The Supreme Court of the United States ruled on Wednesday in Golan v. Saada that a court need not consider all possible ameliorative measures before denying a child’s return to a foreign country under the Hague Convention once it has found that the return would pose a grave risk of harm.
Under the Hague Convention on the Civil Aspects of International Child Abduction, member countries are required to order a child returned to their home country if the child has been wrongfully removed or retained in another member country. However, the country may not be bound to order the return of the child if it finds that the return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” A court has discretion to determine whether this exception is met and will often consider whether any ameliorative measures by the parents or authorities of the state could reduce the risk.
Narkis Golan, a U.S. citizen, married Isacco Saada, an Italian citizen, in Italy, where they had a son in 2016. According to the Court, the couple’s relationship “was characterized by violence from the beginning.” Saada subjected Golan to both physical and psychological violence, once telling her family that he would kill her. Much of the abuse occurred in front of their son. In 2018, Golan brought her son with her to attend a wedding in the United States. Instead of returning to Italy as planned, she and her son moved into a domestic violence shelter.
Saada then filed a criminal complaint in Italy for kidnapping and initiated a civil proceeding seeking sole custody of the child. He also filed a petition under the Convention and ICARA in the U.S. District Court for the Eastern District of New York, which was granted, despite the court’s finding that the return would expose the child to a grave risk of harm. Even though the court found that evidence of physical, psychological, emotional, and verbal violence was undisputed and that the child had been exposed to most of it, the court ordered the return based on Second Circuit precedent.
The Second Circuit had made the consideration of ameliorative measurements a requirement when deciding whether a child’s return to their home country would expose them to a grave risk of harm. Under its direction, district courts were bound to independently “examine the full range of options” even if the party petitioning for the child’s return had not identified or argued for the ameliorative measures.
Saada proposed that he would pay $30,000 for Golan’s expenses pending a support decision in Italy, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges, begin cognitive behavioral therapy, and waive his right to legal fees and expenses. The court found these measures and the fact that the parties would be living separately sufficient to order the return of the child.
On appeal, the Second Circuit vacated the order and remanded it to the District Court, finding that these measures were insufficient to mitigate the risk, but concluding that the record was insufficient to determine whether no protective measures would be sufficient. The District Court spent nine months developing a new slate of ameliorative measures, including a protective order issued by an Italian court, which the Second Circuit then affirmed.
On Wednesday, the U.S. Supreme Court rejected the Second Circuit’s interpretation of the Convention, noting that the fact that ameliorative measures may be considered concurrently with the grave risk of harm does not mean that the Convention makes consideration of ameliorative measures mandatory. It found that while a court may consider ameliorative measures, it could reasonably decline such considerations if they have not been raised by the parties, are unworkable, involve determinations more properly reserved for custody proceedings, or would overly prolong the return proceedings. It is also possible, the Court noted, that the grave risk would be so unequivocal or the potential harm so severe, that no ameliorative measure would be satisfactory.
The Supreme Court remanded the case for the District Court to apply the proper legal standard and exercise its discretion in determining whether to order the return after finding grave risk.
Additional Reading
Golan v. Saada, 596 U.S. ___ (2022)
SCOTUS rules for US citizen who says return of her child to Italy poses grave risk of harm, ABA Journal (June 15, 2022)
Justices rule for American woman in bitter custody dispute, AP News (June 15, 2022)
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