For the casual observer, the question regarding this case might be: "What's the big deal?"
Simply put, Timothy and Jacqueline's private lives will likely have a great impact of international proportions. But what is the problem? Wouldn't most people tend to agree that, at first glance, someone who abducts a child is a bad person and the law should punish that person?
However, you'll see, the concept of "child abduction" is often much less cut-and-dry than one might imagine. It isn't always so easy to decide who is the Good Guy and who is the Bad Guy. "Abduction" is a term that sometimes may be too harsh for sensitive personal situations that include less than clear-cut determinative facts. This case is a prime example of a blurry situation.
Is this a case of a mother, hell bent on depriving a father of any contact with his beloved son? If so, then most would agree that the U.S. Supreme Court should send A.J. back to Chile because his "bad" mother violated a legitimate Chilean court order and law.
Or, is this the case of a nationalist Chilean legal system essentially trapping almost all children and mothers within their borders? That is, by including a ne exeat provision in the Chilean Civil Code, does Chile prevent a mother from moving on with her life and returning to her home country? Does the law force her to make the impossible choice of pursuing her happiness or remaining in Chile with her son?
If so, how far does this principle extend? Could, for example, a law that requires both parents' consent or that limits a child's residence (e.g., child not allowed to live with a particular relative) within a country count as "rights of custody?" If so, would a situation involving an abused mother (but NOT an abused child--thus arguably not entitled to a 13(b) exception) be trapped in Chile too?
What's more is that this case has subtle nuances. For example, we have no clear Good Guy and Bad Guy because, unlike most family law court opinions, one has a very hard time finding any dramatic he said, she said facts that surround the case. Also, the nationalist ties are relatively weak--Timothy is British, Jacqueline is American, and A.J. was born in Hawaii. Thus, we don't have a situation where the child is being divorced from his "cultural" heritage.
Thus, the Court must decide this case, devoid of the free radicals that can make a case easier to decide on equity, on a higher policy level, this case has huge impacts on private international law. First, this issue is up in the air among sister signatories' court opinions (despite the Hague Conference's overly bold assertion that a majority of courts include a ne exeat order as a right of custody). England says it one way, Canada say it another. Australia has legislated around it, as has the EU (see Regulation 2201/2003). South Africa has answered the question tangentially, and Austria and France can't seem to make their minds up. So, when the Supreme decides this one, it will likely carry heavy weight on the international stage.
Second, how should a court interpret a treaty? Will strict textualism provide justice? Should a court borrow from other legal systems? Can a court rely on a few statements from treaty negotiations?
Finally, the case involves fundamental questions about private international law. Can truly autonomous treaty definitions exist? How much should a court look to foreign courts? How does such a fragmented area of law get resolved consistently? Should an executive branch interpret a law at the time of signing or at the present? How confident can a signatory be about signing a document whose definitions will change over time? What other ways can countries efficiently collaborate an an important and evolving issue?
Thus, this case is quite important and this blog will look eagerly to the oral argument tomorrow.