Golan v. Saada, 596 U.S. ___ (2022)
Golan, a U.S. citizen, married Saada, an Italian citizen, in Italy, where, in 2016, they had a son, B. In 2018, Golan flew to the United States and moved into a domestic violence shelter with B. Saada sought an order returning B. to Italy under the Hague Convention on the Civil Aspects of International Child Abduction, which requires that a child be returned to the child’s country of habitual residence upon a finding that the child has been wrongfully removed to or retained unless the authority finds that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” The district court concluded that B. would face a grave risk of harm if returned to Italy, given evidence that Saada had abused Golan but ordered B. returned to Italy, applying Second Circuit precedent obligating it to “examine the full range of options that might make possible the safe return of a child” and concluding that ameliorative measures could reduce the risk to B. Following a remand, the Second Circuit affirmed.
The Supreme Court vacated. A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for the return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The Second Circuit’s rule, imposing an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, improperly elevated return above the Convention’s other objectives. A court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings.
A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for the return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm.
SUPREME COURT OF THE UNITED STATES
Syllabus
Golan v. Saada
certiorari to the united states court of appeals for the second circuit
No. 20–1034. Argued March 22, 2022—Decided June 15, 2022
The Hague Convention on the Civil Aspects of International Child Abduction requires the judicial or administrative authority of a Contracting State to order a child returned to the child’s country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the Contracting State. The authority “is not bound to order the return of the child,” however, if the authority finds that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.” The International Child Abduction Remedies Act (ICARA) implements the Convention in the United States, granting federal and state courts jurisdiction over Convention actions and directing those courts to decide cases in accordance with the Convention.
Petitioner Narkis Golan, a United States citizen, married respondent Isacco Saada, an Italian citizen, in Italy, where they had a son, B. A. S., in 2016. In 2018, Golan flew with B. A. S. to the United States to attend a wedding and, instead of returning to Italy, moved into a domestic violence shelter with B. A. S. Saada thereafter timely filed a petition with the U. S. District Court for the Eastern District of New York, seeking an order returning B. A. S. to Italy pursuant to the Hague Convention. The District Court concluded that B. A. S. would face a grave risk of harm if returned to Italy, given evidence that Saada had abused Golan and that being exposed to this abuse harmfully affected B. A. S. The court, however, ordered B. A. S.’ return to Italy, applying Second Circuit precedent obligating it to “examine the full range of options that might make possible the safe return of a child” and concluding that ameliorative measures could reduce the risk to B. A. S. sufficiently to require his return. The Second Circuit vacated the return order, finding the District Court’s ameliorative measures insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed.
Held: A court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. Pp. 8–16.
(a) “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Abbott v. Abbott, 560 U.S. 1, 10 (internal quotation marks omitted). When “a child has been wrongfully removed or retained” from his country of habitual residence, Article 12 of the Hague Convention generally requires the deciding authority (here, a district court) to “order the return of the child.” T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11, p. 9. But Article 13(b) of the Convention leaves a court with the discretion to grant or deny return, providing that a court “is not bound to order the return of the child” if it finds that the party opposing return has established that return would expose the child to a “grave risk” of physical or psychological harm. Id., at 10. Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion. Pp. 8–11.
(1) Saada’s primary argument is that determining whether a grave risk of harm exists necessarily requires considering whether any ameliorative measures are available. The two questions, however, are separate. A court may find it appropriate to consider both questions at once, but this does not mean that the Convention imposes a categorical requirement on a court to consider any or all ameliorative measures before denying return based on a grave-risk determination. Pp. 9–10.
(2) The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. The Second Circuit’s contrary rule—which imposes an atextual, categorical requirement that courts consider all possible ameliorative measures in exercising discretion under the Convention, regardless of whether such consideration is consistent with the Convention’s objectives—“in practice, rewrite[s] the treaty,” Lozano v. Montoya Alvarez, 572 U.S. 1, 17. Pp. 10–11.
(b) A district court’s consideration of ameliorative measures must be guided by the legal principles and other requirements set forth in the Convention and ICARA. The Second Circuit’s rule improperly elevated return above the Convention’s other objectives. The Convention does not pursue return exclusively or at all costs. Courts must remain conscious of all the Convention’s objectives and requirements, which constrain courts’ discretion to consider ameliorative measures. First, the Convention explicitly recognizes that any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. Second, consideration of ameliorative measures should 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. Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts “act expeditiously in proceedings for the return of children.” A court therefore reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. Pp. 11–15.
(c) In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. Accordingly, it is appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. Pp. 15–16.
833 Fed. Appx. 829, vacated and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court.
JUDGMENT ISSUED |
Application (21A865) for an order to issue the judgment forthwith granted by Justice Sotomayor. |
Application (21A865) to issue the judgment forthwith, submitted to Justice Sotomayor. |
Judgment VACATED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. |
Argued. For petitioner: Karen R. King, New York, N. Y. For United States, as amicus curiae: Frederick Liu, Assistant to the Solicitor General, Department of Justice, Washington, D. C. For respondent: Richard Min, New York, N. Y. |
The Clerk has approved respondent's lodging proposal of March 4, 2022. |
Redacted order and redacted certified English translation of December 16, 2021 order of Court of First Instance of Milan lodged. (Distributed) |
Reply of Narkis Golan submitted. |
Reply of petitioner Narkis Golan filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument GRANTED in part, and the time is allotted as follows: 20 minutes for petitioner, 15 minutes for the Solicitor General, and 35 minutes for respondent. |
Proposal of respondent to lodge a copy and a certified English translation of the December 16, 2021 order of the Milan Court of First Instance in Saada v. Golan filed. (Distributed) |
Lodge non-record material - December 16, 2021 Italian order of Isacco Saada submitted. |
Amicus brief of Professors of Law Linda J. Silberman, Robert G. Spector, and Louise Ellen Teitz submitted. |
Brief amici curiae of Professors of Law Linda J. Silberman, Robert G. Spector, and Louise Ellen Teitz filed. (Distributed) |
Motion of United States for leave to participate in oral argument and for divided argument submitted. |
Amicus brief of Child Abduction Lawyers Association (CALA) submitted. |
Brief amicus curiae of Child Abduction Lawyers Association (CALA) filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed. |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for divided argument, and for enlargement of time for oral argument filed. |
Amicus brief of International Academy of Matrimonial Lawyers submitted. |
Brief amicus curiae of International Academy of Familyl Lawyers filed. (Distributed) |
Brief amicus curiae of International Academy of Family Lawyers filed. (Distributed) |
Brief of Isacco Saada submitted. |
Brief of respondent Isacco Saada filed. (Distributed) |
Brief of Isacco Saada submitted. |
CIRCULATED |
The record received from the U.S.D.C. Eastern District of New York has been electronically filed. |
ARGUMENT SET FOR Tuesday, March 22, 2022. |
Amicus brief of Italian Organizations Advocating for Victims of Domestic Violence submitted. |
Brief amicus curiae of American Academy of Matrimonial Lawyers in support of neither party filed. |
Brief amicus curiae of American Academy of Matrimonial Lawyers filed. |
The record received from the U.S.C.A. 2nd Circuit has been electronically filed. |
Amicus brief of American Academy of Matrimonial Lawyers submitted. |
Amicus brief of Former Judges submitted. |
Amicus brief of Domestic Violence Survivors submitted. |
Amicus brief of United States submitted. |
Amicus brief of The National Association of Social Workers; Institute on Violence, Abuse and Trauma; The National Partnership to End Interpersonal Violence Across the Lifespan; Dean Jeffrey Edleson, Ph.D.; Professor Evan Stark, Ph.D.; Luz Towns-Miranda, Ph.D.; Marie G. Rudden, M.D.; Joyanna Silberg, Ph.D.; Professor Jean Mercer, Ph.D.; Professor Megan Goslin, Ph.D. and Professor Chitra Raghavan, Ph.D. submitted. |
Amicus brief of Frederick K. Cox International Law Center submitted. |
Record requested from the U.S.C.A. 2nd Circuit. |
Amicus brief of Hague Convention Delegates Jamison Selby Borek & James Hergen submitted. |
Amicus brief of Individuals and Organizations Advocating for Victims of Domestic Violence (Sanctuary for Families, Inc. et al.) submitted. |
Brief amicus curiae of Frederick K. Cox International Law Center filed. |
Brief amici curiae of The National Association of Social Workers; Institute on Violence, Abuse and Trauma; The National Partnership to End Interpersonal Violence Across the Lifespan; Dean Jeffrey Edleson, Ph.D.; Professor Evan Stark, Ph.D.; Luz Towns-Miranda, Ph.D.; Marie G. R filed. |
Brief amici curiae of Domestic Violence Survivors filed. |
Brief amici curiae of The National Association of Social Workers, et al. filed. |
Brief amici curiae of Italian Organizations Advocating for Victims of Domestic Violence filed. |
Brief amici curiae of Individuals and Organizations Advocating for Victims of Domestic Violence (Sanctuary for Families, Inc. et al.) filed. |
Brief amici curiae of Former Judges filed. |
Brief amicus curiae of United States filed. |
Brief amici curiae of Hague Convention Delegates Jamison Selby Borek & James Hergen filed. |
Consent to the filing of amicus briefs received from counsel for Isacco Saada submitted. |
Blanket Consent filed by Respondent, Isacco Saada |
Brief amici curiae of Child Justice, Inc., Prevent Child Abuse NY and Professor Jennifer Baum filed. |
Amicus brief of Child Justice, Inc., Prevent Child Abuse NY and Professor Jennifer Baum submitted. |
Joint Appendix submitted. |
Brief of Narkis Golan submitted. |
Brief of petitioner Narkis Golan filed. |
Joint appendix filed. (Statement of costs filed) |
Blanket Consent filed by Petitioner, Narkis Golan |
Consent to the filing of amicus briefs received from counsel for Narkis Golan submitted. |
Petition GRANTED. |
DISTRIBUTED for Conference of 12/10/2021. |
DISTRIBUTED for Conference of 12/3/2021. |
Brief amicus curiae of United States filed. |
The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States. |
DISTRIBUTED for Conference of 4/1/2021. |
Reply of petitioner Narkis Golan filed. (Distributed) |
Brief of respondent Isacco Saada in opposition filed. |
Brief amici curiae of Individuals and Organizations Advocating for Victims of Domestic Violence (Sanctuary for Families, Inc., et al.) filed. |
Brief amicus curiae of Frederick K. Cox International Law Center filed. |
Petition for a writ of certiorari filed. (Response due March 1, 2021) |