The U.S. Supreme Court issued its unanimous opinion in Golan v. Saada, vacating the Second Circuit and remanding for further proceedings. The Court held that, “The Second Circuit’s categorical requirement to consider all ameliorative measures is inconsistent with the text and other express requirements of the Hague Convention.”
As a reminder, the EDNY had ordered the minor child’s return to Italy, despite a finding that returning the child would expose the child to a grave risk of harm “based on Second Circuit precedent obligating it to “‘examine the full range of options that might make possible the safe return of a child to the home country’” before it could “‘deny repatriation on the ground that a grave risk of harm exists.’”
The Court said, “The question whether there is a grave risk … is separate from the question whether there are ameliorative measures that could mitigate that risk. That said, the question whether ameliorative measures would be appropriate or effective will often overlap considerably with the inquiry into whether a grave risk exists.”
“The fact that a court may consider ameliorative measures concurrent with the grave risk determination, however, does not mean that the Convention imposes a categorical requirement on a court to consider any or all ameliorative measures before denying return once it finds that a grave risk exists.” The Court concluded that the Second Circuit’s mandate re-writes the text of the treaty, and that a consideration of ameliorative measures should be left to the discretion of the court.
The Court provided the following guidance to trial judges exercising their discretion on whether to consider ameliorative measures:
“While a district court has no obligation under the Convention to consider ameliorative measures that have not been raised by the parties, it ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case, such as in the example of the localized epidemic.” “First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. The Convention explicitly recognizes that the child’s interest in avoiding physical or psychological harm, in addition to other interests, “may overcome the return remedy.”” “Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute.” Therefore, any court ordered ameliorative measures should be limited in time and scope. “Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts “act expeditiously in proceedings for the return of children.””
You can read the opinion by clicking here.