Courts Can Consider Whether “Ameliorative Measures” Can Be Taken to Reduce the Risk of Harm
United States Circuit Court of Appeals for the 2nd circuit
Opinion Issued: 06/15/2022
Opinion by Sotomayor - decision was unanimous
Holding: The case involves the grave risk of physical harm exception to a child’s wrongful removal from their country of habitual residence. Courts can consider whether “ameliorative measures” can be taken to reduce the risk of harm - so as to avoid the application of the exception (and thus, allow the child to be returned to the parent in the country of habitual residence).
Facts: Golan is the mother and US citizen who met Saada, an Italian citizen while she was visiting Italy. Golan moved to Italy and the couple married. Their son was born in Milan, and the family resided in Italy for the next two years. The trial court found that the parties had a violent relationship, with near daily fighting, including physical altercations. Much of Saada’s abusive conduct occurred in front of their son. Golan and her son flew to the US for a wedding, but instead of returning at the scheduled time, Golan moved into a domestic violence shelter. Saada initiated Italian proceedings seeking custody of the child, along with a petition in S.D.N.Y. for the return of the child to Italy under the Hague Convention and ICARA (International Child Abduction Remedies Act).
The trial court held that Italy was the child’s habitual residence and that Golan had wrongfully retained the child in the US in violation of Saada’s custody rights. But the trial court also included that the exception applied – because the child would be exposed to a grave risk of harm if returned to Italy. Yet, based on Second Circuit precedent, the trial court ordered the child returned to Italy. That precedent required the trial court to “examine the full range of options might make possible the safe return of the child to the home country” before it could “deny repatriation on the ground that a grave risk of harm exists.” The trial court required the parties to propose ameliorative efforts to enable the child’s safe return to Italy. Saada proposed providing Golan financial support in the amount of $30,000 as the case was being litigated in the Italian courts, that he would stay away from Golan until the custody dispute was resolved, he would pursue dismissal of the criminal charges that he sought against Golan (for kidnapping), he would begin cognitive behavioral therapy, and finally he would waive any legal fees or expenses that he would otherwise be entitled to under the Hague Convention. Based on Saada’s proposal, the trial court concluded that this would “reduce the occasions for violence” and thus ameliorate the risk of harm to the child.
Golan appealed and the Second Circuit vacated the trial court’s decision because the ameliorative measures were “insufficient to mitigate the risk” to the child. The Second Circuit remanded to the trial court to “consider whether there exist alternative ameliorative measures that are either enforceable by the District Court or supported by other sufficient guarantees of performance.” During the next 9 months, the trial court sought to ensure the child’s safety by holding status conferences, having Golan obtain an Italian protective order, and having an Italian social services agency oversee Saada’s parenting classes, therapy and visits with the child, and for Saada to pay Golan $150,000 to facilitate the child’s return to Italy. The trial court determined that these measures were sufficient and once again granted the request to return the child to Italy. On the second appeal to the Second Circuit, the trial court decision was affirmed.
Is the trial court required to consider the full range of ameliorative efforts before implementing the grave risk exception to prevent the return of the child to the country of habitual residence?
The trial court uses its discretion to determine whether the child will be exposed to a grave risk of harm. The Hague Convention does not forbid or require ameliorative efforts, so the trial court can use its discretion to determine the scope of measures that might be taken to reduce the risk of harm to the child, and thus enable the child to be returned.
Saada argued that considering ameliorative efforts is an inherent part of the grave risk analysis. SCOTUS disagreed. They are two separate questions. The trial court is to address whether there is a grave risk of harm and then has discretion to determine whether ameliorative measures can be taken. Trial courts can even consider both questions at the same time.
“Under the Convention and ICARA, district courts’ discretion to determine whether to return a child where doing so would pose a grave risk to the child includes the discretion whether to consider ameliorative measures that could ensure the child’s safe return.” The Second Circuit’s rule changes both the Convention and ICARA because it requires the courts to “consider all possible ameliorative measures” in exercising this discretion.
The trial courts should consider the non-frivolous ameliorative measures proposed by the parties, but it is not required to consider measures not raised by the parties. “In addition, the court’s consideration of ameliorative measures must be guided by the legal principles and other 12 GOLAN v. SAADA Opinion of the Court requirements set forth in the Convention and ICARA. The Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives.” The Court went on to state that “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.”
SCOTUS identified three ways in which the trial court’s are constrained from considering ameliorative efforts:
“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.””
“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.”
“any consideration of ameliorative measures must accord with the Convention’s requirement that courts “act expeditiously in proceedings for the return of children.”
The Second Circuit’s erroneous mandate to the trial court resulted in the trial court taking 9 months to comply with the examination of all possible ameliorative measures. This is not expedient.
SCOTUS remanded the case to the trial court so that the court could “engage in the discretionary inquiry as to whether to order or deny return under the correct legal standard.” The Second Circuit’s decision weighted the scales in favor of returning the child to Italy, and SCOTUS does not know what the trial court would have done had it been given the opportunity to use its discretion. The trial court has already heard extensive evidence from which it can make findings. The trial court “should determine whether the measures in question are adequate to order return in light of its factual findings” as to the risk of harm to the child - “bearing in mind that the Convention sets as a primary goal the safety of the child.”
