Golan v. Saada

by | Jul 23, 2022

In Golan v. Saada the Supreme Court ruled that a court is not required to examine all possible ameliorative measures before denying a Hague Convention 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.

Supreme Court of the United States, June 15, 2022

Domestic violence

The mother is a U.S. civilian and the father an Italian civilian. They married in Italy and had a son in 2015. There was domestic violence since the beginning of the relationship. They fought on a daily basis. The man, Saada, would sometimes push, slap and grab Golan and pull her hair. He yelled, he swore, he frequently insulted her and called her names, often in fron of other people. He once told her family that he would kill her. Much of the abuse occurred in front of the boy.

Golan went to the U.S. for a wedding together with the boy. She did not return, but in stead went to a domestic violence shelter. Saada filed a criminal complaint in Italy and asked the District Court for a return order.

Grave risk

The District Court determined that the boy’s habitual residence was in Italy and that he was wrongfully retained in the U.S. However, the court found that returning the boy to Italy would expose him to grave risk of harm. The court described some of the incidents that the boy had witnessed as ‘chilling’. Records indicated that Italian social services, who had been involved earlier, had also concluded that ‘the family situation entails a developmental danger’ for the boy. The court found that Saada had demonstrated no ‘capacity to change his behaviour’, explaining that Saada ‘minimized or tried to excuse his violent conduct’ during his testimony and that Saada’s ‘own expert said .. that (Saada) could not control his anger or take responsibility for his behaviour’.

Return order nonetheless

The court nonetheless ordered the boy’s return to Italy, based on Second Circuit precedent obligating it to ‘examine the full range of options that might make possible the safe return of a child to the home country’ before it could ‘deny repatriation on the ground that a grave risk of harm exists’. The Second Circuit based this rule on its view that the Convention requires return ‘if at all possible’ and quoted Blondin II.

To comply with these precedents, the District Court had required the parties to propose ‘ameliorative measures’ that could enable the boy’s safe return. Saada had proposed that he would provide Golan with $ 30,000 for expenses pending a decision in Italian court as to financial support, to stay away from her until the custody dispute was resolved, pursue dismissal of the criminal charges against her, begin cognitive behavioral therapy and waive any right to legal fees or expenses under the Convention. The court accepted his proposal and ordered the return of the boy to Italy. The court also ordered that the parties would live seperately.

‘Insufficient measures’

On Golan’s appeal the Second Circuit vacated the order, finding the District Court’s measures insufficient to mitigate the risk of harm to the boy. The Second Circuit remanded for the District Court to ‘consider whether there exist alternative ameliorative measures that are either enforceable by the District’s Court or supported by other sufficient guarantees of performance’.

Sufficient measures

Over the course of nine months the District Court conducted ‘an extensive examination of the measures available to ensure the boy’s safe return to Italy.´ This involved a.o. the parties petitioning the Italian courts for a protective order. The Italian court barred Saada from approachig Golan for a year and ordered that an Italian social services agency would oversee Saada’s parenting classes and therapy and that visits between Saada and the boy would be supervised. With these measures the District Court ordered the boy’s return to Italy. The court also ordered Saada to pay Golan $ 150,000 to facilitate the boy’s return to Italy and to cover Golan’s and the boy’s living costs while they resettled.

On Golan’s appeal the Second Circuit affirmed, concluding that the District Court did not clearly err in determining that Saada likely would comply with the Italian protective order, given his compliance with other court orders and the threat of enforcement by Italian authorities of its order.

Supreme Court

The Supreme Court follows the suggestion of the United States, as amicus curiae, to remand and allow the District Court to exercise its discretion in the first instance under the correct legal standard, which is, according to the Supreme Court as follows.

The text of the Convention

The text of the Convention nor the text of ICARA forbids or requires consideration of ameliorative measures in exercising the discretion that the court has to grant or deny return upon making a grave risk finding.

Saada argued that determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available. But the question whether there is a grave risk is separate from the question whether there are ameliorative measures that could mitigate that risk, eventhough they will often overlap considerably. See Simcox v. Simcox, explaining that the appropriateness and utility of ameliorative measures correlate with the gravity of the risk to the child. However, the court should ordinarily address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case.

Return order ‘if at all possible’?

The Second Circuit’s rule, by instructing courts to order return ‘if at all possible’, improperly elevated return above the Convention’s other objectives. The Convention does not pursue return exclusively or at all costs. Rather, the Convention ‘is designed to protect the interests of children and their parents´ (Lozano), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways.

1 : Safety is the first priority

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. The Convention explicitly recognizes that the child’s interest in avoiding physical or psychological harm, in addition to other interests, ‘may overcome the return remedy.’ A court may therefore decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave.

2 : The court should not usurp the role of the court that will adjudicate the underlying custody dispute

Secondly, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. See article 16 of the treaty. Accordingly, a court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.

3 : The court should act expeditously in return proceedings

Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts ‘act expeditiously in proceedings for the return of the children.’ See article 11 of the Convention. Timely resolution or return petitions is important in part because return is a ‘provisional’ remedy to enable final custody determinations to proceed (Monasky). The Convention also prioritizes expeditious determinations as being in the best interest of the child because ‘expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and children (Chafin v. Chafin). A requirement to ‘examine the full range of options that might make possible the safe return of a child’ (Blondin II) is in tension with this focus on expeditious resolution.


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