In September 2020, the U.S. District Court for the District of Arizona ordered that Mr. Radu and Ms. Shon’s two children be returned to Germany, but, because the court concluded returning the children to Mr. Radu would present a grave risk of psychological harm, the court ordered that “Shon shall retain temporary custody and care of the children until a custody determination can be made by a German court of competent jurisdiction.” Ms. Shon appealed, arguing that the court exceeded its authority, including: requiring her to move to Germany, resolving (albeit temporarily) custody of the children, setting up a situation where she was required to file a custody suit in Germany, and necessitating the German courts to resolve custody over the children.
The Ninth Circuit issued its opinion on August 31, 2021, vacating and remanding to the District Court. It reaffirmed that when a court finds that there is a grave risk of harm, it must determine whether there is an alternative remedy that can safely repatriate the child, and it needs to determine “whether and how the alternative remedy is likely to be performed.” The district court vacated and remanded, requesting more supporting evidence on whether the order returning the children in Ms. Shon’s custody has a high likelihood of performance through supportive reinforcements in Germany.
The Ninth Circuit made a few points that are worth highlighting. I encourage you to read the entire opinion. First, it said that, if requiring the relocation of the abducting parent back to the child’s habitual residence can help alleviate any grave risk of harm caused by the repatriation, the court has that discretion. The court’s remand was only intended to create a fuller record to have sufficient guarantees that this remedy will be enforced in Germany. In other words, the district court has the authority to both issue an order placing a child in a parent’s (temporary) custody and requiring an adult (U.S. citizen, in this case) to relocate to a foreign country.
Second, the court referenced, a few times, the role the State Department can take in coordinating “legal safeguards or otherwise procure assistance from the foreign jurisdiction to address or resolve any issues animating the Article 13(b) grave risk of harm finding.” This is an interesting reading of what the U.S. Department of State can and will do under the Convention (Article 7), and what authority it may have to effectuate anything related to the child in a foreign jurisdiction.
Finally, the court opinion stated, “[w]e must respect that another treaty partner … is well-equipped with the proper legal mechanisms and internal processes and procedures to support alternative remedies and otherwise fulfill treaty obligations.” As the U.S. Department of State highlights in its annual compliance report, other treaty partners are not always keen in fulfilling their treaty obligations. It is also unclear as to whether the court is saying that a foreign country has an obligation under the Hague Abduction Convention to enforce a foreign custody order. [See a separate Hague Convention – the 1996 Hague Child Protection Convention]
As a reminder, the entire issue of alternative remedies (or, as the 2nd Circuit calls them, ameliorative measures) is awaiting some movement by the U.S. Supreme Court in the case of Saada v. Golan.