rights 13 relating to the care of the person of the child and, in particular, the right to 14 determine the child’s place of residence.” Hague Convention, Art. 5(a). Thus, 15 “‘the Convention’s broad definition’ of ‘rights of custody’ is not constrained to 16 ‘traditional notions of physical custody.’” Ozaltin, 708 F.3d at 367 (quoting 17 Abbott, 560 U.S. at 12). Instead, those rights “may arise . . . by operation of law or

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1 by reason of a judicial or administrative decision . . . .” Hague Convention, Art. 2 3. Ne exeat 1 rights, for example, “are rights of custody.” Abbott, 560 U.S. at 15. 3 According ”considerable weight” to the laws of the United Kingdom, the 4 country of Baby L’s habitual residence, we affirm the District Court’s conclusion 5 that RBKC had custody rights over Baby L at the time of removal. See Abbott, 560 6 U.S. at 10, 16. First, before Baby L was removed, the High Court of Justice (the 7 “High Court”), Family Division in London issued two ne exeat orders prohibiting 8 the removal of Baby L from the United Kingdom. See App’x 77; App’x 898 (“The 9 mother must not remove the child from the jurisdiction of England and Wales 10 until further order.”). These ne exeat orders granted the High Court rights of 11 custody over Baby L. See A v. B (Abduction: Declaration) [2009] 1 FLR 1253, 1259- 12 60 (noting that courts become vested with rights of custody once a “judicial 13 determination” has been issued); see also Abbott, 560 U.S. at 15. Second, under the 14 law of the United Kingdom, the RBKC was delegated the authority to enforce the 15 rights of the High Court relating to Baby L. App’x 918. Third, the law of the 16 United Kingdom also provides that an institution “claiming that a child has been

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 (11th ed. 2019).

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1 removed or retained in breach of custody rights . . . does not [it]self have to have 2 custody rights but has to show that the removal is in breach of rights of custody 3 attributed to a person, an institution or any other body either jointly or alone 4 under the laws of the state in which the child was habitually resident 5 immediately before the removal.” Re J (A Minor) (Abduction) [1990] 1 F.L.R. 276, 6 279-80 (quotation marks omitted). Moreover, the High Court itself declared in 7 the context of this case that Bafna-Louis’s removal of Baby L after the ne exeat 8 orders was “in breach of the rights of custody of the Court.” App’x 918. 9 Our review of the laws of the United Kingdom, including the 10 pronouncements of the High Court, persuades us that the High Court’s ne exeat 11 orders vested the RBKC with custody rights over Baby L before his removal and 12 that the RBKC properly exercised those rights in this case. 2 See Abbott, 560 U.S. at 13 13. 14 III. Affirmative Defenses 15 Finally, Bafna-Louis contends that the District Court erred in determining 16 that Baby L did not face a “grave risk that his . . . return would expose the child 17 to physical or psychological harm or otherwise place the child in an intolerable

2Because we hold that the ne exeat orders conferred rights of custody, we need not address whether the child protection plan also conferred such rights.

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1 situation,” within the meaning of Article 13(b) of the Convention. While the 2 holder of a “ne exeat right has a right of custody and may seek a return remedy, a 3 return order is not automatic.” Abbott, 560 U.S. at 22. “[A] respondent who 4 opposes the return of the child has the burden of establishing . . . by clear and 5 convincing evidence” that Article 13(b) applies. 22 U.S.C. § 9003(e)(2)(A); see 6 Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999). But Article 13(b)’s “grave risk 7 of harm” standard “involves not only the magnitude of the potential harm but 8 also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103. 9 “The potential harm to the child must be severe, and the level of risk and danger 10 required to trigger this exception has consistently been held to be very high.” Id. 11 (quotation marks omitted). More specifically, “a grave risk of harm from 12 repatriation arises in two situations: (1) where returning the child means sending 13 him to a zone of war, famine, or disease; or (2) in cases of serious abuse or 14 neglect, or extraordinary emotional dependence, when the court in the country 15 of habitual residence, for whatever reason, may be incapable or unwilling to give 16 the child adequate protection.” Id. (quotation marks omitted). 17 Based principally on her testimony that Individual-1 and Individual-2 18 raped, harassed, and assaulted her, Bafna-Louis argues that there is a grave risk

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1 that Baby L will be exposed to great harm from those individuals if he is 2 returned to the United Kingdom. Substantially for the reasons set forth in the 3 District Court’s March 7 order, however, we agree that Bafna-Louis failed to 4 show that Baby L’s removal to the United Kingdom poses a grave risk of harm to 5 the child or would create an intolerable situation under Article 13(b). Bafna- 6 Louis, 2023 WL 2387385, at *25-27. 7 Conclusion 8 We have considered Bafna-Louis’s remaining arguments and conclude 9 that they are without merit. For the foregoing reasons, the order of the District 10 Court is AFFIRMED.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk of Court