Lawyers, academics, politicians, students and of course litigants are naturally concerned, often vitally concerned, to know how the final appellate court of the land will decide a given matter. Depending on the outcome, the law might be changed in new and radical ways; legislation might be struck down; government policy might fall.

The wait to discover what is going to happen can be very long because, as we all know, it can be a year or more between the hearing of an appeal and the delivery of judgment in a given case. There is, however, a vital source of clues to the possible outcome of a case, to the thinking of the court and the arguments which they find persuasive, or not, that is often overlooked. I mean of course the transcripts of argument made during the oral hearing, which includes questions and comments from the bench.

As an example of the usefulness of these, take the case of Abbott v. Abbott, recently heard by the US Supreme Court. The Court heard argument about the meaning of “habitual residence” in the Hague Child Abduction Convention. The phrase is not defined, and counsel took the Court to decisions of courts of other countries, also signatory to the Convention. Have a look at the following extract, which includes submissions by counsel and exchanges with the bench, noting that in this instance at least, Justice Scalia seems quite willing to consider the application of foreign court decisions:

JUSTICE SCALIA: Most courts in countries signatory of the treaty have come out the other way and agree that a ne exeat right is a right of custody, and those courts include the U.K., France, Germany, I believe Canada, very few come out the way you — how many come out your way?

MR. HAYS: The United States and Canada -as we point out in our brief, and I believe that it’s pointed out in other amicus briefs, the — there have only been seven courts of last resort that have heard this issue. There are some 81 countries that belong -

JUSTICE SCALIA: Yes, but, still, in all, I mean, they include some biggies, like the House of Lords, right? And — and the purpose of a treaty is to have everybody doing the same thing, and — and I think, we — if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in — in other countries that are signatories to the treaty.

MR. HAYS: If, in fact, there were a consensus, but there — there is not a consensus in this instance because we — as we analyze in our brief and I believe the 11 law professors analyzed in their brief, you cannot get a clear consensus.

JUSTICE BREYER: Who’s against it? As I read their brief, France is not on their side. It’s split.

MR. HAYS: Yes.

JUSTICE BREYER: Canada is on your side; that the House of Lords is — has some dicta written by two judges, which is good, but it wasn’t a holding in the case.

MR. HAYS: Correct.

JUSTICE BREYER: And — and that’s about it, and so maybe they -

JUSTICE GINSBURG: You have — you have -

JUSTICE SCALIA: Germany.

JUSTICE BREYER: Germany.

JUSTICE GINSBURG: Elizabeth Butler-Sloss in the Court of Appeals in England, and that was a square holding.

MR. HAYS: That was — there — there have been — that is one instance. However, you also have the situation of the — the Canadian opinions which are well-reasoned opinions -

JUSTICE GINSBURG: Which are dicta.

MR. HAYS: Which, actually, even though -even though they did not return the child based on the — on the ground, they still made the — the decision, and the second case that followed -

JUSTICE GINSBURG: All right. Well, you can take the German constitutional court.

MR. HAYS: Well, the German constitutional court in that instance, their specific reference in the case itself to the fact that this involved also joint custody rights, as do — as do a number of the other foreign — of the other foreign cases. Ireland, also, is one that is cited by Mr. Abbott, and that one involved a situation of joint parental responsibility.

JUSTICE BREYER: Who do you count for you of the seven, just so I can write it down and go back and read them? Any one of the seven for you?

MR. HAYS: Yes.

JUSTICE BREYER: Which?

MR. HAYS: The circuit courts in the United States.

JUSTICE BREYER: Okay. Any other for you?

MR. HAYS: And Canada.

JUSTICE BREYER: Canada. Okay. And who’s against you?

MR. HAYS: The — well, France is divided. France -

JUSTICE BREYER: No. I asked who is against you.

MR. HAYS: Against us, it’s — other than -other than the dicta that is — that is pointed out in the English opinions, we take the position that the other ones, it’s unclear as to — as to how you –

JUSTICE BREYER: You think one against you, one for you, the rest unclear?

MR. HAYS: Unclear.

JUSTICE BREYER: Okay.

JUSTICE SCALIA: Is Australia — is Australia unclear?

MR. HAYS: Yes. I — the — the Australian case dealt, again, with a — with a joint custody situation, and in that — in that particular case, I believe — if I am correct in my recollection of it -the Australian court expressed some reservation about making a bright-line rule that these type of ne exeat clauses actually established -

JUSTICE SCALIA: Well, according to the Petitioner’s brief, if this is inaccurate, the Australian court followed the English Court of Appeals decision that Justice Ginsburg referred to, emphasizing the desirability of uniform interpretations of the convention, and I count that against you, the Australia.

MR. HAYS: The — the point that we are making, however, is that, if you have a one or two or even three countries that have gone one way and then you have other countries that have gone the other way, that there’s not a clear-cut overwhelming majority of the other jurisdictions that have ruled in favor of establishing ne exeat orders, and -

JUSTICE SCALIA: We will have to parse them out, obviously. ………..

This extract from the transcript, from the horse’s mouth so to speak, shows clearly that the Court is concerned to look to decisions of other countries in their interpretation of “habitual residence”, and that Justice Scalia, perhaps, is concerned particularly with the attitude of “the biggies”, and that they will have to “parse them out”. A researcher therefore might take these clues, parse out the attitude of “the biggies” herself, and arrive at an educated guess as to the likely outcome. 

Like Justice Scalia, a researcher from a common law jurisdiction will likely be interested, in such a matter, in finding transcripts from the final appellate courts of the biggies – the US, UK, Canada, Australia and New Zealand. Can you?The answer is a little surprising:

•  United States:   The US is easy. They’re at the Court’s website, from 2000 on.

• Australia:   Australia is fantastically well served. Transcripts from the High Court of Australia have been posted very quickly on AustLII since 1994. Decisions from the Supreme Court of New Zealand are available at the Court’s web-site from 2004 on.

• Canada:   Canada is less easy. Transcripts from the Supreme Court of Canada are available, but you have to contact the Court and make a request. When the transcript is ready, which can take two weeks or more (presumably because of the need to translate into French), it will be emailed after payment of a small fee, which can be made over the phone with a credit card.

• United Kingdom:   Of the biggies, only the Supreme Court of the UK (which replaced the House of Lords last October), does not make transcripts available in any form, although hearings are filmed and footage is archived.