{"id":268564,"date":"2022-06-17T10:00:15","date_gmt":"2022-06-17T04:30:15","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=268564"},"modified":"2022-06-24T14:57:43","modified_gmt":"2022-06-24T09:27:43","slug":"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","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/06\/17\/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\/","title":{"rendered":"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"},"content":{"rendered":"

Supreme Court of the United States: <\/span><\/b>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, <\/span>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<\/span><\/i>.\u00a0\u00a0<\/span>\u00a0<\/span><\/p>\n

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Facts and Legal Trajectory: <\/span><\/b>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. <\/span>\u00a0<\/span><\/p>\n

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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 \u201cexamined the full range of options that might make possible the safe return of a child\u201d and concluding that \u2018ameliorative measures\u2019 could reduce the risk to looming on the son sufficient enough to require his return.\u00a0<\/span>\u00a0<\/span><\/p>\n

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The Second Circuit vacated the aforementioned order finding such \u2018ameliorative measures\u2019 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\u2019s return; and this time the Second Circuit affirmed.<\/span>\u00a0<\/span><\/p>\n

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The Hague Convention on the Civil Aspects of International Child Abduction <\/span><\/b>requires the judicial or administrative authority of a Contracting State to order a child returned to the child\u2019s country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the Contracting State.\u00a0<\/span>\u00a0<\/span><\/p>\n

The authority \u201cis not bound to order the return of the child,\u201d however, if the authority finds that return would expose the child to a \u201cgrave risk\u201d of \u201cphysical or psychological harm or otherwise place the child in an intolerable situation.\u201d<\/span>\u00a0<\/span><\/p>\n

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.<\/span>\u00a0<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Observations: <\/span><\/b>Sonia Sotomayor, J., delivered the unanimous opinion of the Court in the matter. Some of the significant observations are as follows-\u00a0<\/span>\u00a0<\/span><\/p>\n