On November 29, 2021, Persephone Shon petitioned the U.S. Supreme Court to grant certiorari in her case. Ms. Shon has been ordered, by a U.S. District Court, twice to return her children to Germany. The first order mandated that the children be returned in her custody. The Ninth Circuit affirmed that this was a permissible remedy to safely return the children after a finding of grave risk to their psychological wellbeing, but remanded for further proceedings, which occurred in November 2021, on the feasibility and enforceability of these protective measures. At the November 2021 trial, a German law expert testified that the district court order was unlikely to be enforced. The judge then spoke with the U.S. Department of State and the German Central Authority. Feeling confident that the German courts would act promptly and protect the children, the court again ordered the children returned to Germany in Ms. Shon’s custody. Ms. Shon asks two questions in her cert petition, one mirroring that in the case of Golan v. Saada, and the other questioning that, regardless of whether a court must or has the discretion to consider protective measures, which party has the burden of demonstrating the adequacy of them.

On February 25, 2022, Mr. Radu filed his opposition to the petition. Among his arguments, Mr. Radu argued that the U.S. would not be treaty partners with a country that it did not trust to protect children. He cited to the example of the U.S. not accepting Belarus’s accession to the 1980 Convention, the U.S. accepting Pakistan’s many years after Pakistan acceded, and the U.S. accepting Germany’s “accession.” [Note – Germany did not accede to the treaty. Since it was a Member of the Hague Conference in 1980, when the treaty was concluded, it ratified the treaty, just like the U.S. All ratifying parties to this treaty are automatically treaty partners].

Mr. Radu further argued that Ms. Shon has a pending appeal in the Ninth Circuit (her second time appealing to that court), it remains open, and therefore there is no final judgment. Further, because the U.S. Supreme Court will hear oral arguments in Golan v. Saada on March 22, 2022, that case is a more appropriate vehicle to resolve the issue pending. Her current Ninth Circuit appeal also has ancillary issues not argued in her petition for writ of cert, including that the court’s ex parte discussions with the Central Authorities violated her constitutional rights. Finally, neither Radu nor Shon has argued that a district court has no authority to review ameliorative measures – they argue between whether a court has the discretion or is mandated.

To have more context on the legal issues, look at the Golan v. Saada case, where both parties, the government, and all amici have filed briefs. You can find all briefs here. Golan v. Saada is scheduled for oral argument before the Supreme Court on March 22, 2022.