Should courts categorically examine all possible ameliorative measures, before denying a Hague Convention petition for return of a child to a foreign country? SCOTUS answers

Supreme Court of The United States

Supreme Court of the United States: While deciding the instant matter related to the international custody of a child which further involved the reading and interpretation of the concerned provisions of the Hague Convention on the Civil Aspects of International Child Abduction; the full bench of the Court comprising of John Roberts, C.J., and Stephen Breyer, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, Samuel Alito, Elena Kagan, Sonia Sotomayor and Amy Coney Barret, JJ., in a unanimous decision, held that, once a court has found that returning to a foreign country would expose a child to a grave risk of harm, then in such cases, a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country.   

 

Facts and Legal Trajectory: Narkis Golan [‘Petitioner’], a citizen of USA, married an Italian citizen, Issaco Saada [respondent] in Italy. A son was born to them in 2016 and in 2018 the petitioner flew with his son to the United States to attend a wedding. However, instead of returning to Italy, the petitioner moved into a domestic violence shelter with his son. The respondent filed a petition with the U. S. District Court for the Eastern District of New York, seeking an order of returning the child to Italy pursuant to the Hague Convention.  

 

It was concluded by the District Court that given the evidence of the respondent being abusive towards the petitioner and the resultant negative impact on the son; it is therefore a grave risk to send the child back to Italy. However, the Court ordered that the child be returned to Italy after it “examined the full range of options that might make possible the safe return of a child” and concluding that ‘ameliorative measures’ could reduce the risk to looming on the son sufficient enough to require his return.  

 

The Second Circuit vacated the aforementioned order finding such ‘ameliorative measures’ as insufficient and remanded the matter to the District Court to consider whether such measures, in fact, existed. After another examination over nine months, the District Court identified new ameliorative measures and again ordered the child’s return; and this time the Second Circuit affirmed. 

 

The Hague Convention on the Civil Aspects of International Child Abduction requires the judicial or administrative authority of a Contracting State to order a child returned to the child’s country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the Contracting State.  

The authority “is not bound to order the return of the child,” however, if the authority finds that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” 

The International Child Abduction Remedies Act (ICARA) implements the Convention in the United States, granting federal and state courts jurisdiction over Convention actions and directing those courts to decide cases in accordance with the Convention. 

 

Observations: Sonia Sotomayor, J., delivered the unanimous opinion of the Court in the matter. Some of the significant observations are as follows-  

  • Noting that “interpretation of a Treaty like the interpretation of a statute, begins with its text”, the Court observed that Art. 13(b) of the Convention leaves a court with the discretion to grant or deny return, providing that a court “is not bound to order the return of the child” if it finds that the party opposing return has established that return would expose the child to a “grave risk” of physical or psychological harm. Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion. 
  • Determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available- it was observed that existence of grave risk and availability of ameliorative measures are two separate questions and a court may find it appropriate to consider both questions sat once. However, the Convention does not impose a categorical requirement on a court to consider any or all ameliorative measures before denying return based on a grave-risk determination. 
  • As per the Convention and the ICARA, the courts also have discretion to determine that whether consideration of ameliorative measures could ensure the child’s safe return. It was noted by the Full Bench that the Second Circuit laid down a contrary rule which imposed a categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, regardless of whether such consideration is consistent with the Convention’s objectives.  
  • It was further observed by the Court that Second Circuit’s interpretation of the Convention “improperly elevated the child’s return above the Convention’s other objectives”. The courts must remain conscious of all the Convention’s objectives and requirements, which constrain their discretion to consider ameliorative measures.  
  • As per the Convention, any consideration of ameliorative measure must prioritize a child’s physical and psychological safety; and that the consideration of ameliorative measures must accord with the Convention’s requirement that courts must act expeditiously in proceedings for the return of children. “A court therefore 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”.    
  • Finally, the Bench observed that the District Court made the finding of a great risk upon the child’s return; however, it did not have the opportunity to inquire whether to order or deny return under the correct legal standard.  

Decision: Vacating the order of the Second Circuit, the Bench remanded the case to the District Court directing them to determine whether the measures considered, are adequate to order the return of the petitioner’s son, in light of the District Court’s factual findings concerning the grave risk, while bearing in mind that “the Convention sets as a primary goal the safety of the child”.    

[Golan v. Saada, 2022 SCC OnLine US SC 7, decided on 15-06-2022] 


*Sucheta Sarkar, Editorial Assistant has reported this brief. 

 

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