On June 15, the Supreme Court in Golan v. Saada resolved a circuit split regarding the application of the “grave risk” exception under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). Adopted in 1980 and ratified by over 100 countries (including the United States), the Hague Convention aims to bring a predictable and expeditious resolution to international child abductions. To do so, as a general rule the Hague Convention mandates the return of kidnapped children to their country of habitual residence. Once the child is returned, the country of habitual residence retains jurisdiction to make long-term custody determinations between the parties. As with any rule, however, there are exceptions. One exception—termed the “grave risk” exception—permits detention of the child where return to the home country would put the child at grave risk of harm.
Golan v. Saada involved an American mother and an Italian father who met and wed in Italy and began raising their son there. Their union was “characterized by violence from the beginning,” much of which violence the child witnessed. In 2018 the wife and child flew to the United States for a family wedding and never returned to Italy. The father subsequently filed a Hague Convention petition in the U.S. District Court for the Eastern District of New York seeking the child’s return to Italy. The District Court concluded that, although Italy was the child’s country of habitual residence, returning him there would subject him to grave risk of harm. Rather than ordering the child stay in the United States, however, the Court applied the Second Circuit’s precedent which mandated consideration of any ameliorative measures that might make return to the home country safe for the child. The District Court thus engaged in an extensive process to identify and implement of various ameliorative measures and ultimately ordered the child to return to Italy for custody proceedings. The Second Circuit affirmed this decision.
The Supreme Court reversed and remanded, emphasizing that “[n]othing in the [Hague] Convention’s text either forbids or requires consideration of ameliorative measures in exercising [the District Court’s] discretion.” By mandating consideration of ameliorative measures and instructing the trial courts to order return “if at all possible,” the Second Circuit’s rule “improperly elevated return above the Convention’s other objectives”—namely to protect children and their families. A word of caution for would-be petitioners: the Court’s decision puts the discretionary nature of the Hague Convention front and center. Although the Convention aims to constrain trial court decision-making and return kidnapped children to their home countries, the Court’s decision places the applicability of at least the grave risk exception firmly in the discretionary hands of the court. It will be important to watch the trickle-down effects of this decision, particularly whether and how it impacts Hague Convention exceptions other than for grave risk.