Golan v. Saada
596 U. S. ____ (2022) (2022)
Rule of Law:
A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for the return of a child to a foreign country once the court has found that return would expose the child to a grave risk of physical or psychological harm.
Facts:
- Petitioner Narkis Golan, a United States citizen, married respondent Isacco Saada, an Italian citizen, in Italy, where they had a son, B.A.S., in 2016.
- Saada and Golan's relationship was marked by daily fights, with Saada physically, psychologically, emotionally, and verbally abusing Golan, often in front of B.A.S.
- Italian social services noted that the family situation posed a "developmental danger" for B.A.S.
- In July 2018, Golan flew with B.A.S. to the United States to attend a wedding.
- Instead of returning to Italy as scheduled in August, Golan moved into a domestic violence shelter with B.A.S. in the United States.
Procedural Posture:
- Isacco Saada filed a petition under the Hague Convention and ICARA in the U.S. District Court for the Eastern District of New York, seeking an order for B.A.S.’s return to Italy.
- The District Court concluded that B.A.S. would face a grave risk of harm if returned to Italy but, applying Second Circuit precedent, ordered B.A.S.’s return, finding that proposed ameliorative measures could sufficiently reduce the risk.
- Narkis Golan appealed this return order to the U.S. Court of Appeals for the Second Circuit (Golan as appellant, Saada as appellee).
- The Second Circuit vacated the return order, finding the District Court’s ameliorative measures insufficient, and remanded for the District Court to consider whether other sufficient ameliorative measures existed.
- After an examination over nine months, the District Court identified new ameliorative measures and again ordered B.A.S.’s return.
- Golan appealed this second return order to the U.S. Court of Appeals for the Second Circuit (Golan as appellant, Saada as appellee).
- The Second Circuit affirmed the District Court's second return order.
- The Supreme Court granted certiorari to review the Second Circuit's decision.
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Issue:
Is a court categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for the 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?
Opinions:
Majority - Justice Sotomayor
No, a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for the 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 Court explained that Article 13(b) of the Hague Convention states a court "is not bound to order the return of the child" upon a finding of grave risk, which confers discretion rather than a categorical mandate. The Convention's text does not mention or require the consideration of ameliorative measures, nor does the implementing statute, ICARA. While the question of grave risk and the potential of ameliorative measures may overlap, they are distinct inquiries. The Second Circuit's rule, which imposes an atextual and categorical requirement to consider all possible ameliorative measures, effectively "rewrites the treaty." A district court's discretion, while broad, is not unfettered and must be guided by sound legal principles and the Convention’s objectives. This includes prioritizing the child’s physical and psychological safety, avoiding usurpation of the role of courts adjudicating underlying custody disputes, and acting expeditiously. Courts may reasonably decline to consider measures that are not raised by the parties, are unworkable, draw the court into custody determinations, or risk unduly prolonging return proceedings. Given that the District Court's prior decisions were made under the incorrect legal standard, the Supreme Court vacated and remanded the case, trusting the District Court to apply the proper discretionary standard expeditiously.
Analysis:
This decision clarifies the scope of judicial discretion under the Hague Convention's grave risk exception, rejecting a rigid interpretation that prioritized return "at all costs." It provides crucial guidance to lower courts on balancing the Convention's objectives, particularly child safety and expeditious proceedings, against the need to consider potential safeguards. By doing so, the ruling streamlines future Hague Convention cases, preventing protracted litigation over hypothetical or unworkable ameliorative measures. It reinforces the principle that judicial discretion in such sensitive cases must be soundly exercised within the boundaries of the treaty's text and core purposes.
