Grave Risk | Ameliorative Measures | Discretion to Return

This case presented the Supreme Court with a circuit split:^[1] after finding a grave risk under Article 13(b), must the court independently examine whether there are conditions available that will enable safe return of the child before denying return. The court concluded there is no affirmative requirement for courts to consider ameliorative measures and reversed the Second Circuit.

Holdings

Burden to Consider. Where ameliorative measures have not been raised by the parties, the court is not required to consider them. However, if raised by the parties or “obviously suggested by the circumstances of the case” a court should consider the options for safe return that have been raised or suggested.

Discretion. Where a grave risk has been established, the court has discretion to consider ameliorative measures. It may decline to do so if the proposed measures (1) are unworkable because the gravity of risk or are unlikely to be followed, (2) would draw the court into determinations properly resolved by the custodial proceedings in habitual residence, or (3) risk overly prolonging return proceedings.

Facts^[2]

The father, a citizen of Italy, and the mother, a United States citizen, met in Italy in 2014. Shortly thereafter, the mother relocated to Milan and the parties married in August 2015. Their child was born in June 2016. Early on in the marriage the father repeatedly engaged in psychological, emotional, verbal, and physical abuse of the mother. This conduct included slapping, pushing, hair-pulling, name-calling, throwing things, and on one occasion, a threat to kill. Many of the incidents occurred in the presence of the child. The parties lived together for approximately two years until July 2018 when the mother and child went to the United States to attend a family wedding. After the wedding, the mother refused to return to Italy, and moved into a domestic violence shelter in New York.

In September 2018, the father filed in Italian courts both a civil action seeking sole custody of the child and a criminal complaint for kidnapping. In January 2019, the father filed his Hague petition in New York for return of the child. After a nine-day trial, the district court granted the father’s petition, finding that Italy was the child’s habitual residence, and the child was wrongfully retained by mother. However, the court also found that returning the child to Italy would expose the child to a grave risk because the domestic violence would have adverse effects upon the child’s cognitive and social development and psychological well-being. The father had no capacity to change his behavior, attempted to excuse his violent behavior, and lacked the ability to control his anger or take responsibility for his conduct.

Second Circuit precedent^[3] states that a court must return a child “if at all possible,” and should “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 district court imposed three conditions upon the father to secure the child’s return to Italy: The father must (1) provide $30,000 for housing, support, and legal fees to the mother before the child’s return; (2) agree to a stay-away order from the mother until Italian courts addressed this issue; (3) exercise visits with the child only with the mother’s consent; (4) begin a course of behavioral therapy in Italy; and (5) waive any rights to an award of fees or costs in the Hague Convention proceeding.

Second Circuit History

Saada v. Golan (Saada II), 930 F.3d 533 (2nd Cir. 2019)

The Second Circuit affirmed the district court’s ruling that Italy was the child’s habitual residence but expressed concern that a child’s repatriation supported only by unenforceable undertakings is “generally disfavored,” particularly where an offending parent’s compliance with their promises is not sufficiently secured.^[4] These concerns included the frailty of a “stay-away” order and the requirement for the mother’s consent to the father’s contact with the child. Because these undertakings were insufficient to mitigate the grave risk, the Second Circuit remanded the case to the district court to determine whether alternative measures were available that would ameliorate the grave risk to the child.^[5] The court noted that these measures should be either (1) enforceable by the district court or (2) supported by other sufficient guarantees of performance.^[6]

District Court’s Orders on Remand: Saada v. Golan (Saada III), No. 1:18-CV-5292 (AMD) (SMG), 2020 WL 2128867 (E.D.N.Y. May 5, 2020)^[7]

After a period of nine months that included multiple hearings and contacts with the Italian Central Authority and the Italian Ministry of Justice, the district court found insufficient evidence to deny repatriation based on psychological harm. The court also found that a combination of ameliorative measures was sufficient to allow the child’s safe return to Italy. Those measures included: (1) an order for the payment of $150,000 to the mother for support of the mother and child, payable before the child’s return to Italy, (2) issuance of an Italian protective order against the father prohibiting him from going near the mother or the child for one year, (3) an order allowing the father supervised visits, and (4) a court order for social services to oversee the father’s parenting classes and behavioral therapy.

Saada v. Golan (Saada IV), 833 F. App’x 829 (2nd Cir. 2020)

The Second Circuit affirmed the court’s order to return the child. It again invoked Blondin:^[8] before denying a child’s return on the grounds of a grave risk, courts “must examine the full range of options that might make possible the safe return of a child.”^[9] The Second Circuit concluded that the district court correctly applied the standards set forth in Saada II and did not commit clear error.

The mother’s petition to the Supreme Court for certiorari was granted December 10, 2021.

Discussion

The Supreme Court reversed the Second Circuit, ruling that when grave risk is found under Article 13(b), courts cannot impose a categorical requirement to consider a “full range of” ameliorative measures that might make the safe return of a child possible. Such a mandate is “inconsistent with the text and express requirements of the Hague Convention.”

The court took note of Article 13(b)’s discretionary language:^[10] a court “is not bound to order the return of the child” if there is evidence “that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”^[11]

The court rejected the father’s assertion that a finding of grave risk requires that ameliorative measures be considered. However, courts may find it appropriate to consider the two issues at the same time. “While a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case.”

The court set forth a test for guided discretion: courts must “remain conscious of the fact that the Convention is “designed to protect the interests of children and their parents”^[12] and must be guided by the Convention and ICARA.^[13] There are “at least”^[14] three ways that a court’s discretion to consider ameliorative measures might be constrained by the Convention. First, the child’s physical and psychological safety must be prioritized and the gravity of risk to the child may foreclose consideration of ameliorative measures. Such risks might include sexual abuse of a child, serious neglect, domestic violence, or situations that give rise to the expectation that ameliorative measures will not be followed.^[15]

Second, the court reviewing the Hague petition should not adopt ameliorative measures that usurp the purview of the court hearing the custody dispute. Any measures adopted should be limited to permit a safe return, but not infringe on custody determinations or permanent orders.

Third, the adoption of measures must be guided by the Convention’s exhortation for expeditious proceedings. Hague Convention return proceedings are “provisional” remedies.^[16] The requirement that consideration of the full range of available ameliorative measures is in tension with the requirement for expeditious handling of the case. The Convention states that parties may request courts to explain proceedings lasting longer than six weeks.^[17]

. . . although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.^[18]

The Supreme Court remanded the case to the district court to reconsider whether the child should be returned to Italy. The Second Circuit’s erroneous mandate to consider ameliorative measures limited the district court’s discretion to deny the child’s return on the basis of the grave risk finding alone. The district court was free to deny the child’s return without consideration of ameliorative measures or consider and potentially implement ameliorative measures consistent with the guidelines set forth in the Supreme Court’s decision.