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Ameliorative Measures: The Fate of Saada v. Golan

Post Authored By: Shannon Luschen

Pending before the United States Supreme Court is a legal question asking whether, upon finding that return to a country of habitual residence places a child at grave risk, a District Court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding. 

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) requires signatory states to promptly return an abducted child to their state of habitual residence.  Often, these abducting parents will allege an affirmative defense to return, namely Article 13(b), that return to the country of habitual residence would place their child in grave risk of physical or psychological harm or otherwise place them in an intolerable situation.  Where this grave risk defense is found, judges still have the discretion to order the return of the child to their home country.  Certain circuits, including the 2nd circuit, requires courts to analyze “ameliorative measures,” and determine whether the judicial system in that home country can properly enforce “ameliorative” measures that would eliminate the harm of the child upon his or her return.  See Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 2013).  In assessing this inquiry, courts may impose “undertakings” on the parent seeking return of the child.  In other terms, courts may require the parents to make certain promises (i.e., providing sufficient child support to support the parent and child in the country; agreeing not to prosecute for the abduction, if possible; etc.) that would ensure the child’s protection in the country.

Ameliorative measures and undertakings, however, are notably absent from the plain text of the Hague Convention. For this reason, circuits across the country are split on the issue of whether to implement these in cases where grave risk of harm is found.  For instance, the 2nd, 3rd and 6th circuits require consideration of these measures, while the 7th and 11th circuits have declined to do so. 

Saada v. Golan

On January 26, 2021, Petitioner Narkis Golan filed a Petition for Writ of Certiorari asking the US Supreme Court to clarify whether ameliorative measures are necessary after a finding of grave risk of harm. 

In this case, Golan is an American mother who was the victim of serious domestic violence by her Italian Husband, Jacky Saada. In 2018, Golan and the minor child traveled to the United States for a wedding and stayed indefinitely after Saada threatened to kill Golan and deny her access to their son if she returned.  After failing to return to Italy, Saada filed a Petition for Return under the Hague Convention in the Eastern District of New York. 

After a two-week trial, the court found that return to Italy would put the child in grave risk of harm; however, the court ordered the parties to present certain ameliorative measures that would allow the child’s return, nonetheless.  Ultimately, the district court ordered the return based upon certain undertakings, i.e., Saada’s promises to say away from Golan and to attend therapy.  Golan appealed, and the court of appeals found that the district court lacked sufficient guarantees that Saada would uphold his promises.  On remand, the district court imposed new measures, namely requiring the parties to obtain an Italian protective order and order Saada to pay Golan $150,000 for living and legal expenses.  Golan appealed again, but it was affirmed by the court of appeals. In April 2021, the Acting Solicitor General was invited to file a brief in this case expressing the views of the United States.  If cert is granted, it is unclear what exactly those views may be. Ameliorative measures and undertakings – though well-intended – are fundamentally flawed in that the United States and its courts have virtually no power and ability to enforce said measures and undertakings in a foreign court.  Ultimately, these measures and undertakings are nothing more than unenforceable promises and wishful thinking, which may not be sufficient to actually protect the child in the home state once returned. While cert has not yet been granted (and it may never be), this is certainly an important legal issue that sure could use clarification from the nation’s highest court.

About The Author:

Shannon Luschen is an associate with Feinberg Sharma in Chicago, which focuses exclusively on family law matters. Shannon received her undergraduate degree at the University of Wisconsin-Madison undergrad and her J.D. at Chicago-Kent College of Law, where she graduated cum laude.

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