The 9th Circuit Court of Appeals, on a third appeal in the case of Radu v. Shon, affirmed the trial court’s return order for two minor children to Germany. The case has a lengthy procedural history, including the U.S. Supreme Court remanding it given the Golan v. Saada opinion in June 2022. The 9th Circuit narrowed the issues before it to: “whether the district court should have conducted an evidentiary hearing during the second remand or the limited remand, refrained from contacting the State Department, or ultimately determined that the record supported its ameliorative measure.”
The 9th Circuit clarified that neither ICARA nor the Convention specify when a court must hold an evidentiary hearing, only instructing courts to decide the case “in accordance with the Convention” and to “act expeditiously.” The Convention also permits a court to order the return of a child “at any time.” It concluded that there should be no categorical rule to require a new hearing, and that the district court is better situated “to determine the exact procedures necessary”. Refusal to hold a new hearing could be an abuse of discretion, but not in this situation, according to the 9th Circuit, as the evidence had not changed.
FRCP 44.1 clarifies that an interpretation of foreign law is a ruling on a question of law (not fact), and a court can consider any relevant material or source, and may, in fact, engage in its own research, which can include expert testimony. Given that Convention cases are intended to be expedited, and even in the 9th Circuit’s original remand in Radu v. Shon, it is envisioned that there would be need for assistance from the State Department. It is within the discretion of the district court to select the method to evaluate law, and, in this case, the district court did not abuse its discretion nor violate the Respondent’s due process rights by communicating with the State Department, and then, through it, the German Central Authority. The court will weigh the information, and, here, it did just that alongside the testimony of the parties and the expert. Respondent did not challenge the legal conclusions offered by the Central Authorities – only the use of these offices as a mechanism to obtain the information.
Finally, Respondent argued the law-of-the-case doctrine, but the 9th Circuit concluded that this doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power”, so the district court did not err in deciding whether a grave risk existed based on the current circumstances.
The return order was affirmed.