In the case we're going to hear is a smadly versus smadly and Mr. Humphrey. Good morning and may it please the court. My name is Jason Humphrey and I'm here on behalf of Mr. Mark Smadley, who is the respondent and the underlying hagg petition and the appellant in this matter. For matters of simplicity I will refer to Mr. Smadley as the father and Mrs. Smadley as the mother. The ninth circuit case has stated in the invest and invest if that to achieve the uniformity of application across countries upon which it depends the realization of the convention's goals. Courts must be able to reconcile their decisions with those reached by other courts in similar situations. The idea behind the hagg convention was to establish a level playing field and one playbook for all of the contracting states that participated in the hagg. As such each contracting state is bound by the articles of the treaty, the first of which Article 3 the most important says that if a child is wrongfully removed or retained in a country and that retention or removal is against custody rights of a parent from the habitual resident state or the removed state, then that removal is wrongful and the child must be returned under Article 12. Article 13 sets aside a few exceptions to the return rule and several of those we take issue with under the rule
. The first one was applied in this case and your argument is I guess they didn't go through section Article 3, they went right to the affirmative defense. Yes, Your Honor. And I guess the question is, is there a case we have that says you have to go through Article 3 when you're going to decide an affirmative defense that they can concede hypothetically that Article 3 might entitle you to win but then there's affirmative defense of consent. That's the whole case, isn't it? The legal case. You're also a child's committee. Correct. Whether we afford a comedy to a German court that found the facts. Correct. Our underlying argument is the extension of comedy by the district court on a what we contend is a flawed German court, hagg analysis and finding. To go back to your first question, I do not have a case that says that you are required to however the case law dealing with the hagg convention as well as the hagg convention itself would dictate that you must find habitual residence or make a determination of habitual residence to establish which set of laws of custody would. Let's assume you're right. It seems to me what the court was saying is that regardless of the residence of the children, the parents consented to the removal to Germany
. Why isn't that just traditional jurisprudence? You don't have to decide every issue if the main issue is if they concede that you win your position under Article 3 where you assert the child's residence, they're saying nonetheless Mark consented to the children going to Germany. And that's just a normal jurisprudential approach. Now you can challenge whether factually consent was demonstrated and you have argued that. But I'm not sure why we would have to go through Article 3 if it's not meaningful. Well under the fact that you stated your honor I would agree with you. However the German court didn't make that analysis. What they did was a muddy dichotomy of an Article 3 determination that wasn't an Article 3 determination. They went as far as to say we're not going to determine habitual residence of these children. We're going to leave that open. Okay then they afforded Article 13 protections to the children. Not just the affirmative defense. And basically correct the parents consent the finding under Article 3 doesn't matter
. But it does your honor because Article 13 says if the removal if you find a wrongful removal. And they have to go back under Article 12. Article 13 applies affirmative defenses. But to get to the affirmative defense stage you would have to the court would have to have found a wrongful removal in the first place. How are you harmed by that? I mean let's assume that as we do in qualified immunity analysis all the time that will assume for purposes of deciding that the habitual residence is as you argue. But it still does prevail because of its finding us to consent. How does that negatively affect your argument? Well it leaves my client with no available remedy. He was determined or the German court determined that they were not going to decide habitual residence. Let's just take it away Judge Duncan was just saying. Let's say you're arguing for what North Carolina, habitual residence? Correct. Okay so let's say the German court said we conclude that the habitual residence of the children is North Carolina. But we find as a fact that more consented to their removal to Germany
. Now would you have any objection to that? No I would not. Well I don't understand the difference. Well the problem is not meaningful to require to telecourt to find habitual residence when it's insignificant to its ultimate conclusion. Well let me take it a step further on your argument. What? Not an argument I'm just asking questions about hypothetical stuff. Forgive me. Our statement had it was that even if we were to assume that the court was not required to make an article three determination before enacting the affirmative consensus. The German court still contradicted itself and its findings because it said they weren't going to determine habitual residence. They were going to leave that open and it also said in its findings that the hague petition wasn't proper under the hague petition that it had no place under Article 3. That was in the first sentence of the very last paragraph of the Bambler of course ruling. So our contention is if my client has filed a hague petition that is not proper under the hague yet they give Article 13 affirmative defenses to the children. What remedies does my client have in order to pursue the protections that the hague convention is alleged to provide? He has no form in which to pursue
. So assume everything is done perfectly the way you argue. It doesn't advance the ball if the court found correctly that Mark consented to the removal of the children to Germany. In other words if Mark consented you're winning is nothing because he consented to the removal of the children to Germany and that's all the Bambler court decided. Are the kids properly there should be returned to the United States. And Bambler court said Mark consented to the children coming here. The rest of it is irrelevant. We'll leave it open. That's just sort of the way we decide cases isn't it? Well that can't be possible because if you make a hague application there has to be a determination for the rights of the parties involved. Again my client was left with no viable form to pursue his parental rights in the recovery of his children. How can he get parental rights to get the children back if he consented to sending them over? Well we are we continue to consent. I understand. The point is we are arguing or we are discussing something that's not ultimately disposited
. What the decision turned on that you challenge is consent. Not habitual residence. So you might want to, I don't want to tell you how to use your time but that seems to me to be... If we were to assume that the first argument was irrelevant then our consent argument is one of that... Actually we can assume that you win. I'm perfectly willing to assume that the habitual residence is North Carolina. But you consented. We contend we did not
. There was not enough evidence on record and the findings of fact to contend that. Mark had consented. One of the issues that we took with the German findings was that there was a significant amount of findings of fact dealing with the parties' marital discourse in his far back is seven years prior to the hague application. And their disagreements. Their marital relationship up to seven years prior to the hague application. Our course has been very clear saying that that's an irrelevant finding of fact that has no place in a hague convention application or in its ruling. That material has no bearing on the objective standards that a... Well it might give credibility to the discussion that took place in May, April, May, that spring before Daniella went to Germany. She testified as to the circumstances under which she went to Germany. And she's basically discussing it against the background where there has been marital problems throughout about the location of children where to live, who's going to be there
. They just weren't getting along I guess. But I don't know if that is material. The question is I think in affording comedy or not we have to figure out what the standard is. I think comedy has some deference to the Bambler Court if it acted reasonably. And the question is in finding that Mark consented during those discussions in that spring and summer. And then of course she said I'll think about it according to her testimony. Then she gets over to Germany and says I thought about it, I've decided no I'm going to stay. As I indicated before I left. The question I suspect is is that enough factual finding to support consent and was the court proper in finding it? Well we didn't think it was not proper. Not enough factual basis. But you have to find a little more don't you have to find that what is the standard we do we're not reviewing the court. We're affording comedy and we have to decide whether the court acted reasonably right? Actually there are
. As per the very few cases that have dealt with comedy of a Hague application. They have stated that a court may properly be fined in comedy if they find the foreign courts determination clearly misinterpreted the Hague Convention. Contravenes the conventions fundamental premises or objectives were failed to meet a minimum standard of reasonableness. We would contend that the lack of evidence in this fact that there were there were allegations or conclusions drawn from the evidence that was presented that he must have considered. There was no actual evidence that he said yes you may go to Germany permanently. In fact again our evidence in our argument was is that she she tapped by that she hadn't even made up her mind yet whether she was going to stay. So how could the father have considered to a decision that hadn't been made yet. And based on that at a minimum that that would be well below the reasonable standard of reasonableness for findings in that. If the court found that the testimony of properly found that the testimony of Daniela given and that's quoted in the opinion. And was correct is that evidence enough to conclude that the court acted reasonably in finding consent. You know the paragraph I'm talking about that's where she relates what happened that spring and summer. Yes
. No you're not that is not okay well that's fair enough. I just want to know where you're argumented considering the circumstances in the subject matter of the Hague application being the parental rights of children into children. We would see that consent must be clear and not alluded to or alleged based on allegations of one part. There was no clear act of the father to say that he consented to the court in remaining in Germany. And in fact his actions upon finding out were quite contrary to consent he immediately sought counsel file a Hague application and also simultaneously pursued a custody complaint in onesle counting all actions of a party who obviously would not have considered to their children remaining in a foreign country. I have a very few moments if there's any other questions from the bench at the time. Okay. You've got you've got some rebuttal reserved. Yes. Okay. Mr. Webb. Good morning and may I please the court. My name is Thurson Webb. I'll be representing the petitioner Danielle Sampson. The purpose of the Hague Convention is to prevent parents across international boundaries and search of a more sympathetic court. In light of that purpose this court has set the comedy that the heart of the Hague Convention. Here Mark the father asked this court to ignore that purpose to refuse to grant comedy to the German court's decision to essentially re-illitigate German court's decision and find a more favorable rule. Now Mark essentially makes three arguments on appeal. First he argues that the German court wrongly applied the Hague Convention failing to decide the habitual residence. However as Mark's attorney just consented that wouldn't matter. The Hague Convention, the Hague petition in Germany would have had no different conclusion even if the court has found habitual residence. Indeed if you look at Article 13, habitual residence does not apply at all in that application. I think it's important to recognize that the Hague Convention itself doesn't really set forth a roadmap on how things are supposed to be done and more sets out principles
. Good morning and may I please the court. My name is Thurson Webb. I'll be representing the petitioner Danielle Sampson. The purpose of the Hague Convention is to prevent parents across international boundaries and search of a more sympathetic court. In light of that purpose this court has set the comedy that the heart of the Hague Convention. Here Mark the father asked this court to ignore that purpose to refuse to grant comedy to the German court's decision to essentially re-illitigate German court's decision and find a more favorable rule. Now Mark essentially makes three arguments on appeal. First he argues that the German court wrongly applied the Hague Convention failing to decide the habitual residence. However as Mark's attorney just consented that wouldn't matter. The Hague Convention, the Hague petition in Germany would have had no different conclusion even if the court has found habitual residence. Indeed if you look at Article 13, habitual residence does not apply at all in that application. I think it's important to recognize that the Hague Convention itself doesn't really set forth a roadmap on how things are supposed to be done and more sets out principles. Now it's clear that if the court actually decided to make an Article 3 determination, yes, habitual residence is important. But there's nothing in Article 13 that actually requires that. Now second, Mark's attorney argues that the German court decision itself failed to meet the minimum standard of reasonableness. Now I would urge this court to go back and actually read the German court's opinion all throughout. If you read the entire thing, it's clear that what the mother actually testified to was she said, I had made the decision before. And then I agreed with Mark that I would actually further consider that decision. And indeed Mark told her before that, hey if you don't actually change your mind, I will then try to move the German. And when she moved to Germany and called Mark and said I'm not moving back, it wasn't the first time Mark had heard that. It was more a statement of, I've decided not to change my mind. Now third, Mark argues the district court erred by or the German court erred by finding acquiescence. Well district court here actually said that the German court did not make any ruling based on acquiescence. And in fact, acquiescence did happen in this case
. Now it's clear that if the court actually decided to make an Article 3 determination, yes, habitual residence is important. But there's nothing in Article 13 that actually requires that. Now second, Mark's attorney argues that the German court decision itself failed to meet the minimum standard of reasonableness. Now I would urge this court to go back and actually read the German court's opinion all throughout. If you read the entire thing, it's clear that what the mother actually testified to was she said, I had made the decision before. And then I agreed with Mark that I would actually further consider that decision. And indeed Mark told her before that, hey if you don't actually change your mind, I will then try to move the German. And when she moved to Germany and called Mark and said I'm not moving back, it wasn't the first time Mark had heard that. It was more a statement of, I've decided not to change my mind. Now third, Mark argues the district court erred by or the German court erred by finding acquiescence. Well district court here actually said that the German court did not make any ruling based on acquiescence. And in fact, acquiescence did happen in this case. After the German hate petition went through its proceedings, there was a divorce proceeding in Germany. And in that divorce proceeding, Mark agreed to allow the German court to determine custody. And at no point since then has Mark gone back and actually tried to change custody determination. He could if he wanted. But she didn't get custody. It was joint custody. It was joint custody. Yes, you're on. All right, so that doesn't advance the ball. I think well, as this court has actually what other courts have interpreted acquiescence. One way to acquiesce to the children staying in another country is you allow that other country's courts to decide custody. Here, Mark allowed the German court to decide custody based on or in granite jointly to both the mother and the father
. After the German hate petition went through its proceedings, there was a divorce proceeding in Germany. And in that divorce proceeding, Mark agreed to allow the German court to determine custody. And at no point since then has Mark gone back and actually tried to change custody determination. He could if he wanted. But she didn't get custody. It was joint custody. It was joint custody. Yes, you're on. All right, so that doesn't advance the ball. I think well, as this court has actually what other courts have interpreted acquiescence. One way to acquiesce to the children staying in another country is you allow that other country's courts to decide custody. Here, Mark allowed the German court to decide custody based on or in granite jointly to both the mother and the father. What about the round trip plane ticket? Isn't that some indication that Mr. Smetli did not consent to their permanent move to Germany? I disagree. I think it actually fits quite nicely with the NL story. Two points on that. First, as it says in the record, a round trip ticket was actually cheaper to buy only one way to do. And second, as Daniela said, she said she would allow or she would agree to reconsider her decision once she got over there. By Mark actually agreeing to or by Mark buying a round trip ticket, he left open that possibility just in case Daniela had actually reconsidered her decision. Well, I thought that the record just relies on Daniela's testimony about a round trip ticket being more expensive. Is there evidence to support that in the record? Not that I'm aware of. That was the evidence that was before the German court. And she also testified that to the district in front of the district court here. That raises a concern I did have about negative, the negative credibility determinations that the German court seemed willing to make against a party who wasn't present
. What about the round trip plane ticket? Isn't that some indication that Mr. Smetli did not consent to their permanent move to Germany? I disagree. I think it actually fits quite nicely with the NL story. Two points on that. First, as it says in the record, a round trip ticket was actually cheaper to buy only one way to do. And second, as Daniela said, she said she would allow or she would agree to reconsider her decision once she got over there. By Mark actually agreeing to or by Mark buying a round trip ticket, he left open that possibility just in case Daniela had actually reconsidered her decision. Well, I thought that the record just relies on Daniela's testimony about a round trip ticket being more expensive. Is there evidence to support that in the record? Not that I'm aware of. That was the evidence that was before the German court. And she also testified that to the district in front of the district court here. That raises a concern I did have about negative, the negative credibility determinations that the German court seemed willing to make against a party who wasn't present. Perhaps through no fault of his own. Well, it's using his presence. What when Mark his attorney first came forward, he told his attorney to say I didn't find out about this, but her not coming back until I think it was August 10th based on a Facebook post. Daniela then presented as evidence a Facebook message that Mark had sent her a week or two before. And after he presented that Facebook message, the court allowed granted a recess of sorts and allowed Mark to rebut that. And he came back and he said, yes, actually I knew about that before the time that I originally stated. So what the German court said is that based on that and that based on the fact that the children themselves actually cooperated all the other mother's testimony, we don't find the father's testimony credible. If there are no further questions, we ask the court to affirm this report. Mr. Humphrey. I'm pretty honest. I have her testimony right here in front of you, but I think fairly she says basically she decided to separate and go take go back to Germany and to take the children
. Perhaps through no fault of his own. Well, it's using his presence. What when Mark his attorney first came forward, he told his attorney to say I didn't find out about this, but her not coming back until I think it was August 10th based on a Facebook post. Daniela then presented as evidence a Facebook message that Mark had sent her a week or two before. And after he presented that Facebook message, the court allowed granted a recess of sorts and allowed Mark to rebut that. And he came back and he said, yes, actually I knew about that before the time that I originally stated. So what the German court said is that based on that and that based on the fact that the children themselves actually cooperated all the other mother's testimony, we don't find the father's testimony credible. If there are no further questions, we ask the court to affirm this report. Mr. Humphrey. I'm pretty honest. I have her testimony right here in front of you, but I think fairly she says basically she decided to separate and go take go back to Germany and to take the children. And he tried to persuade her differently and that was her decision when she went that she was going to go back and separate and take the children to Germany, but she did allow that she would revisit, she would consider his request and give them a final decision after she got there. According to that agreement, she did give them the final decision and she said that that agreement with Mark that she would give them that final decision was followed by Mark's assertion that if that's what she decided, then he would try to come over to Germany, be near the children. And that would be consent wouldn't it? If that were the fact. Yeah, but that's what she testified to, right? Correct. Okay. We continue that was not the situation. And what do we have to rebut that? Well, let me back up a step back. I can't agree with that entirely in the sense that it would appear that her communications to Mark upon a revisit of the issue to me would reopen the question of consent at that point. If she had made up her mind and she said, I'm going and this is it. And he said, you're good to go and they leave. He considered it. If she goes under the on the auspice that I'm not really sure what I'm going to do
. And he tried to persuade her differently and that was her decision when she went that she was going to go back and separate and take the children to Germany, but she did allow that she would revisit, she would consider his request and give them a final decision after she got there. According to that agreement, she did give them the final decision and she said that that agreement with Mark that she would give them that final decision was followed by Mark's assertion that if that's what she decided, then he would try to come over to Germany, be near the children. And that would be consent wouldn't it? If that were the fact. Yeah, but that's what she testified to, right? Correct. Okay. We continue that was not the situation. And what do we have to rebut that? Well, let me back up a step back. I can't agree with that entirely in the sense that it would appear that her communications to Mark upon a revisit of the issue to me would reopen the question of consent at that point. If she had made up her mind and she said, I'm going and this is it. And he said, you're good to go and they leave. He considered it. If she goes under the on the auspice that I'm not really sure what I'm going to do. I think about it when I get over there and then I'll call. She didn't say that. That I told him I'm separating. I'm going to Germany taking the kids and he tried to persuade them. And what she agreed with him is to leave open the decision and let him know. And he agreed to that and as part of his agreement. And the event I decided to stay in Germany. Mark told me that he would quickly try to be relocated so he could be as close as possible with the children. Under that circumstances, then Mark's consent would have been consent to her to go to Germany and then revisit the issue in July. Not for her to remain permanently. Well, that was her intent at the beginning. I'm separating from you
. I think about it when I get over there and then I'll call. She didn't say that. That I told him I'm separating. I'm going to Germany taking the kids and he tried to persuade them. And what she agreed with him is to leave open the decision and let him know. And he agreed to that and as part of his agreement. And the event I decided to stay in Germany. Mark told me that he would quickly try to be relocated so he could be as close as possible with the children. Under that circumstances, then Mark's consent would have been consent to her to go to Germany and then revisit the issue in July. Not for her to remain permanently. Well, that was her intent at the beginning. I'm separating from you. In fact, they separated in February three months before or several months before the trip to Germany. Well, we continue that. We continue that. That didn't happen either. Well, that's in the court filing by your client in the divorce proceedings at 39G of the record. I'm sorry. I was thinking of these. They've been separated since February 2011. That's in the divorce proceedings. The divorce proceedings of the German court. If there were deportations under the German court, then that would have been at the, the has to. The defendant has confirmed to me that he and his wife have been separated since February 2011
. In fact, they separated in February three months before or several months before the trip to Germany. Well, we continue that. We continue that. That didn't happen either. Well, that's in the court filing by your client in the divorce proceedings at 39G of the record. I'm sorry. I was thinking of these. They've been separated since February 2011. That's in the divorce proceedings. The divorce proceedings of the German court. If there were deportations under the German court, then that would have been at the, the has to. The defendant has confirmed to me that he and his wife have been separated since February 2011. Well, I'm not sure you are. That was part of the German decision. My understanding was that aside from that, consent to allow one's children to leave a country permanently is not a decision that one can take lightly or make lightly and should not be reviewed lightly. Is that the standard under German law? Well, what's the standard for reviewing a finding of consent? You're saying that it should be clear and convincing and I'm just asking, is that the evidentiary standard that we apply? The standard of this court would be to review the hate ruling for one of the three or more of the three items that I had discussed in my previous argument was that it's minimum reasonableness or. Mr. Humphrey, I'm only trying to clarify what you said that a finding of consent should be based on clear and convincing evidence. The Walker case, Walker B. Walker said that and I'm correct, is that evidence of a consent? You can answer the question. Again, I don't have the case of attorney, but if I'm not mistaken, that consent was something that was an objective thing that a court would determine, whereas acquiescence would have been something that could be in court. I'm not saying that consent has to be an objective thing that can be inferred from behavior, but consent has to be a positive or objective action on the party of the court. How does that become clear and convincing? I misspoke from that. Okay
. Thank you. We'll come down in Greek Council and then proceed on to the last case