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

Background

The court had entered a Return Order on March 21, 2023. The order provided for Baby L’s return on May 17, 2023, if accompanied by Bafna-Louis, or on May 20, 2023, if accompanied by a representative of the Royal Borough of Kensington and Chelsea (RBKC). Bafna-Louis filed a notice of interlocutory appeal on March 30, 2023.

On May 2, 2023, the Second Circuit appointed counsel for Bafna-Louis and stayed the Return Order for 60 days. That stay was intended to allow counsel to be appointed, prepare a stay motion, and allow the district court and the Second Circuit to consider the renewed request. Pro bono counsel was later secured, and Bafna-Louis reported that her appeal would be fully briefed by August 8, 2023, with oral argument scheduled for the first available appellate panel in September.

Bafna-Louis then moved under Rule 62(d) of the Federal Rules of Civil Procedure for a stay of the Return Order. RBKC submitted a response.

Legal standard

The court applied four traditional stay factors: (1) whether the applicant made a strong showing of likely success on the merits; (2) whether the applicant would suffer irreparable harm without a stay; (3) whether a stay would substantially injure other interested parties; and (4) where the public interest lies. The court noted that the first two factors are the most important. It also considered the standard that a stay may be appropriate when the applicant shows a substantial possibility, though less than a likelihood, of success on appeal.

The court explained that stays of return orders under the Hague Convention are rarely appropriate because the Convention and its implementing law emphasize the prompt return of children wrongfully removed or retained.

Court’s analysis

On the first factor, the court found that Bafna-Louis had not made a strong showing that she was likely to succeed on appeal, or a substantial showing that the court’s decision contained clear error. The Second Circuit had directed briefing on whether Baby L was habitually resident in the United Kingdom when removed, whether RBKC had custody rights at that time, and whether Bafna-Louis had established an affirmative defense under the Hague Convention. The district court declined to revisit its prior findings and conclusions, stating that its earlier decision had considered Baby L’s infant status, his upbringing, RBKC’s custody, and Bafna-Louis’s defenses in detail.

On the second factor, Bafna-Louis argued that returning Baby L while the court had declined to order the return of thirteen-year-old CBL could cause irreparable harm by separating the children and the family. The court rejected that characterization. It had previously stated that CBL could choose whether to remain in the United States or return to the United Kingdom, and that it was not ordering the family’s separation. The court had declined to compel CBL’s return based on its observations of his maturity and his objection to returning.

Bafna-Louis also argued that moving Baby L back and forth overseas could harm him. The court stated that delaying a child’s return for that reason alone is disfavored because a later return could become more difficult if the petitioner ultimately prevails on appeal. It concluded that Bafna-Louis had not shown a need for an additional district-court stay to seek a stay from the Second Circuit, noting that the Return Order had already allowed approximately two months before Baby L’s return and that the Second Circuit had ordered a 60-day stay.

The third factor was neutral. The court noted that RBKC is a public entity and therefore did not have the same interest in being reunited with Baby L as a family member would. RBKC also had not identified a separate injury that other interested parties would suffer from a stay.

The fourth factor weighed against a stay. The court stated that the public interest in a Hague Convention dispute is primarily defined by the treaty’s purpose of securing the prompt return of children wrongfully removed to or retained in another country. Further delay, the court concluded, would conflict with that purpose.

Disposition

Judge P. Castel denied Bafna-Louis’s application for a stay. The opinion’s disposition concerns the stay request; it does not state that the court altered or vacated the Return Order.