Issues
When the court is deciding to return a child to their habitual residence after the child was taken to the US against parental custody rights, should the court consider measures that may make the situation safer after a definitive finding that the child is at risk of grave danger if returned?
This case asks the Supreme Court to determine whether, under the Hague Convention, a court may consider ameliorative measures, such as protective orders or custody determinations, to prevent grave danger to a child when ordering a child back to their home country. The Hague Convention requires that children abducted in violation of parental custody rights must be returned to their country of habitual residence. Narkis Golan, a United States citizen living in Italy, brought her Italian-born child to the United States, and did not return to Italy because she was a victim of domestic abuse by her Italian husband, Isaac Saada. Saada then sued Golan under the Hague Convention. Golan claims that her case falls under an exception within the Hague Convention that stops the return of the child if there is risk that the child will be in grave danger. While the lower court found sufficient ameliorative measures to prevent potential danger and granted Saada’s petition, Golan argues that the ameliorative measures are counter to the goals of the Hague Convention and should not be required or considered, especially where there is domestic violence. Saada responds that ameliorative rights must be considered to fairly assess the child’s return to their habitual residence. The outcome of this case could affect the safety of children, Hague Convention proceedings, and cooperation between foreign nations.
Questions as Framed for the Court by the Parties
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.
Facts
In August 2015, Narkis Golan (“Golan”), a United States citizen, married Isacco Saada (“Saada”), an Italian citizen, in Milan, Italy. Saada v. Golan II, at 3. In June 2016, Golan gave birth to her and Saada’s son, B.A.S., in Milan. Saada v. Golan I, at 6. Saada physically and mentally abused Golan for most of their relationship. Id. Among other incidents, the District Court found that Saada threatened to kill Golan, pulled her hair, threw a glass bottle at her, called her names and would often abuse Golan in front of B.A.S. Id. at 6–7.
In July 2018, Golan came to the United States with B.A.S. for a wedding. Id. at 7. Instead of returning to Italy after the wedding, Golan remained in the United States with B.A.S. and lived in a New York domestic violence shelter. Id. A few months later, Saada began several proceedings against Golan, including a Hague Convention petition to bring B.A.S. back to Italy. Id at 6.
The Hague Convention on the Civil Aspects of International Child Abduction is part of the International Child Abduction Remedies Act. Id. at 4. The Convention addresses custody issues and requires that, “a child abducted in violation of rights of custody must be returned to the child’s country of habitual residence, unless certain exceptions apply.” Id. at 4. Habitual residence refers to a child’s domicile, or the place they consider home. 8 CFR § 204.303. Golan challenged the petition, arguing that Italy is not the habitual residence of B.A.S.. Saada v. Golan I at 8. Golan also argued that the “grave danger” exception should apply because returning B.A.S. to Italy posed a great risk of danger to B.A.S. Id.
In March 2019, a district court granted Saada’s petition and ordered the return of B.A.S. to Italy. Id. The court found that Italy was the habitual residence of B.A.S.; therefore, the Convention applies. Id. at 7. While the court also ruled that returning to Italy would pose a great risk of danger to B.A.S., the court determined that Saada could alleviate this great risk by keeping his distance from Golan, giving her money, and only seeing B.A.S. with Golan’s consent. Id. at 8–9. Therefore, Saada’s petition to return B.A.S. to Italy was granted.
Golan challenged Saada’s petition, and the Second Circuit sent the case back to the district court for further investigation of ameliorative measures. Id. at 19. The court made the decision to remand because the measures identified by the district court could not be completed before the return of B.A.S. to Italy; accordingly, there was no way to enforce the measures. Id. at 14. Thus, the Second Circuit directed the district court to determine if it could ensure performance of the proposed measures or if there were alternative measures. Id. at 15.
On second look, the district court directed the parties to obtain a protective order from an Italian Court. Saada v. Golan II, at 6. An Italian court issued an order to Saada that prohibited him from going to Golan’s residence, her place of work or B.A.S.’s school. Id. The order also gives Golan primary custody of B.A.S., allows Saada to visit B.A.S. only in neutral spaces under observation of Italian social services, and requires Saada to seek psychological counseling. Id. Additionally, the district court instructed Saada to pay Golan $150,000. Id. at 7. The district court found these protections to be sufficient and once again granted Saada’s petition. Id. Golan then appealed, and the Second Circuit held that the district court properly granted Saada’s petition. Id. at 12.
Thereafter, Golan filed a petition for certiorari on January 26, 2021 which the Supreme Court granted on December 10, 2021.
Analysis
STATUTORY INTERPRETATION OF THE HAGUE CONVENTION
Golan argues that the current Second Circuit precedent, requiring the court to look at ameliorative measures after it establishes there is grave risk to the child being exposed to danger, goes beyond the Hague Convention (“Convention”) as incorporated by Congress. Brief for Petitioner, at 20-21. According to Golan, the text of the Convention only requires the court to make a grave risk determination; once grave risk is found, the return requirement lifts and the court has the discretion to decide if the child should be returned. Id. at 21. Golan also contends that the International Child Abduction Remedies Act (“ICARA”) does not refer to any ameliorative measures as a means to negate grave risk. Id. at 23. Additionally, Golan argues the ameliorative measures inquiry goes against the Convention’s purpose. Id. Golan maintains that the purpose of the Convention is to protect the child’s interest, ensure a prompt return of children wrongfully removed, and uphold the rights of custody and access under the law. Id. at 24. Thus, Golan argues, the mandatory ameliorative measures conflict with the Convention’s purpose because they delays the prompt return of the child by trying to solve the underlying custody dispute. Id. at 24–25. According to Golan, Article 13(b) eliminates any preference for the child’s return once the grave risk has been found. Id. at 26.
Saada argues that the Second Circuit’s interpretation harmonizes grave-risk concerns with the Convention’s goal to return the child to their home country. Brief for Respondent, at 21. Saada argues that the grave risk exception is a “forward-looking inquiry” and requires consideration of all the facts and circumstances in which the child will return. Id. at 16. Saada contends that the circumstances before the child was removed are not more relevant than the circumstances that the child will face on return. Id. at 17. According to Saada, it is important and necessary for the court to consider ameliorative measures, such as custodial agreements or measures put in place in the child’s home country. Id. Saada cites to In re ICJ,, in which the Ninth Circuit found that ameliorative measures cannot be separated from the grave risk analysis. Id. Saada further argues that the Convention does not prohibit a child from being returned after grave risk is found, just that the courts are no longer bound to return the child. Id. According to Saada this is because the Convention’s drafters did not want the court to replace its value judgments on the child’s best interest. Id. at 26.
US GOVERNMENT AND INTERNATIONAL APPLICATION OF THE CONVENTION
Golan argues that the US State Department historically interprets the Convention as not addressing ameliorative measures or actively cautioning against considering them. Brief for Petitioner, at 28. Golan contends that the State Department had an opportunity to address ameliorative measures in a letter and legal memorandum to the British government, but instead advised avoiding such extensive undertakings. Id. at 29–30. Additionally, Golan argues that the State Department’s Office of Children’s Issues cautioned against discretional decisions that undermine the precepts of the Convention, and to only apply it narrowly to facilitate prompt return of the child. Id. at 30.
Golan also argues that other countries who are a part of the Convention (“signatories”) do not require ameliorative measures. Id. at 31. Golan contends that common-law countries permit, but do not require ameliorative measures, while civil-law jurisdictions do not recognize measures at all. Id. at 32. Golan argues that the only context in which ameliorative measures are mandated is in disputes between European Union members because the order of the court in one country is enforceable in another country in the Union. Id. at 33–34.
Saada argues that the United States has advocated for courts to apply a totality of the circumstances analysis for grave risk. Brief for Respondent, at 18. According to Saada, the United States has also admitted that this may require the court to take ameliorative measures into consideration. Id. at 19. Additionally, Saada argues that Congress, through 22 U.S.C. Sec. 9001(a)(4) which requires the grave-risk exception to remain narrow, requires the court to consider ameliorative measures. Id. at 16. Saada further argues that the letter to the British government only criticized ameliorative measures when the scope went beyond the child’s safety. Id. at 31. Saada also contends this is the first time the State Department has recommended not reviewing ameliorative measures. Id. at 30.
Saada cites the Hague Conference on Private International Law’s Guide to Good Practice, which states that courts should consider ameliorative measures in cases of grave danger. Id. at 32. Saada argues the United Kingdom’s Supreme Court requires United Kingdom courts to consider both the potential grave risk to the child and how the child could be protected from that risk. Id. at 33. Saada also contends that other courts within the Convention consider ameliorative measures, such as New Zealand. Id. at 34. Thus, with these examples taken together, Saada argues that protective measures are part of the court’s responsibility in determining the grave risk analysis. Id. at 32.
LIMITS ON DISCRETIONARY CONSIDERATION
Golan concedes that consideration of ameliorative measures is not forbidden, but argues that such consideration must be limited to easily identifiable and addressable measures that can be enforced by the court. Brief for Petitioner, at 35. Golan argues that domestic violence adds an extensive level of consideration with ameliorative measures because of its complex psychological issues. Id. at 36. According to Golan, in order for ameliorative measures to be effective, the court must spend too long understanding the other country’s legal system and methods of enforcement. Id. Additionally, Golan argues that courts of determination lack enforcement power to ensure their ameliorative measures are being followed, citing Danaipour v. McLarey in which the First Circuit reversed an ameliorative measure for a sexually abused child because the order would not be enforceable in Sweden. Id. at 37.
Golan further argues that the court must not decide issues related to custody determination. Id. According to Golan, the State Department has stated the courts must leave all custody disputes to the courts of the country of habitual residence. Id. at 39. Golan argues that cases with domestic violence will include custody determinations, and ameliorative measures could easily address underlying custody disputes. Id.
Saada argues that the courts are limited by sound legal principles and reasoned decisions consistent with the objectives of the Convention. Brief for Respondent, at 18. Further, Saada argues that cases that involve domestic violence will not slow down the proceedings because the court will already be hearing evidence of the abuse and its effects in the grave-risk assessment. Id. at 22. Saada cites Sabogal v. Velarde, where the court was able to assess grave risk, implement ameliorative measures, and issue a return order in six months. Id. at 22-23. Additionally, Saada argues against Golan’s claim that ameliorative measures should not be applied to cases with domestic violence because the U.S. courts must respect other countries’ authority. Id. at 27. Thus, Saada contends that not assessing ameliorative measures shows a distrust of other courts, which weakens the Convention and the return of wrongfully removed children. Id.
Saada contends that the duty to consider ameliorative measures is not outcome-determinative on custody-related issues. Id. at 23. Although Saada contends that there are some overlaps, he argues that custody rights do not determine if a child can be safely returned. Id. at 24. Saada also argues that ameliorative measures do not only refer to custody-related issues but also include existing structures and assistance outside the scope of the custody dispute. Id. at 25.
Discussion
PROTECTION OF CHILDREN
Child Justice Inc. et al. (“Child Justice Inc.”), in support of Golan, argues that the central purpose of the Hague Convention is to ensure the best interests of children. Brief of Amici Curiae Child Justice, Inc. et al., in Support of Petitioner, at 4. Child Justice Inc. explains that considering ameliorative measures ignores the realities of domestic violence and frustrates the goal of the Convention. Id. at 7. Hague Convention Delegates, in support of Golan, echoes this argument, asserting that requiring ameliorative measures prioritizes concerns of the “left-behind parent” over the child. Brief of Amici Curiae Hague Convention Delegates, in Support of Petitioner, at 13. Moreover, Child Justice Inc. notes that ameliorative measures are often ineffective because they do not account for the trauma of witnessing abuse and the effects of coercive control. Brief of Child Justice, Inc. et al. at 13–15. Domestic Violence Survivors adds that abusers often abuse again and, as such, ameliorative measures do not protect against long term psychological and physical damage. Brief of Amici Curiae Domestic Violence Survivors, in Support of Petitioner, at 15–16.
Child Abduction Lawyers Association (“CALA”), in support of Saada, notes that ensuring children are returned to their country of habitual residence allows the proper court, a court in the child’s habitual residence, to handle custody disputes. Brief of Amicus Curiae CALA, in Support of Respondent at 14. CALA also highlights that courts have discretion to evaluate the efficacy of foreign courts and determine whether they can enforce ameliorative measures. Id. at 26–27. Additionally, International Academy of Family Lawyers (“IAFL”) asserts that any worry that ameliorative measures are not enforceable can be fixed by making return orders conditional upon completion of the measures. Brief of IAFL as Amicus Curiae, in Support of Respondent, at 13. Professors of Law maintain that regulations and international treaties have found that ameliorative measures are successful in protecting children from any harm upon returning to their habitual residence. Brief of Amici Curiae Professors of Law, in Support of Respondent at 13.
COURT PROCEDURE AND INTERNATIONAL COOPERATION
Italian Organizations Advocating for Victims of Domestic Violence (“IOAVDV”), in support of Golan, explains that attitudes regarding domestic violence vary by country; accordingly, information on the efficacy of other countries’ protection procedures is difficult to obtain and may be incomplete. Brief of Amici Curiae IOAVDV, in Support of Petitioner, at 11–13. Former Judges fear that federal district courts, who hear Convention cases, are inexperienced with family law and do not have the resources to properly resolve domestic issues. Brief of Amici Curiae Former Judges, in Support of Petitioner, at 13–16. Former Judges also assert that determining ameliorative measures is time consuming and ruins the benefits of the Convention’s expedited process. Id. at 19. Frederick K. Cox International Law Center (“Cox”) also argues that the ameliorative measures requirement holds children in “legal limbo” by forcing courts to spend time considering different protection options. Brief of Amicus Curiae Cox, in Support of Petitioner, at 13. Additionally, Cox fears that the ameliorative measures requirement diminishes international cooperation by allowing countries to criticize one another. Id. at 16.
CALA, in Support of Saada, maintains that the delay caused by consideration of ameliorative measures promotes the purpose of the Convention. Brief of CALA at 19. Further, CALA notes that ameliorative measures can be introduced early in the proceedings to diminish any possible delay. Id. at 20. IAFL argues that respecting other courts ensures the Convention functions well by allowing each country to decide what the best interests of their children are. Brief of IAFL at 9. If courts do not respect each other’s decision, IALF explains, there will not be uniform application of the Convention and the future cooperation of different nations will be threatened. Id. at 10. Professors of Law maintain that ameliorative measures ensure states are playing an appropriate role in the return process. Brief of Professors of Law at 21. Any factual disagreement, Professors of Law adds, should be handled by the country of habitual residence. Id. at 21–22.
Conclusion
Additional Resources
- Dan Schweitzer, Supreme Court Report: Golan v. Saada, 20-1034, The National Association of Attorney Generals, (December 21, 2021).
- Shannon Luschen, Ameliorative Measures: The Fate of Saada v. Golan, At the Bar: The Chicago Bar Association, (September 15, 2021).