As most international family law practitioners now know, the U.S. Supreme Court handed down an opinion on June 15, 2022 in the matter of Golan v. Saada, a Hague Abduction Convention matter that revolved around the grave risk of harm exception to returning children under that treaty. In that Supreme Court opinion, the court concluded that a district court cannot be mandated to consider ameliorative measures in grave risk cases, but has the discretion to consider them nonetheless. The Supreme Court also remanded the case for further proceedings. On July 12, 2022, the Eastern District of NY held an initial conference with the parties post-remand. The parties agreed to an expedited briefing schedule. The court heard oral arguments on August 10, 2022. It handed down its decision, ordering the return of the minor child BAS to Italy, on August 31, 2022.

The EDNY’s August 31, 2022 order reiterated what ameliorative measures were already in place, noting “[o]n December 12, 2019, the Italian court overseeing the custody dispute issued a comprehensive order imposing various measures to facilitate BAS’s Italian repatriation.” In rendering its order, the EDNY found that the Italian courts examined “extensive case documentation” from the Hague Abduction proceedings and made findings of physical and psychological violence. The Italian court “issued a protective order against the petitioner, in favor of respondent and BAS…” and instituted a variety of other measures, including evaluations, involvement with social services, and supervised visitation. BAS has his own lawyer in the Italian proceedings. The EDNY also ordered Petitioner to pay to Respondent $150,000 prior to BAS’s return.

The EDNY stated that while the Supreme Court found that a mandatory consideration of ameliorative measures rewrites the treaty, it “did not, however, find that it was improper for district courts to consider ameliorative measures; rather, the Court held that while a district court could not be required to undertake an ameliorative measures analysis after making a ‘grave risk’ finding, the court could consider such measures at its discretion.” The EDNY also referenced the Supreme Court’s observation that “whether ameliorative measures would be appropriate or effective will often overlap considerably with the inquiry into whether a grave risk exists,’ and that the district court ‘may find it appropriate to consider both questions at once.'”

The EDNY spoke very directly to the Supreme Court’s mandate on remand. “The simple answer to the Supreme Court’s question – whether I would have considered ameliorative measures even if the Second Circuit’s rule did not require it – is that I would have done so, albeit in the context of the grave risk inquiry.” “Were this case to come before me today, I would have considered these questions together, because ameliorative measures are ‘obviously suggested by the circumstances of the case.'” In that the grave risk was BAS’s “exposure” to domestic violence and not violence directed at BAS, and that BAS had a “loving” relationship with his father, even if neither party raised ameliorative measures, the Court can, in its discretion consider them if they are obviously suggested by the circumstances of the case. Responding to the Mother’s argument that returning BAS at this time will expose him to potential post-traumatic stress because of the dramatic change in his surroundings, the court said that, just like on remand in 2020 when Respondent raised this issue, she has not proven by clear and convincing evidence that it would cause BAS psychological harm. Further, there is a court order in Italy to evaluate BAS to determine the extent of his psychological or educational needs. Taking new evidence because the prior ameliorative measures are “stale” was a non-starter for the court. Taking additional evidence of BAS’s current circumstances would be diving into custody.

Overall, the Italian proceedings are entitled to respect and comity. It has already shown that it is able to protect BAS.