On October 28, 2021, the U.S. Acting Solicitor General filed a brief in the case of Saada v. Golan, taking the position that the U.S. Supreme Court should grant Ms. Golan’s petition for writ of certiorari.
As a reminder, this case addresses whether a court must determine if there are “ameliorative measures” that would reduce an otherwise grave risk of harm to a child such that the court could allow the child’s return and protect the child from the harm that exists. This case has been up and down the 2nd Circuit a few times. Initially, Mr. Saada agreed to pay money, stay away from Ms. Golan, and pursue dismissal of criminal charges. The court, based on these undertakings, ordered the child returned to Italy. However, the 2nd Circuit partially vacated this order because the most important protective measures were unenforceable or “not otherwise accompanied by sufficient guarantees of performance.” On remand, the EDNY spent 9 months exploring the measures available to return the child to Italy safely, including speaking with the U.S. Department of State, a member of the International Hague Network of Judges, and examining an Italian court proceeding. On that basis, the court was satisfied with the measures that existed, and ordered the child returned again. Ms. Golan appealed, and the 2nd Circuit affirmed this second return order.
The Acting SG took the view that the Hague Abduction Convention allows, but does not require, a court to consider measures “that could ameliorate a grave risk of harm when determining whether to refrain from ordering the return of a child under Article 13(b).” Further, the 2nd Circuit’s “categorial requirement to consider – and even craft – a full range of ameliorative measures fails to adequately respect the Convention’s prohibition on making custody decisions when adjudicating a return petition and its emphasis on expeditious proceedings.” Requiring a consideration of ameliorative measures causes delays inconsistent with the Convention, according to the Acting SG.
In reality, there is no language in the treaty mandating a consideration of “ameliorative measures.” But, the treaty supports a judge using his or her discretion to return a child at any time – whether or not there is a grave risk, and whether or not there are “ameliorative measures” available. Some recent cases have lead to trial judges crafting return orders that include some rather interesting provisions, such as in Radu v. Shon where the court required the children be returned to Germany in the custody of their mother (meaning she is also mandated to return). It is unclear whether a court’s consideration of circumstances in the habitual residence (such as availability of shelters or social services), foreign court orders (already in place or being pursued, etc.), or other “ameliorative” measures causes delay, however. While these cases are intended to be expedited, expedition does not necessarily correlate with a court’s elimination of a robust considering of all relevant evidence and information in making its decision, and in exercising its discretion.
The Acting Solicitor General did argue that there exists a circuit split and that the Supreme Court should grant cert “to provide guidance to the lower courts that will enable them to exercise their discretion appropriately and promptly in resolving Convention cases.” It is unclear as to what guidance is envisioned, and how that guidance might actually differ from the guidance adopted by the 2nd Circuit in its requirement of ameliorative measures. It remains to be seen as to whether the Supreme Court will go beyond the question presented to it (i.e., whether this mandate is appropriate) into elaborating on what guidance courts should adopt in exercising their discretion.