US Supreme Court Limits Scope of Hague Case Inquiries

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Narkis Golan, a US citizen married Isacco Saada, an Italian citizen while both were in Italy in August, 2015. While there they had a child 2016. Two years later, under the pretense of attending a wedding, Golan flew to the United States with the child and moved into a shelter in New York. Saada filed proceedings in Italy and a petition in the US District Court requesting the return of the child to Italy pursuant to the Hague Convention and the International Child Abduction Remedies Act (ICARA; 22 U.S.C. 9003). Golan objected on the basis that Saada had abused her in the presence of the child. The trial court heard nine days of testimony and found a grave risk did exist but ordered the child returned notwithstanding. It would appear the US court was satisfied that Italy would act to protect the child. The father (Saada) had offered to pay $30,000 in relocation expenses and to stay away from the mother and his child pending proceedings in Italy to decide the custody issue. The District Court found those protections sufficient to order mother and child to return to Italy. Nonetheless, the Second Circuit vacated that order and remanded for a more complete record to show that the protections in Italy were adequate. After nine months the trial court again held that return to Italy was merited after consideration of the factors found in the treaty and the statute. Its revised orders insisted that protective orders be issued by the Italian Courts and the Ministry of Justice as a condition of return. The Italian Courts did issue such orders including “stay away” protections and supervised therapy. The Court also modified the set aside for mother’s living expenses while the custody matter proceeded in Italy. This time the 2nd Circuit affirmed the order assessing that the protections in Italy were adequate. Mother asked for and got Supreme Court review.

In a unanimous opinion authored by Justice Sotomayor, the Supreme Court reversed the 2nd Circuit. The opinion offers that “Nothing in the [Hague] Convention’s text either forbids or requires ameliorative measures in exercising this discretion. The Convention itself nowhere mentions ameliorative measures.” Nor does the ICARA statute. State Department policy also suggests that once “grave risk” of physical or psychological harm is established, the Courts need not evaluate “ameliorative measures.” 51 Fed. Reg. 10510 (1986). Consideration of ameliorative measures is discretionary, not mandatory and when employed “must be guided by the legal principles and other requirements set forth in the Convention and ICARA.” The 2nd Circuit analysis is flawed because it elevates return of the child over protection of the interests of the child and the parents. The Supreme Court’s majority opinion also notes that the length and depth of the proceedings over appropriate ameliorative measures denigrates the importance of an expeditious procedure as set forth in Article 2 of the Treaty.

District Courts are told they may decline to consider ameliorative measures that are (a) not raised by the parties (b) facially unworkable (c) draw the court into hearing the merits and (d) prolong the proceedings.

To its credit, the Supreme Court then stops to ask “What do we do now?” Unfortunately, the conclusion belies the Court’s prior reasoning. They remand the case for further proceedings in the trial court where their “corrected” interpretation is to be employed.

This case is a paradox. To read the facts as presented by Justice Sotomayor, the father essentially acknowledged he was abusive “toward the mother.”His own expert acknowledged uncontrolled anger and behavior on father’s part. This writer does not dispute that small children who see their parents abused often suffer and/or mimic that behavior later in life. But this is a “jurisdiction” case. The events giving rise to mother’s flight occurred in Italy and the judicial opinions expressed in America do not find that Italy would not fairly decide this case or protect their citizen from this father’s misconduct.

On my reading, the District Court did its job the first time and candidly, the Supreme Court should have reversed the 2nd Circuit and re-instated the District Court’s first order. As the Supreme Court notes, the job of any Court in a Hague case is to send the case where it belongs unless, it is clear that the “receiving” jurisdiction can’t or will not protect the child. There are plenty of nations where those concerns are quite real. But in this case, whatever we think of the father, he was prepared to pay the costs and forgo custodial time so that the receiving court in Italy could do its job. That was accomplished by the district court in its first order after nine days of hearings. Nine days to decide whether a child should be returned to another country where there is no issue that the child was abducted? Then we have an appeal; a remand and nine months of delay while additional protections are imposed or agreed. We are informed that the Republic of Italy fully cooperated. What is the message to that nation where it’s own citizen is wrongfully taken to the United States and kept here for four years while America dithers over whether Italy can justly decide a custody matter. What would or should be the reaction of the U.S. Department of State if a U.S. child is detained for four years while the Italians decide whether the American courts can fairly dispose of a custody proceeding?

We have seen this before. Perhaps because they don’t regularly hear custody matters, federal courts do tend to engage in exhaustive hearings where the only real issues should be jurisdiction and safety. See our post of 1/5/2018 concerning Blackledge v. Blackledge, 866 F.3d 169 (3rd Cir 2017).The Supreme Court is correct to note that speed is of the essence but then they remand the case for further proceedings. The Court is also correct that ameliorative considerations are waived if not asserted. But it looks like they were not waived in this case. And in the end, it is clear the Supreme Court order has drawn the District Court into further aspects of the merits and further delay of a case where jurisdiction should have been decided long, long ago. Those proceedings will probably beget another appeal and the message to the world is that abduction can be a practical remedy, if not a legal one. The Hague Convention was intended to prevent that.

Golan v. Saada 20-1034 (Decided June 15, 2022 )20-1034 Golan v. Saada (06/15/2022) (supremecourt.gov)

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