This Report summarizes an opinion issued on December 10, 2021 (Part I); and cases granted review on December 10 and 15, 2021 (Part II).
Cases Granted Review: Golan v. Saada, 20-1034
Golan v. Saada, 20-1034. “The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.”
Petitioner Narkis Golan, a United States citizen, married respondent Isacco Jacky Saada, an Italian citizen, in 2015. They have one child, B.A.S., who was born in Italy in June 2016 and is a dual citizen of the United States and Italy. When Mr. Saada and Ms. Golan lived in Italy, Mr. Saada physically and emotionally abused Ms. Golan on a regular basis. In July 2018, Ms. Golan and B.A.S. traveled to New York for Ms. Golan’s brother’s wedding. While she was away, Mr. Saada made multiple threats to her life, and threatened to take B.A.S. away upon her return. Fearing for her life and B.A.S.’s safety, Ms. Golan remained in the United States and entered into a domestic violence shelter. In September 2018, Mr. Saada filed a petition in the district court for the return of B.A.S. The district court concluded that Ms. Golan had met her burden of demonstrating, by clear and convincing evidence, that “returning [B.A.S.] to Italy would subject [him] to a grave risk of harm.” Despite its grave risk finding, the district court ordered that B.A.S. be returned to Italy subject to a series of ten undertakings by Mr. Saada that would ameliorate the risk. The Second Circuit affirmed in part and reversed in part, remanding so that the district court could impose stronger ameliorative measures. On remand, the district court did that, ordering the parties to seek a protective order from the Italian court overseeing the parties’ custody dispute. The parties complied, and the Italian court issued an order, to become effective if Ms. Golan enters Italy, that includes: (1) a protective order requiring that Mr. Saada stay away from B.A.S. and Ms. Golan; (2) an order requiring that Mr. Saada’s visitation with B.A.S. be supervised; and (3) an order directing Italian social services to oversee Mr. Saada’s parenting classes and behavioral and psychoeducational therapy. The district court then ordered that B.A.S. be returned to Italy. The Second Circuit affirmed in a summary order.
Ms. Golan argues that the Second Circuit decision “implicates a conflict among the federal courts of appeals—as well as various state courts—as to whether, after a finding that there is a grave risk that the return of a child would expose him or her to physical or psychological harm, a trial court must nevertheless consider possible ameliorative measures to facilitate the return of the child.” On the merits, Ms. Golan argues that “[t]he requirement that a court consider ameliorative measures finds no support within the text of the Hague Convention.” “Rather,” she says, “it is ‘a judicial construct, developed in the context of British family law.’” Ms. Golan adds that, “[a]s a matter of policy, protective measures should not be a required element of a court’s grave-risk analysis because such measures often fail.” And she maintains that “[t]he purpose and history of the Hague Convention indicate that consideration of undertakings is inappropriate, particularly in grave risk cases involving domestic violence.” That is because the Convention’s primary concern is the protection of children. The United States filed an amicus brief at the invitation of the Court which agreed with Ms. Golan that “[t]he text of neither the Convention nor” the statute implementing it “mandates consideration of ameliorative measures.” Instead, “[a] discretionary approach to ameliorative measures accords with the longstanding view of the State Department, which finds support in international understandings of the convention.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]