[00:00:00] Speaker 02:
Good morning, everyone.

[00:00:02] Speaker 02:
Welcome to the Ninth Circuit.

[00:00:04] Speaker 02:
There are a few cases we're going to hear oral argument on today, but one matter is submitted on the briefs, and that is Walker versus National Technology and Engineering Solutions of Sandia.

[00:00:18] Speaker 02:
That matter is submitted on the briefs.

[00:00:21] Speaker 02:
Our first matter that we have is Nisbet versus Bridger.

[00:00:25] Speaker 02:
Let's see, if we could have Ms.

[00:00:29] Speaker 02:
Jensen whenever you're ready.

[00:00:37] Speaker 02:
Good morning.

[00:00:38] Speaker 03:
Good morning.

[00:00:40] Speaker 03:
May I please court, Reagan Jensen on behalf of Petitioner Dr. Nisbet.

[00:00:44] Speaker 03:
I'd like to reserve one minute for a bottle.

[00:00:46] Speaker 02:
Very well.

[00:00:48] Speaker 03:
Your Honours, the fundamental premise of the Hague Convention is that parents must not be able to abduct their children and flee to someplace that they believe will be more friendly to their desires about custody.

[00:00:59] Speaker 03:
Instead, local courts retain the power to decide issues of custody over the children who reside in their jurisdictions, and they must be allowed to make those decisions.

[00:01:08] Speaker 03:
Here, the mother violated both of these principles when she removed the children from their home without warning or permission, fled to the United States, and only then filed for custody in a jurisdiction that she believed would be more favorable.

[00:01:20] Speaker 02:
I guess I wanted to get something cleared up.

[00:01:28] Speaker 02:
In order for the court to overrule

[00:01:32] Speaker 02:
the factual determination by the district court judge, the standard is clear error, correct?

[00:01:37] Speaker 04:
Yes.

[00:01:38] Speaker 02:
All right, so explain to me why the district court clearly erred in the factual determinations that they made about the habitual residence.

[00:01:46] Speaker 03:
Yes, your honor.

[00:01:47] Speaker 03:
So in this case, the district court's finding was based off of coercion, alleged coercion by the father.

[00:01:54] Speaker 03:
in keeping the mother in Scotland.

[00:01:57] Speaker 03:
But in doing so, the court essentially conflated lack of consent to remove the children from the jurisdiction with coercion.

[00:02:04] Speaker 02:
Well, let me see.

[00:02:05] Speaker 02:
Do I have it clear that the court found Ms.

[00:02:10] Speaker 02:
Bridger credible?

[00:02:11] Speaker 00:
Yes.

[00:02:12] Speaker 02:
And that's not clearly erroneous.

[00:02:15] Speaker 02:
All right, so, and in fact, when Ms.

[00:02:20] Speaker 02:
Bridger indicated that she was a caregiver, was that clearly erroneous?

[00:02:25] Speaker 02:
No, Your Honor.

[00:02:30] Speaker 02:
It might be me, I don't know.

[00:02:31] Speaker 02:
Let me, let me, we'll figure this out here in a second.

[00:02:37] Speaker 02:
Apologies about the noise.

[00:02:44] Speaker 02:
Was the district court judge then clearly erroneous as to the friends and family that the children did or did not have?

[00:02:58] Speaker 03:
no your honor wasn't clearly erroneous but the district court entirely failed to adequately address the fact that the children had remained in the same home in the same in part apartment in fact in Scotland for more than two and a half years had attended school there had medical care there and had dental care there which are all.

[00:03:17] Speaker 03:
Considerations that it needed to take account of because following Manaskey the Supreme Court's decision the the inquiry is Through the eyes of the children where they're at home and where they've lived in the same place for the same time It's generally a relatively straightforward the children were three and five at the time correct two and four and

[00:03:36] Speaker 02:
Two and four, sorry, two and four.

[00:03:38] Speaker 02:
And the children, according to the mother, they had not established any of those connections, did they?

[00:03:49] Speaker 03:
According to the mother, no.

[00:03:52] Speaker 02:
And again, the court found her credible.

[00:03:56] Speaker 03:
The inquiry here is a totality of the circumstances test.

[00:04:00] Speaker 03:
So the intentions of the caregiver are relevant, but they can't be the only inquiry.

[00:04:05] Speaker 03:
And so we have to look at where the children resided, where the children felt like they were at home, and where they'd lived in the same place for more than two and a half years and hadn't lived anywhere else.

[00:04:14] Speaker 03:
That has to be something that the district court considers.

[00:04:17] Speaker 03:
And here, they didn't adequately address that and instead found that there was coercion that prevented

[00:04:23] Speaker 01:
Council, if we thought that the district court was an error here, a clear error, would the mother be able to accompany the kids back to Scotland for any proceedings in Scotland?

[00:04:37] Speaker 03:
Your Honor, that's the second error that we think is the court made here on the grave risk determination.

[00:04:44] Speaker 03:
Critically, the district court just assumed without any evidence that the mother could not return to Scotland.

[00:04:50] Speaker 01:
But under the grave risk test, she bears the exceptional and high burden of showing that- Okay, aside from sort of allocating risk and sort of faulting people for not proving things, do we know anything about whether Scotland would allow her to come back for the purposes of defending her custody of her children?

[00:05:09] Speaker 03:
Under United Kingdom authority, yes, we believe that is the case.

[00:05:18] Speaker 01:
What is the case?

[00:05:19] Speaker 03:
That she would be able to return with the children for the determination of custody.

[00:05:24] Speaker 01:
And do we know what would happen if a Scottish court determined that she should be the primary custody giver, whether she would be allowed to stay in Scotland or whether they had some kind of a shared custody arrangement?

[00:05:35] Speaker 03:
We don't know, but it's up for the Scottish court to determine that in the first instance, not this court or a court in Oregon.

[00:05:42] Speaker 01:
The district court, the legal expert, Lange, said that, thought that the question as to whether KRN had been wrongfully removed was fairly straightforward under Scottish law, but that of ACN was not because he was born in Jersey, which is a Crown protectorate and not part of the United Kingdom.

[00:06:03] Speaker 01:
So where does the inquiry shift for us to try to figure out whether Dr. Nisbet has custody rights or any kind of parental rights over ACN?

[00:06:13] Speaker 03:
So Mr. Lang was opining on Scottish law and Scottish custody, but that's the wrong inquiry.

[00:06:19] Speaker 03:
The inquiry is whether under the Hague Convention, the father was exercising a right of custody.

[00:06:25] Speaker 01:
But what law would we look to to determine whether that was a right of custody?

[00:06:28] Speaker 01:
For KRN, Lang looked to Scottish law and said even though they were not married, he did have certain custody rights in KRN.

[00:06:38] Speaker 01:
But what about ACN?

[00:06:39] Speaker 01:
Do we have to look to Jersey law for that?

[00:06:41] Speaker 01:
Do we just not get an opinion on Jersey law?

[00:06:43] Speaker 01:
Would Scottish law look to Jersey law?

[00:06:44] Speaker 03:
So we can still look to Scottish law and under Scottish law

[00:06:49] Speaker 03:
under Scottish law and under the Hague Convention, which is looking at whether or not the father was accessing, or had a veto on removal, under the Hague Convention, that is a right of custody.

[00:07:01] Speaker 01:
What would give him a right of removal?

[00:07:03] Speaker 01:
The Hague Convention gives him that?

[00:07:05] Speaker 03:
Right, under Abbott v. Abbott, the Supreme Court's decision, it's called a nay exeate right, and it's essentially if the parent is exercising a right of veto on removal of the child, that is a right of custody under the Hague Convention.

[00:07:17] Speaker 01:
I thought that in that case the parents had agreed to that.

[00:07:23] Speaker 01:
That it was not conferred by law, but it was recognized because that's the way the parents had arranged their family.

[00:07:33] Speaker 03:
It's possible, but under law in this case, under the Scotland Act of 1995, there is as a matter of law a right of veto on removal.

[00:07:43] Speaker 01:
But ACN is not a Scottish citizen.

[00:07:47] Speaker 01:
It's worn in Jersey.

[00:07:48] Speaker 01:
So doesn't the recognition have to come from Jersey law?

[00:07:51] Speaker 01:
Now would Scottish law recognize Jersey law?

[00:07:53] Speaker 01:
Do we even know what Jersey law says on this?

[00:07:58] Speaker 03:
I'm happy to provide supplemental briefing on Jersey law.

[00:08:01] Speaker 01:
Yeah, I mean Lang was very, very careful in saying, I'm not going to weigh in on Jersey law.

[00:08:06] Speaker 01:
Here's what Scottish law provides.

[00:08:08] Speaker 01:
And he concluded that he could not show under Scottish law

[00:08:12] Speaker 01:
that Dr. Nisbet had custody rights in ACN.

[00:08:17] Speaker 01:
But it seems to me that that's a void in law, and therefore we have to look to something else, which I assume would be Jersey law, but I'm not sure.

[00:08:27] Speaker 01:
And it doesn't seem that anybody's addressed that.

[00:08:31] Speaker 03:
Again, I'm happy to provide more supplements for raising on Jersey law.

[00:08:34] Speaker 03:
But our position is that under Scottish law, the father would have a right of custody because he is recognized as a parent under Scottish law to the child.

[00:08:43] Speaker 03:
He's on the birth certificate.

[00:08:45] Speaker 03:
And so under Scottish law would have that right of custody pursuant to the Hague Convention.

[00:08:53] Speaker 03:
And just to go back to the grave risk, unless you have any further questions,

[00:08:58] Speaker 03:
We do want to emphasize the fact that it was the mother's burden to show that she could not go back to Scotland with the children.

[00:09:05] Speaker 03:
And the district court just assumed this without deciding and essentially shifted the burden of proof to the father to determine or come up with ameliorative measures for the mother without actually adequately addressing the mother's alleged unwillingness to return.

[00:09:19] Speaker 03:
And we believe that was legal error under the grave risk exception, which is exceptionally high, extreme, only used in extreme cases, not where here there's no evidence of future harm to the children for the temporary period of custody.

[00:09:34] Speaker 03:
And with that, I'd like to reserve the remainder of my time.

[00:09:36] Speaker 02:
Thank you.

[00:09:36] Speaker 02:
Very well.

[00:09:36] Speaker 02:
Thank you.

[00:09:44] Speaker 02:
Good morning.

[00:09:45] Speaker 04:
Good morning.

[00:09:46] Speaker 04:
May it please the Court and Council.

[00:09:47] Speaker 04:
My name is Katrina Seipel, and I represent Appellee Mother Spirit Bridger in this matter.

[00:09:52] Speaker 04:
This case is about a single mother who was trapped in a country due to both the COVID-19 pandemic and the course of relationship that she was in.

[00:09:59] Speaker 00:
Ms.

[00:10:00] Speaker 00:
Seppl, there's one point that I thought was totally missing in the analysis by the judge below, by Judge Emmergut, which was, I think it's uncontested that all the time that two years that the children were with a mother in Scotland,

[00:10:23] Speaker 00:
The financing of that stay was paid by Mr. Nisbet.

[00:10:29] Speaker 00:
That's correct.

[00:10:29] Speaker 00:
One hundred percent, right?

[00:10:31] Speaker 00:
She didn't work, she didn't have any private assets or anything.

[00:10:34] Speaker 00:
That was never mentioned as part of being a caregiver, and it seems to me that if somebody is paying for care, he's pretty much of a caregiver.

[00:10:46] Speaker 00:
Don't you think that was a failure to consider something in the totality of the circumstances, which was clear error?

[00:10:56] Speaker 04:
I don't, Your Honor, because I do believe that the district court considered that.

[00:11:00] Speaker 00:
So under Monatski, the district court determined that based off of the totality of the circumstances, including this financial aspect, it played into... Could you point out to me where in the district court's opinion the district court recognizes that the father is paying the freight?

[00:11:19] Speaker 04:
I believe in the district court's written opinion, it includes an analysis of how mother is stuck in this country with the children, how not only that she's coerced into remaining there, but also... How long had she been stuck in Scotland?

[00:11:35] Speaker 01:
It was a little over... How long has she been living there?

[00:11:37] Speaker 04:
It was a little over two years, Your Honor.

[00:11:39] Speaker 01:
No, that's not true.

[00:11:40] Speaker 01:
When did she first move to Scotland?

[00:11:42] Speaker 04:
In 2019.

[00:11:43] Speaker 01:
No, 2013.

[00:11:47] Speaker 01:
She had been there for years before the children were born.

[00:11:51] Speaker 04:
So Your Honor, she lived in Scotland in 2013, and then she was back in Jersey for an extended period of time.

[00:11:58] Speaker 01:
And during that period, she's not lived in the United States.

[00:12:01] Speaker 01:
She's either been with his parents in Jersey or in his apartment in Scotland since 2013.

[00:12:07] Speaker 04:
That's correct, Your Honor.

[00:12:09] Speaker 01:
And when children are born and they come back to Edinburgh with ACN and then KRN is born,

[00:12:15] Speaker 01:
They are returned to the same apartment where she and Dr. Nisbet lived for many years together.

[00:12:21] Speaker 01:
She's in the apartment.

[00:12:23] Speaker 01:
He is providing money.

[00:12:25] Speaker 01:
He is participating, what, by video once a day?

[00:12:27] Speaker 01:
An hour?

[00:12:29] Speaker 04:
About that, yes.

[00:12:30] Speaker 01:
Okay.

[00:12:30] Speaker 01:
And he's provided her with an enormous sum of money.

[00:12:32] Speaker 04:
That's correct.

[00:12:33] Speaker 01:
$180,000.

[00:12:34] Speaker 04:
That's correct.

[00:12:37] Speaker 01:
That feels like that's financial support.

[00:12:39] Speaker 01:
And to follow up on Judge Bea's question, that feels like that might have been worth mentioning by the district court in the totality of the circumstances.

[00:12:48] Speaker 04:
Understood.

[00:12:48] Speaker 01:
I didn't see any place where the district court referred to the financing.

[00:12:51] Speaker 04:
Understood, Your Honor.

[00:12:52] Speaker 04:
What is required by the district court, and what this court has to turn to, is whether the district court completed a Monaski-compliant analysis.

[00:13:00] Speaker 04:
And in its analysis, whether it's considerations, findings were clear error.

[00:13:05] Speaker 04:
Father has not shown that the district court's findings under Manaskey are clear error.

[00:13:10] Speaker 01:
Okay.

[00:13:10] Speaker 01:
Do you have a case?

[00:13:11] Speaker 01:
Do you have a case?

[00:13:12] Speaker 01:
What's the closest case that you can give us?

[00:13:13] Speaker 04:
I would say Smith out of the Fifth Circuit cited in my brief.

[00:13:18] Speaker 04:
I don't have the exact citation, but I can give it to you.

[00:13:21] Speaker 04:
In that case, the children were present in Argentina for more than two years, and the children's residence in Argentina was still not determined to be their habitual residence.

[00:13:31] Speaker 01:
And were the children born there?

[00:13:33] Speaker 04:
In Argentina, no.

[00:13:35] Speaker 01:
Okay, so they're not born there?

[00:13:36] Speaker 01:
Had the parents been living there before the children were born?

[00:13:40] Speaker 04:
Yes, I do believe that the parents had been living in Argentina.

[00:13:43] Speaker 04:
They then went to the United States, came back to Argentina.

[00:13:46] Speaker 02:
But I guess I have a question about the two years.

[00:13:50] Speaker 02:
I think in a vacuum, I think we see two years, I think in a vacuum, I think that's one thing.

[00:13:58] Speaker 02:
But what were the circumstances in this case where the children were there for two years?

[00:14:04] Speaker 02:
Because I thought it was that they had just moved back in 2019.

[00:14:08] Speaker 02:
And we're looking at the habitual residence of the children, right?

[00:14:12] Speaker 02:
So the children, for the first time, had been back in 2019.

[00:14:16] Speaker 02:
That was at the end of 2019.

[00:14:18] Speaker 02:
A second child was born, I believe, in February of 2020.

[00:14:23] Speaker 02:
And then what happened in March of 2020 where the world sort of stopped for a second and all borders essentially were closed?

[00:14:31] Speaker 02:
Wasn't that the case that happened?

[00:14:32] Speaker 04:
That's very correct, Your Honor.

[00:14:34] Speaker 04:
Yes, the COVID-19 pandemic happened.

[00:14:36] Speaker 04:
Mother intended to leave.

[00:14:38] Speaker 04:
And again, the district court found her credible that she intended to leave as soon as she had KRN.

[00:14:43] Speaker 04:
But then the COVID-19 pandemic happened, borders closed.

[00:14:46] Speaker 04:
She could not get out of the country, not to mention that KRN did not have a passport to leave the country.

[00:14:52] Speaker 04:
And so she was effectively stuck there.

[00:14:54] Speaker 02:
Well, there was another thing.

[00:14:56] Speaker 02:
Wasn't it also she testified about the fact that because Mr. Nisbet had killed his mother, because of that, she was still, at least she felt, under investigation.

[00:15:08] Speaker 02:
And she testified that she felt that she couldn't leave the country, correct?

[00:15:12] Speaker 04:
That's correct, Your Honor.

[00:15:14] Speaker 02:
So when we look at this, I think that the district court was looking at it from that perspective, don't you think?

[00:15:20] Speaker 04:
I do.

[00:15:21] Speaker 04:
I do believe that the district court properly applied the totality of the circumstances, looking at the coercion, the COVID-19 pandemic, the fact the baby didn't have a passport, the fact that mother was there.

[00:15:31] Speaker 01:
The baby did have a passport.

[00:15:33] Speaker 01:
The baby had a UK passport because she was a Scottish citizen.

[00:15:38] Speaker 01:
She didn't have a US passport.

[00:15:40] Speaker 04:
the baby did not have a way to leave the country based off of what is in the record.

[00:15:45] Speaker 01:
Right, but the reason that she didn't is because although her mother was a U.S.

[00:15:49] Speaker 01:
citizen and she was eligible for U.S.

[00:15:50] Speaker 01:
passport, she was born in Scotland, lived the first two and a half years of her life in Scotland in an apartment owned by her father that was being paid for by her father where she had regular contact with him by Skype.

[00:16:03] Speaker 01:
That was the only kind of contact he could have.

[00:16:06] Speaker 01:
It was an apartment her mother had lived in since 2013.

[00:16:10] Speaker 01:
And the district court concludes that there is no habitual residents, that these are nomadic people.

[00:16:15] Speaker 04:
The question that the district court had to ask was whether the children's presence in Scotland had the quality of being habitual.

[00:16:23] Speaker 01:
And because these children... Where else could they possibly have lived?

[00:16:27] Speaker 04:
There is no other country at play, Your Honor.

[00:16:29] Speaker 01:
And so these are kids without a home?

[00:16:32] Speaker 04:
Yes, the children would say that their home.

[00:16:35] Speaker 04:
Does that make any sense to you?

[00:16:37] Speaker 04:
It does.

[00:16:37] Speaker 04:
The children's home is with their mother.

[00:16:40] Speaker 04:
And where these children are too young to acclimatize to their surroundings, Monaski specifically states that when that situation happens, when these children are too young to acclimatize to their surroundings, the district court should consider the circumstances and intentions of the caregiving parent.

[00:16:56] Speaker 04:
And that is exactly what the district court did here.

[00:16:58] Speaker 04:
Completed the Monaski compliant analysis and it's.

[00:17:01] Speaker 01:
How long did Bridger wait before going to the United States after she obtained KRN's passport?

[00:17:08] Speaker 04:
She obtained father's signature on the passport paperwork.

[00:17:11] Speaker 04:
She received the passport approximately six months later, and I believe she testified at trial that's in the record that it was about a month following actually obtaining the passport that she was able to get out of the country.

[00:17:23] Speaker 01:
She had family that came and visited her in Scotland?

[00:17:25] Speaker 04:
That's correct, Your Honor.

[00:17:26] Speaker 01:
Her mother came and visited her?

[00:17:27] Speaker 04:
That's correct.

[00:17:28] Speaker 01:
So the children's grandmother came and saw the kids in Scotland?

[00:17:31] Speaker 01:
Yes, Your Honor.

[00:17:32] Speaker 01:
Yes, Your Honor.

[00:17:33] Speaker 04:
Turning to Father's second assignment of error, he claims that the district cared and holding that the children would be subject to a grave risk of physical or psychological harm if they returned under Article 13.

[00:17:43] Speaker 04:
Now notably, the district court made two findings regarding Article 13.

[00:17:46] Speaker 04:
Not only that the children would be subject to a grave risk of physical or psychological harm, but also that they would be subject to an intolerable situation on its very face if they were returned because Father is incarcerated.

[00:17:59] Speaker 04:
Now, notably, it was not clear to me that Father has appealed this finding regarding an intolerable situation.

[00:18:06] Speaker 04:
He has appealed only the grave risk of harm.

[00:18:08] Speaker 04:
So turning to that father claims the district court expanded the narrow scope of this exception because there was no evidence of him directly physically or psychologically abusing the children.

[00:18:19] Speaker 04:
Now we aren't disputing that this isn't a case of father laying hands on his children.

[00:18:23] Speaker 04:
He was incarcerated.

[00:18:24] Speaker 04:
He's seen his children in person maybe three times in a controlled setting.

[00:18:29] Speaker 04:
So of course that's not what this case is about.

[00:18:31] Speaker 04:
This case is about, in the unlikely circumstance, that father is released from custody, and these children are returned to his care of manipulation, coercion, control, aggression, and violence.

[00:18:43] Speaker 01:
This is a huge leap of faith.

[00:18:46] Speaker 01:
The Hague Convention is a forum selection clause.

[00:18:49] Speaker 01:
And this all assumes that he is going to prevail in the Scottish courts, and yet all the Hague Convention is going to tell us is what court has primary jurisdiction over this.

[00:19:00] Speaker 01:
That would be the Scottish courts, and there's just no guarantee whatsoever that the Scottish courts will be so foolish as to turn these kids back over to their father.

[00:19:08] Speaker 01:
They may give him some kind of limited visitation rights, maybe supervised rights.

[00:19:12] Speaker 01:
But that would be for the Scottish courts to determine.

[00:19:14] Speaker 01:
So why are we jumping all the way to the grave risk?

[00:19:17] Speaker 01:
Because I thought the courts had said that the grave risk is the grave risk if they are returned for the purpose of the judicial proceedings.

[00:19:25] Speaker 01:
And he's institutionalized.

[00:19:26] Speaker 01:
There is no risk to his children.

[00:19:29] Speaker 04:
That's correct, Your Honor.

[00:19:30] Speaker 04:
The district court considered, in the unlikely event that father is released, this is where grave risk comes into play.

[00:19:38] Speaker 01:
Now, turning back to that... Right, right, but he's... Okay, but there's no evidence he's going to be released.

[00:19:43] Speaker 01:
And again, the grave risk is the grave risk to the kids.

[00:19:46] Speaker 01:
if they are returned to Scotland for the purposes of the judicial proceeding.

[00:19:51] Speaker 01:
And there doesn't appear to be anything in the record that would suggest that the kids will not be safe in Scotland during the pendency of court proceedings in whatever family court setting we have in Scotland.

[00:20:04] Speaker 01:
So where's the problem?

[00:20:06] Speaker 01:
Where's the risk?

[00:20:07] Speaker 04:
I will answer your question, Your Honor, and then I do believe I'm out of time.

[00:20:10] Speaker 04:
The risk is in part because mother cannot return your honors asked my opposing counsel here if there was anything in the And is that is she cannot return she cannot return she testified at trial that based off of her consultation with immigration lawyers She has no status and she cannot return and the district court found that credible Okay, where is that in the record?

[00:20:33] Speaker 04:
It is in her opinion, she writes, that mother cannot return.

[00:20:38] Speaker 04:
And I would be happy to submit a supplemental letter or briefing regarding the specific pages in the record of her testimony.

[00:20:47] Speaker 01:
And is that a relevant concern?

[00:20:50] Speaker 04:
It is, because the expert testified at trial, mother's expert testified at trial, how this plays into the analysis of how the children being taken from their only primary caregiver and returned to a country to the equivalent of a foster care system, how that could severely affect the children's development and psychological abilities.

[00:21:08] Speaker 01:
We found that to be irrelevant in the Cuellar case.

[00:21:12] Speaker 01:
That's the one where the father took the kids from Panama through Australia.

[00:21:16] Speaker 01:
And we said that we're not going to reward this kind of behavior by saying, well, the kids have now become acclimatized or dependent upon one parent and therefore going to be traumatized if they return to the other parent.

[00:21:31] Speaker 01:
Because that simply rewards everything that the Hague Convention is designed to prevent.

[00:21:35] Speaker 04:
Yes, I understand that, Your Honor.

[00:21:37] Speaker 04:
What I can say is that that was not the only consideration here.

[00:21:41] Speaker 04:
It wasn't the only consideration that Dr. Landon Poppleton testified to at trial, and it was not the only consideration that the district court considered.

[00:21:48] Speaker 04:
And because Father has not shown that the district court's considerations, findings, and holdings are clear error, this court should affirm.

[00:21:56] Speaker 02:
Thank you.

[00:21:57] Speaker 02:
Any additional questions?

[00:22:00] Speaker 02:
No.

[00:22:00] Speaker 02:
All right, thank you.

[00:22:01] Speaker 02:
Thank you.

[00:22:04] Speaker 02:
And if we could increase her time to two minutes, we went a little over on the other side, so go ahead.

[00:22:10] Speaker 03:
Thank you, Your Honor.

[00:22:11] Speaker 03:
Just two quick points on rebuttal.

[00:22:13] Speaker 03:
To start, on this point about the mother not being able to return, the district court in its finding essentially skipped that step and just assumed and accepted the mother's self-serving testimony that she couldn't go back without adequately addressing whether or not that was true.

[00:22:30] Speaker 02:
You concede that the district court, though, found that she could not leave, though?

[00:22:37] Speaker 03:
No, Your Honor, I don't concede that.

[00:22:38] Speaker 03:
Concede leaving the country, Scotland?

[00:22:41] Speaker 02:
You concede that she testified that she couldn't leave and that the judge accepted that?

[00:22:45] Speaker 03:
No, I don't concede that.

[00:22:47] Speaker 03:
I don't see that anywhere in the record.

[00:22:49] Speaker 03:
And in doing so, the district court shifted this burden of proof to the father when it should have been on the mother to show that she couldn't go back.

[00:22:57] Speaker 03:
She didn't submit any evidence.

[00:22:59] Speaker 03:
And because the children have United Kingdom citizenship, she would be able to... There is a way for him to get out though, correct?

[00:23:06] Speaker 03:
There is, yes.

[00:23:07] Speaker 02:
Okay.

[00:23:07] Speaker 02:
And in fact, he petitioned and it was denied about a year ago, correct?

[00:23:12] Speaker 02:
Yes.

[00:23:12] Speaker 02:
Okay.

[00:23:12] Speaker 02:
But presumably he's going to petition again.

[00:23:15] Speaker 03:
Presumably, yes.

[00:23:16] Speaker 02:
So there is a possibility that this man is going to get out, correct?

[00:23:20] Speaker 03:
Yes.

[00:23:21] Speaker 03:
But under the Hague Convention, this court needs to be deferential to Scottish courts in assuming that they can provide protection to the mother and children upon their return to determine custody during that limited period.

[00:23:32] Speaker 03:
On my second point, back to the habitual residence finding, and I'll be quick because I'm almost out of time.

[00:23:39] Speaker 03:
This, in trying to find the best case, this is entirely unprecedented.

[00:23:43] Speaker 03:
There is no decision where outside of infancy, there's been a finding of no habitual... Can you distinguish Smith then?

[00:23:50] Speaker 03:
Yes, Smith was not a finding of no habitual residency.

[00:23:53] Speaker 03:
It was a finding of whether or not they were habitually resident in the United States or in Australia, I believe.

[00:23:59] Speaker 03:
And this makes sense because under the Hay Convention policy, to find no habitual residence takes them entirely outside of the Hay Convention's protections.

[00:24:09] Speaker 03:
Thank you, Your Honors.

[00:24:10] Speaker 02:
Thank you.

[00:24:14] Speaker 02:
The case of Nisbet versus Bridger will be submitted.

[00:24:16] Speaker 02:
I appreciate the arguments today.

[00:24:18] Speaker 02:
Thank you.