Golan v. Saada
Overview
Overview
Golan v. Saada (2022) held unanimously that courts adjudicating cases under the Hague Convention on the Civil Aspects of International Child Abduction are not required to consider all possible ameliorative measures, such as protective orders and supervised exchanges, that might allow a safe return before ordering a child returned to a country where there is a grave risk of harm. The decision clarified that courts have discretion over whether and how to consider such measures, reversing the Second Circuit's requirement.
The Facts
Facts
Narkis Golan, a U.S. citizen, was ordered by an Italian court to return to Italy with her son after she relocated to the United States without the consent of the Italian father, Isacco Saada. Evidence showed the father had subjected Golan to years of domestic violence in Italy. The district court found return to Italy posed a 'grave risk' to the child under the Convention's Article 13(b) exception, but the Second Circuit reversed, requiring the court to consider whether protective measures could mitigate that risk before declining to order return.
The Issue
Issue
Whether Article 13(b) of the Hague Convention requires courts to consider ameliorative measures that would reduce the risk of harm to a child before invoking the grave-risk exception to the default rule requiring return.
The Rules
Rule
The Hague Convention on International Child Abduction (codified in the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq.) establishes a default rule of return for children wrongfully removed across international borders, subject to an exception when return would expose the child to a 'grave risk' of physical or psychological harm. Article 13(b) gives courts discretion over whether to return a child when grave risk is established.
The Application
Analysis
When Golan established a grave risk of harm to her son based on the father's history of domestic violence in Italy, the Court held that she was not required to accept the Second Circuit's demand that the court consider protective measures, such as supervised exchanges or Italian protective orders, before declining return. The decision preserved the district court's finding of grave risk and freed courts from an obligation to exhaust potentially inadequate or unenforceable foreign remedies as a prerequisite to invoking Article 13(b). For victims of international domestic violence fleeing to the United States, this ruling meant that demonstrating serious harm does not require agreeing to conditions that may offer little practical protection in the country of origin.
The Conclusion
Conclusion
Unanimous 2022 ruling preserving judicial discretion in Hague Convention return proceedings. Courts facing grave risk of harm findings are not required to exhaust every conceivable protective measure before declining to return. The decision reduces pressure on victims of international domestic violence to accept unenforceable foreign protective orders as a condition of refusing return.
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