On June 15, 2022, the U.S. Supreme Court issued an opinion in its fifth Hague Abduction Convention case, Golan v. Saada.  The case addressed a heavily litigated point of law under this Convention: whether a court must consider ameliorative measures to safely return an abducted child despite the Respondent Parent successfully proving that such a return would expose the child to a grave risk of harm in the habitual residence.  Ultimately, the Supreme Court agreed with neither party, instead aligning with the position of the U.S. government, concluding that a court cannot be required to consider ameliorative measures, but may do so, in an exercise of discretion.  In issuing its opinion, Justice Sotomayor gave some guidance to lower courts in how to approach these cases going forward.  First, while the judge has no obligation to consider these ameliorative measures, “it ordinarily should address ameliorative measures raised by the parties or obviously suggested by the circumstances of the case, such as in the example of a localized epidemic.”  Second, if the judge does consider ameliorative measures, that judge “must prioritize the child’s physical and psychological safety”, “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”, and “must accord with the Convention’s requirement that courts ‘act expeditiously in proceedings for the return of children.’” When ameliorative measures are at issue in a case, they could range from a parent voluntarily undertaking certain obligations upon the child’s return (such as refraining from contact, paying support, or providing resources), to existing resources in the home country (such as “access to legal services, financial assistance, housing assistance, health services, shelters and other forms of assistance or support to victims of domestic violence, as well as responses by police and through the criminal justice system.”) See the Hague Conference’s Guide to Good Practice on Article 13(b), para. 43, et. seq.

Now, one year on from the Supreme Court’s opinion, litigants are settling in to the new standard. Just over one month after the Golan v. Saada opinion, the U.S. District Court for the Southern District of New York applied the new standard in Braude v. Zeirler.  The Respondent Mother argued, and the court found, the exception of a grave risk based on the Petitioner Father’s “untreated mental health issues, history of domestic violence and coercive conduct, and access and possession of child pornography …”. The Petitioner Father argued that he consented to eight separate ameliorative measures, ranging from no contact with the Respondent, to therapy, to taking prescription medications, to residing with his parents, to complying with requirements put forth by the child services agency in Canada.  Since a party raised ameliorative measures, the court “should” consider them, and this court did, following the scheme set forth in Golan v. Saada.  In doing so, the Court concluded that the ameliorative measures failed to “adequately address Petitioner’s lack of serious mental health treatment.” Further, none of them addressed “Petitioner’s history of aggressive behavior and coercive control.”  Lastly, “none of the measures adequately protect the children from Petitioner’s pedophilia.”  The district court therefore denied the Petitioner’s request to return the children, and the Second Circuit affirmed the district court’s order.

The U.S. District Court for the District of Colorado likewise examined ameliorative measures when a 15-year-old child advised the judge, in an in-camera interview, that she had been sexually abused by her father and felt her mother would not protect her.  In Johnson v. Johnson, the district court found insufficient evidence that the Petitioner Father would move out of the family home upon the child’s return, that the Bahamian law enforcement would conduct a thorough or impartial investigation, and that the Petitioner Parents would not place their daughter into a hospital or institution upon her return, for having embarrassed them in this litigation.

The U.S. District Court for the District of Arizona discussed ameliorative measures after the U.S. Supreme Court vacated and remanded a return order based on the Golan v. Saada opinion.  In this case, Radu v. Shon, the district court had ordered the parties’ children returned to Germany several times, at times with the ameliorative measure that their Respondent Mother return with them. Approximately two months after the Golan v. Saada opinion, when on remand, the district court again ordered the children’s return, concluding that “the ameliorative measure set forth in its December 30, 2021 Order – namely, that Respondent return with OSR and MSR to Germany – satisfies the requirements outlined in Golan.”  The court entered this order without an evidentiary hearing, finding that holding one would cause additional delay.  The Respondent Mother appealed to the Ninth Circuit again, and the Ninth Circuit affirmed the return order in March 2023 in Radu III.  A key issue that Respondent Mother has indicated she plans on putting back before the U.S. Supreme Court relates to how the district court gathered information about ameliorative measures.  Namely, the district court had initiated contact with the U.S. Central Authority for the Hague Abduction Convention, which connected the judge with the German Central Authority, to gather information about proceedings and resources in Germany to protect the children. Note that the Hague Conference’s Guide to Good Practice on Article 13(b) states, “[i]n line with the relevant laws and procedures and where it is deemed appropriate in evaluating assertions of grave risk, courts can seek additional information through Central Authorities in order to better understand the legal framework or child protection system in place in the State of habitual residence, or to clarify certain assertions of facts.” (para. 91).  The Guide stresses that the Central Authority is not to evaluate assertions of grave risk.  Central Authorities have a responsibility under the Convention to “cooperate with each other and to promote cooperation among internal authorities to secure the prompt return of the child …”. (para. 96)

Perhaps the most illustrative application of the Golan v. Saada opinion was in Saada v. Golan itself, upon remand. On August 31, 2022, the U.S. District Court for the Eastern District of New York again ordered the parties’ minor child returned to Italy after the Supreme Court vacated the prior return order and remanded the case for review under its new jurisprudence. The district court concluded that the Saada/Golan family’s circumstances “obviously suggested” a review of ameliorative measures, and that the court had extensively examined such ameliorative measures at the original trial, even going so far on a prior remand to request the parents seek a protective order from the Italian courts that would be implemented when the child was returned.  Therefore, the district court again ordered the minor child returned to Italy.  At present, the case is in a brand-new posture, with the original Respondent Mother having passed away in October 2022, and a new Respondent Aunt being substituted.  Both parties have been filing new pleadings, making additional assertions and arguments for the court to consider.  To date, the court has not yet rendered a new decision on the Respondent Aunt’s current retention of the child in New York.  In its most recent proceedings, the court requested a member of the International Hague Network of Judges in the United States to prevail upon their Italian counterpart for additional information about ameliorative measures that exist in Italy if the child were returned, including the posture of the custody litigation in Italy, the potential for social services to be involved, and the intervention by family in Italy to care for the child in lieu of foster care.  Right now, the parties are hurling various allegations against one another, but the judge has not made any factual findings or rendered a new opinion on the Petitioner Father’s request to return the child to Italy.

Therefore, to date, it appears from the cases that have been heard since Golan v. Saada, judges are recognizing their discretion to consider ameliorative measures, and are doing so when counsel/a party presents evidence of such a measure or it is obviously suggested by the circumstances in the case, including when there are allegations of domestic violence.  A consideration of ameliorative measures is not a foregone conclusion that the child will be returned.  Competent counsel has been tending to raise ameliorative measures as soon as a Respondent Parent asserts a grave risk argument, meaning that the grave risk and ameliorative measures are routinely considered at the same trial as part of a full analysis.  It also seems that judges will become more accustomed to using the resources available to them, namely the Central Authorities and International Hague Network of Judges, to gather information about ameliorative measures.