This summary is a little longer because it is the first case where I have seen Golan v. Saada cited and applied in a Hague Abduction Convention case since the Supreme Court opinion on June 15, 2022. As a quick note, Petitioner put forth evidence of ameliorative measures, the court did consider those ameliorative measures (despite not being mandated to do so), and then applied the 3 considerations in Golan to determine that the ameliorative measures would not be effective to ameliorate the grave risk it found. Therefore, the Petitioner’s request to return the children was denied.
The parties are parents to two children, who were both born in Ontario and lived in Canada for all points in their life until December 2021. The parties relationship was punctuated by controlling and violent behavior. Petitioner/Father has a history of depression, Borderline Personality Disorder, and “narcissistic traits.” He also has a history of suicide attempts. In October 2020, Petitioner was arrested and charged with possession of child pornography. Throughout, he attempted certain therapeutic interventions, although it appears from testimony that he was not fully engaging, nor necessarily engaging in all the right therapies.
In late December 2021, Petitioner had additional episodes where he sought intervention for potential suicidal thoughts. Respondent then took the children to New York, where her parents live. On February 15, 2022, Petitioner filed his request to return the children under the Hague Abduction Convention. On March 8, 2022, Petitioner filed a request in the Superior Court of Justice in Ontario. On May 16, 2022, the Family Court of NY, Sullivan County, issued a temporary order of protection requiring Petitioner to stay away from Respondent and children, except for some court-ordered zoom calls with the children. During the parties’ Hague Abduction Convention return trial in July 2022, the Respondent conceded that Petitioner met his burden to return the children. Therefore, the court focused on Respondent’s argued exceptions. This summary focuses on the grave risk of harm exception.
At trial, the Respondent was able to prove a grave risk of harm to the children if they were returned to Canada based on Petitioner’s “untreated mental health issues, history of domestic violence and coercive conduct, and access and possession of child pornography …” The experts tied the Petitioner’s mental health issues, and specifically his past suicide attempts and inadequate treatment, to psychological harm to the children. Perhaps most concerning to the court was Petitioner’s possession of child pornography, and, even more, his lack of proper treatment for this behavior, which creates a risk to the children. Based on the testimony, the court concluded that the “derivative harm” of the older child learning about the Father’s actions could prove “psychologically devastating.”
What is more interesting is that the court, even though the Petitioner filed his return lawsuit seven (7) months after the wrongful removal, explored whether the length of time in the U.S. could create a situation where removing the children from NY would, in and of itself, constitute a grave risk of harm. The court looked at the fact that the children adjusted to life in NY, with the oldest child in school with friends and extended family. The mother and children have no place to reside in Canada, and the mother has no money or job in Canada. Therefore, the court concluded that returning the children to Canada “would likely cause confusion, and would expose them to additional psychological harm.”
In this case, Petitioner offered evidence of 8 separate ameliorative measures, including: no contact between Petitioner and Respondent, certain therapies and medication, his continued residence with his parents, and compliance with all social service conditions and requirements. Because Petitioner put forth ameliorative measures, the court examined them (the Golan v. Saada opinion made an examination of ameliorative measures entirely at the discretion of the court, and not mandatory).
“In considering ameliorative measures, the Court must (1) “prioritize the child’s physical and psychological safety”; (2) “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”; and (3) “accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.” Golan v. Saada, 142 S.Ct. 1880, 1893-94 (2022).” The court concluded that the specific measures offered by Petitioner do not prioritize the children’s safety, and do not address Petitioner’s history of aggressive behavior and coercive control. None of the measures further protect the children from Petitioner’s pedophilia. The therapies and interventions suggested by Petitioner were not geared towards actually treating the problems he has, and there is evidence that he has failed to comply with conditions and instructions from social services in the past.