Recent SCOTUS Opinion Involving United States Citizen Who Believed Return of Child to Italy Posed Grave Risk of Harm
In the case of Golan v. Saada, the U.S. Supreme Court issued a unanimous opinion authored by Justice Sonia Sotomayor, in which the Court ruled that U.S. Courts can refuse to return children to their home countries where there is a risk of harm without considering all ameliorative measures that could potentially reduce that risk of harm.
The facts involved a female U.S. citizen who met an Italian citizen while attending a wedding in Italy. She soon moved to Italy and married the Italian citizen. A child was born shortly thereafter and the family lived together in Italy for the first two years of the child’s life.
The Parties’ relationship was characterized by violence from the beginning, with near daily arguments and physical altercations. Though the abuse was not directed toward the child, it often occurred in front of the child. When the Mother returned to the United Stated to attend her brother’s wedding, she did not return to Italy and instead, she and the child moved into a domestic violence shelter.
The Hague Convention on the Civil Aspects of International Child Abduction allows a court to order a child’s return to his or her country of habitual residence where a child has been wrongfully removed. However, a child may not be required to return if the return would expose the child to a “grave risk” of physical or psychological harm or otherwise place the child in an intolerable situation.
The Father filed a petition under the Convention for the return of the child to Italy. Though the lower courts found grave risk of harm to the child, the lower courts considered it necessary to consider the full range of options to allow for the possible safe return of the child to Italy.
The U.S. Supreme Court found that nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in a court’s decision of whether to grant or deny return of a child to his or her home country. The two questions of whether a grave risk of harm exists and whether any ameliorative measures are available are separate questions. Courts should not elevate the return of the child above the Convention’s other objectives, like ensuring the safety of children.
The U.S. Supreme Court held that 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 county once the court has found that return would expose the child to a grave risk of harm. A court may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations reserved for custodial proceedings, or risk overly prolonging return proceedings. Courts may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. The U.S. Supreme Court remanded the case back to the lower court to determine whether to order return of the child to Italy after making a finding of grave risk.
On remand in the lower court, the Parties agreed to an expedited briefing schedule and the court heard oral arguments. On August 31, 2022, the lower court ordered the return of the minor child to Italy, emphasizing the ameliorative measures in place, finding that the Italian courts examined extensive case documentation from the Hague proceedings and made findings of physical and psychological violence. The court noted that the Italian court issued a protective order in favor of the mother and child and instituted other measures, including evaluations, involvement with social services, and supervised visitation. The court further noted the fact that the violence was not directed at the minor child, the minor child had a loving relationship with his father, and Italy has been able to protect the child.
