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November 04, 2021

Exception to the Exception: Judicial Discretion in Crafting Remedies to Return Children and the Expanding Complexity of Litigating a Hague Abduction Convention Case in the U.S.

By Melissa Kucinski

The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Hague Child Abduction Convention) is a private international law treaty that serves to remedy the wrongful retention or removal of a child by their parent across international borders. Ratified by the United States in 1988, this treaty results in some of the most contentious and expensive international family law litigation each year. Since its ratification, the U.S. Supreme Court has only taken up four Hague Child Abduction Convention cases.  The most recent case, Monasky v. Taglieri, 140 S. Ct. 719 (2020), was penned by the late Justice Ginsburg on February 25, 2020, and provided the applicable standard in the United States for resolving one of the key treaty terms, habitual residence.  A fifth case may be on the horizon.

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 U.S. District Court has twice ordered the minor child returned to Italy, with Ms. Golan’s appealing each order.  Ms. Golan argued against the child’s return using a frequently invoked exception found in Article 13(b) of the Hague Child Abduction Convention.  This exception, colloquially referred to as the “grave risk” exception, says, “… the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – … (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”  Under the U.S. implementing legislation for this treaty, the International Child Abduction Remedies Act, 22 U.S.C. 9001, et. seq., the alleged Abducting Parent must prove this exception by clear and convincing evidence. 

Ms. Golan met her burden at trial.  She proved, by clear and convincing evidence, that there was a grave risk of harm if her child was returned to Italy.  However, once the judge found a grave risk in returning this child, she was obliged, under past precedent in the Second Circuit, to examine what “ameliorative” measures existed that she could put in place to nonetheless return the child safely to Italy. 

The Hague Conference on Private International Law, in examining this issue in the past, and as outlined in its 2020 Guide to Good Practice on this 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 should 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.

It bears noting that the treaty itself, in Article 18, makes clear that even if an exception is proven, the power of the judicial or administrative authority tasked with whether to return the child, is not limited in its ability to “order the return of the child at any time.” The U.S. Department of State took the position, in its brief in Lozano v. Alvarez, 133 S. Ct. 2851 (2013), the third of the 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 intolerable situation. There is absolutely no doubt that a judge has this discretion, and can return a child, no matter what exception is proven.  This discretion exists across the board, including in jurisdictions where there is no mandate, unlike in the Second Circuit, to explore ameliorative measures to craft a safe return order.

The Second Circuit, in Ms. Golan and Mr. Saada’s case, reaffirmed its position that if a district court deems there to be a grave risk, then the court should still return the child if the risk can be ameliorated. On remand, the Eastern District of New York felt confident that the Italian courts were able to protect Mr. Saada and Ms. Golan’s child, and the child should, despite the finding that a grave risk existed, nonetheless be returned to Italy.

The Ninth Circuit also requires an assessment as to whether “alternative remedies” exist to return a child safely to his or her habitual residence after a grave risk of harm is found.  On August 31, 2021, the Ninth Circuit, in Radu v. Shon, No. 20-17022 (2021), approved of a return order crafted by the U.S. District Court judge using alternative remedies that required the children to be returned to Germany in their mother’s custody, a bold move that required an adult American to relocate to a foreign country as a condition to her children’s safe return.  Ms. Shon argued that this forced relocation is impermissible, that resolving custody of the children (even on a temporary basis) is beyond the scope of the treaty, and this return order forces her to initiate a lawsuit in the German courts. The Ninth Circuit concluded that the District Court judge had the discretion to require Ms. Shon to relocate to Germany as the alternative remedy that would ameliorate the grave risk of harm to her children upon their repatriation.

The issue before the Supreme Court is whether a U.S. judge must consider measures (ameliorative, alternative, protective, 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 question before the Court is entirely about a judge’s discretion.  Nowhere in the treaty is there language that a Court must assess, upon a finding of a grave risk of harm, what available measures can be put in place to protect a child if returned.   According to Ms. Golan, the Second Circuit took an impermissible step in mandating the review and consideration of certain evidence that is not required under the treaty.  

Even if the U.S. Supreme Court grants certiorari, and even if the Court strikes down the Second Circuit’s requirement/practice of considering ameliorative measures, judges still have discretion to return children to their habitual residence.   Therefore, very little may change in terms of broadly crafted return orders and expensive litigation strategies.   We may see judges drafting more expansive return orders with more creative solutions to ensure a child is returned to their habitual residence safely.  In turn, we may see more appellate challenges to these return orders, as courts flirt with the lines they cannot cross under the treaty.  We may see more expert witnesses, ranging from those testifying on the safety and security of the other country, immigration impediments in obligating a Taking Parent to go back, and foreign legal experts to opine on the enforceability of these creative return orders overseas.  Striking down a mandate to consider ameliorative measures is unlikely, however, to dissuade judges from using their inherent discretion in returning children. 

The U.S. Supreme Court, on April 5, 2021, requested that the Acting U.S. Solicitor General file a brief expressing the views of the United States in Saada v. Golan.  As of this article’s drafting, the U.S. Solicitor General’s Office has not yet filed a brief. 

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Melissa Kucinski


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.  She is the co-chair of the ABA ILS’s International Family Law Committee, the NYSBA International Section’s Family Law Committee, and was elected to the Board of Governors of the International Academy of Family Lawyers.