Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 15, 2022 (Part I).
Opinion: Golan v. Saada, 20-1034
Golan v. Saada, 20-1034. The Court unanimously held that a district court is not required to examine all possible ameliorative measures before denying a petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act (ICARA), generally requires a court to order the prompt return of a child who was wrongfully removed or retained from the child’s country of habitual residence. But the Convention provides that a court “is not bound to order the return of the child” if it finds a “grave risk” that return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” This case concerns Narkis Golan, a United States citizen who married Isacco Saada, an Italian citizen, and lived with him in Italy. The two had a child, B.A.S., in 2016. In 2018, Golan flew with B.A.S. to the United States to attend a wedding. Rather than return to Italy, she moved into a domestic violence shelter. Saada filed a criminal complaint in Italy and initiated a custody proceeding in the Italian courts. Saada also filed a petition in the United States under the Hague Convention seeking an order to return B.A.S. to Italy. The district court granted the petition after determining that Italy was the child’s habitual home and Golan wrongfully kept him in the United States. The court found that returning to Italy would expose the child to a grave risk of harm because Saada was often abusive to Golan in front of him, but the court applied Second Circuit precedent requiring district courts to “examine the full range of options that might make possible the safe return of a child to the home country,” including measures that will ameliorate the risk of harm to the child. The district court found that Saada’s proposed ameliorative measures sufficiently reduced that risk. The Second Circuit found the proposed ameliorative measures insufficient to mitigate the risk to the child. On remand, the district court conducted an “extensive examination” of the measures available, and the Italian courts overseeing the custody dispute issued a protective order barring Saada from approaching Golan for one year. The Italian courts also ordered Italian social services to oversee Saada’s parenting classes and therapy. The district court again ordered the return of B.A.S. to Italy, and the Second Circuit affirmed, finding these measures sufficient. In an opinion by Justice Sotomayor, the Court vacated and remanded, holding that the Second Circuit rule “improperly weight[s] the scales in favor of return.”
The Court found that by providing that a court “is not bound” to return the child upon a finding of risk, the Hague Convention gives courts discretion to grant or deny return. Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures when exercising that discretion. The Court rejected Saada’s argument that consideration of ameliorative measures is an inherent part of determining whether a grave risk exists, although district courts may find it appropriate to consider both questions. “The fact that a court may consider ameliorative measures concurrent with the grave-risk determination, however, does not mean that the Convention imposes a categorical requirement on a court to consider any or all ameliorative measures before denying return once it finds that a grave risk exists.” The Court recognized that some signatory countries require the consideration of ameliorative measures, but the Convention itself leaves that decision to each country, and Congress has chosen not to require such consideration.
The Court explained that the Convention and ICARA give courts discretion, but the Second Circuit’s rule effectively “rewrites the treaty by imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising this discretion, regardless of whether such consideration is consistent with the Convention’s objective (and, seemingly, regardless of whether the parties offered them for the court’s consideration in the first place).” Discretion is not a “whim,” however, and courts must exercise their discretion as guided by sound legal principles. “While a district court has no obligation to consider ameliorative measures that have not been raised by the parties, it ordinarily should address measures that have been raised or that are obviously suggested by the circumstances of the case.” Any consideration of ameliorative measures must be guided by the legal principles in the Convention and ICARA. By demanding return of the child “if at all possible,” found the Court, the Second Circuit’s rule improperly elevated return above the Convention’s other objectives, which constrain courts in at least three ways. First, any consideration of ameliorative measures “must prioritize the child’s physical and psychological safety.” Second, ameliorative measures should be limited in time and scope to avoid usurping the role of the foreign court, which will adjudicate the underlying custody dispute. Third, the court must act “expeditiously.” The Court concluded that a remand was appropriate in this case because it was impossible to know how the district court would have exercised its discretion to order B.A.S.’s return absent the Second Circuit’s rule.