16 Nov To Return or Not to Return: Judicial Discretion to Return a Child under the Hague Child Abduction Convention after a Finding of a Grave Risk
[Melissa Kucinski is an international family law expert based in Washington, D.C. who consults for lawyers globally on their multi-jurisdictional family law cases.]
On January 26, 2021, Ms. Narkis Golan requested that the U.S. Supreme Court grant a writ of certiorari in the ongoing saga between her and Mr. Isacco Saada concerning their child. Several years ago, Ms. Golan traveled from Italy to New York with their child for a family wedding, and never returned to Italy. Mr. Saada filed a petition with the U.S. District Court for the Eastern District of New York, requesting his child’s return to Italy pursuant to the Hague Child Abduction Convention. The district court has twice ordered the minor child returned, with Ms. Golan’s appealing each order and now seeking intervention in the United States’ highest court.
The issue at dispute is whether a U.S. judge should be required to consider measures (such as bonds, protective orders, conditions in the home country, etc.) to facilitate a child’s safe return to their habitual residence, even after the court found that there is a grave risk that returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention), concluded by the Hague Conference on Private International Law in October 1980, and ratified by the United States in 1988, intended to create some stability for a child while that child’s parents litigate over their custody. That stability comes in the form of returning a child who was removed from or retained outside of their “habitual residence” to their “habitual residence.” Therefore, the remedy available in this treaty is simple: if a Petitioning Parent can prove their case, they should have their child returned home. This treaty does not resolve what country or court will address the underlying custody case for this child. It does not affect the choice of law applied by the proper court in the proper country to determine a child’s custody. It also does not establish any provisions for custody or new access to this child between the parents. It simply puts the child back in the place from where they were taken while their parents engage in what is often protracted litigation over where that child will live and with whom.
The parent accused of abducting their child has certain arguments available to them under the treaty to persuade the judge that the child should not be returned to their habitual residence. One of the most argued exceptions is that there is a grave risk that if the child were returned, that child would be exposed to physical harm, psychological harm, or placed in an intolerable situation. In the United States, this exception must be proven by the Respondent through clear and convincing evidence. This is where Ms. Golan finds her family. She argued that returning her child to Italy would place the child in physical or psychological harm, and, in fact, the district court agreed with her. But the judge took a further step in her analysis when deciding whether she would return the Golan-Saada child. Once the judge was persuaded that there was a grave risk that a return would present harm to this child, pursuant to past precedent in the Second Circuit, the judge was then obliged to examine what “ameliorative” measures existed that could be put in place to nonetheless permit this judge to return the child safely.
The Hague Conference on Private International Law, in its 2020 Guide to Good Practice on the grave risk exception, references the use of “undertakings” and “protective measures” (i.e., what the Second Circuit is calling “ameliorative” measures). Protective measures are intended to cover a broad range of services in the child’s habitual residence, such as access to legal aid, financial and housing assistance, health services, shelters, support for survivors of domestic violence, and the responsiveness of police and the criminal justice system to punish bad actors. Undertakings are promises that the Left-Behind Parent in the habitual residence agrees to do, such as provide financial support, stay away from the child, not pursue criminal charges against the alleged Taking Parent, etc. Undertakings would, necessarily, need to be enforceable against the parent in the foreign country for them to be worth the paper on which they are written. Any of the above, if presented as evidence to a judge, could be persuasive that the child would be safe if returned home.
On remand from the Second Circuit, the judge in the Eastern District of New York felt certain that the Italian courts were able to protect Mr. Saada’s and Ms. Golan’s child, and the child should, despite the finding that a grave risk existed, nonetheless be returned to Italy. The judge spent approximately nine months, after the first appeal, exploring measures to safely return the child. At present, there remains an order mandating the child’s return to Italy, but it is temporarily stayed because of the posture of the case and Ms. Golan’s petition to the Supreme Court. On April 5, 2021, the U.S. Supreme Court requested that the Acting U.S. Solicitor General file a brief expressing the views of the United States as to the mandatory consideration of “ameliorative” measures. On October 27, 2021, the government filed its brief, taking the position that the U.S. Supreme Court should grant certiorari, remand the case so that the district court might consider the return without the Second Circuit’s mandate to consider “ameliorative” measures, and “provide guidance to the lower courts that will enable them to exercise their discretion appropriately and promptly in resolving Convention cases.”
The Acting U.S. Solicitor General made clear that the issue before the Supreme Court is entirely about a judge’s discretion. The Hague Child Abduction Convention, while it delineates certain exceptions to the obligation to return a child, including the grave risk exception, does not require an examination of “ameliorative” measures. The grave risk exception provides that a court “is not bound to order the return of the child;” it does not prohibit the return of the child. Moreover, Article 18 of the Convention provides discretion to a judge “to order the return of the child at any time.” Nowhere does the treaty expound upon how a judge execute their discretion, and nowhere in the treaty’s text is there a mandate that a judge’s discretion be exercised in this precise manner by taking additional evidence and making additional analyses. The U.S. took the position, in its brief in Lozano v. Alvarez, the third of four Hague Child Abduction cases argued before the U.S. Supreme Court, that the treaty confers “equitable discretion” on courts to return a child, even if the child is “settled” (addressing another exception available to a Respondent Parent). Justice Alito’s concurrence in Lozano v. Alvarez bolsters the importance of a court’s discretion to return a child, and specifically references the court’s discretion to “return or decline to return a child who has not become settled” when there is a grave risk of harm or an intolerable situation. There is absolutely no doubt that a judge has this discretion, no matter the circumstances and no matter the arguments or evidence presented.
The government agrees with Ms. Golan that the Second Circuit took an impermissible atextual step in mandating the review and consideration of certain evidence that is not required under the treaty. However, if the U.S. Supreme Court grants certiorari, which is increasingly likely given the government’s brief, and agrees with Ms. Golan, it may be unlikely to change the outcome for her, particularly in that courts have discretion, and may (even if not mandated) craft safe harbor orders to return children. The Acting U.S. Solicitor General was very concerned with the length of time that the trial judge in Ms. Golan’s case took in crafting its measures and took the position that the Supreme Court should not only strike down the Second Circuit’s mandate but give guidance in how courts should discharge their discretion. This case has dragged on for years primarily because of the sequential appeals, each which take significant time. Perhaps one of the best options to provide quicker disposition of appeals, and more finality, is to allow a trial judge the authority to design his or her own timeline for the case and execute their discretion by having a robust presentation of evidence by counsel and the parties. Allowing for a more significant evidentiary hearing, but with strict timelines, could help a trial judge provide fuller findings, which provides a proper and complete record for the appellate court to dispose of the appeal more expeditiously. Furthermore, a Petitioner’s presentation of evidence as to the status of things in the child’s habitual residence, including the availability of court intervention, social services, law enforcement, and resources, could simply cause a judge, without even having to exercise his or her discretion, to conclude that any risk does not rise to the level of a grave risk, particularly under the clear and convincing burden.
There is a question as to whether the Supreme Court’s guidance may mirror that in its most recent Hague Abduction Convention opinion in Monasky v. Taglieri. In Monasky, the court created a very broad standard for an undefined term in the Hague Child Abduction Convention, saying that a trial judge should look at the “totality-of-the-circumstances.” Only in one footnote did the Supreme Court give any guidance by analogy as to what the trial judge might consider in executing this broad standard. For a judge to execute his or her discretion to decide whether to return a child, the judge may necessarily need to tailor his or her approach to each case differently, exploring facts highly specific to a child, the parents, the country of habitual residence and its legal system and social services. Given the uniqueness of each case, trial judges should be left to resolve how to handle the case individually, and it is unlikely that guidance akin to that in Monasky will ultimately serve to reduce the length of time between a Petitioner’s filing a Hague Abduction return suit and the child’s being placed on a plane to return home or not.