On January 26, 2021, Narkis Golan filed a Petition for Writ of Certiorari to the U.S. Supreme Court in her Hague Abduction case. The U.S. District Court had concluded that there existed a grave risk of harm to return her child to Italy, but that there could be put in place certain undertakings that would ameliorate that grave risk. The Second Circuit remanded for the District Court to look for enforceable undertakings. At the end of several appeals, the return order stands.
Golan presents the question: whether a court is required to consider “ameliorative measures” that would facilitate the return of the child, despite the grave risk finding? She argues that other circuits have not required a court to consider “ameliorative measures” once the court has found a grave risk of harm. Further, the text of the treaty includes no mention of “ameliorative measures.”
For some context for the reader, Ms. Golan’s Petition uses the words “ameliorative measures” throughout. The Hague Conference’s Guide to Good Practice on Article 13(b) (the grave risk exception) includes some definitions that proximate Ms. Golan’s use of the words “ameliorative measures.” The first is “undertakings” which it defines as a “voluntary promise, commitment or assurance given by a natural person – in general, the left-behind parent – to a court to do, or not to do, certain things.” (p. 11). This could include the $150,000 financial undertaking imposed on Mr. Saada by the trial court that he was obligated to pay prior to the child’s return to Italy. The GGP also specifies that efficacy of the undertakings “will depend on whether and under what conditions they may be rendered enforceable in the State of habitual residence of the child…” (para. 47). The GGP also uses the term “protective measures,” and specifically says these are more commonly considered when the grave risk of harm relates to domestic violence or child abuse. “They cover a broad range of existing services, assistance and support including access to legal services, financial assistance, housing assistance, health services, shelters and other forms of assistance or support to victims of domestic violence, as well as responses by police and through the criminal justice system.” (para. 43). This appears to include services established in the habitual residence, such as a court system that permits protective orders and the police force to enforce those protective orders, in addition to a broader range of voluntary undertakings. Finally, the GGP also notes the terminology of “practical arrangements,” such as purchasing plane tickets to facilitate the child’s return. (para. 49).
A few more references to help the reader prepare, if cert is granted: the U.S. Department of State submitted its response to the Hague Conference’s country profile years ago. It references undertakings in a few places. For instance, when the Hague Conference asked the U.S., “Where a judge or administrative authority in your State is ordering the return of the child, what can the authority do to create conditions for a safe return?” the U.S. responded, “[m]ake a protective order or other order designed to prevent harm occurring to the child Please see our response to 11.2(a) and (d) immediately above”, “[a]ccept undertakings from either party designed to prevent harm occurring to the child,” and “[a]s described above in our response to 11.2(d), the court has wide latitude in ordering provisions for the safe return of the child. As such, either party may ask the court for undertakings to facilitate the child’s safe return, and the court will decide accordingly.” (para. 11.2(e)) Italy’s response to the Country Profile, outlining the protective measures available in its country can be found here.
You can find this Blog’s past posts about Saada v. Golan from 2020 here and here.