Judges are contemplating the aim of the Hague Conference in worldwide youngster custody disputes

ARGUMENT ANALYSIS

By Amy Howe

on March 28, 2022
at 10:25 a.m

Karen King argues on behalf of Narkis Golan. (art lien)

On Tuesday, judges considered what obligations, if any, US courts have to consider measures that could reduce the risk of harm when a kidnapped child is returned to the country where he lives. The hearing in Golan v. Saada was the latest case in which judges were asked to interpret the Hague Convention on the Civil Aspects of International Child Abduction, an international convention adopted in 1980 to deal with international child abduction in domestic disputes. During deliberation, which lasted just over 80 minutes, the judges sought a solution that would set standards for lower courts, but would also result in cases being resolved quickly – a truly difficult task, especially in domestic violence cases.

Under the Hague Convention, children who are wrongfully abducted from the country where they live must be returned to that country for custody disputes to be resolved there. The rationale behind this mandate is that a parent should not gain any advantage in a custody dispute by abducting the child and taking it to another country. However, the Convention provides an exception to this general return requirement in cases where there is a “serious risk” that the return of the child would expose the child to physical or mental harm.

A federal court in New York ruled that the son of an American mother, Narkis Golan, and an Italian father, Isacco Saada, would be at such risk if brought back to Italy, where he was born in 2016 and lived until his mother returned with him to the United States in 2018 because Saada had been abusive towards Golan throughout the couple’s marriage. But under the law of the US Court of Appeals for the 2nd Circuit, the trial court was also required to consider measures that would reduce that risk, and in this case the trial court ordered the return of the child, known as BAS, to Italy with a variety of measures to protect it. Golan came to the Supreme Court last year and asked the judges to review her case.

Attorney Karen King, representing Golan, argued that the 2nd Circuit requirement that the courts must “consider the full range of potential corrective measures and, if possible, return the child” is wrong because, among other things, it lacks a basis in the text of the Convention and contradicts the aim of the Convention to return abducted children promptly. If the Supreme Court agrees, King told the judges, he should overturn the Second Court ruling and BAS – who she noted is “almost six years old” and “has lived most of his life in legal limbo.” ‘ – ‘give’ the safe and quick closure it deserves.’

Judge Elena Kagan suggested that the King’s Rule may be using the wrong analysis. King, Kagan noted, formulated the court’s job as a two-stage inquiry, first examining whether the child was at serious risk if brought back, and then, if so, whether there were measures to mitigate that could risk. But wouldn’t it be a better approach, Kagan asked, to include risk mitigation measures as part of the initial investigation into whether there is a serious risk?

King acknowledged that there was “some overlap in the investigation,” but she insisted that the two analyzes should essentially be separate. “If you combine the two,” she claimed, “you run the risk of making this process extremely protracted and dealing with issues that a Hague accelerated procedure should not deal with.”

Chief Justice John Roberts saw the problem differently. Two separate analyses, he claimed, would take longer. Roberts reiterated his concerns about the delay later in the argument when Frederick Liu, the assistant US attorney general, arguing on behalf of the federal government, asked the judges to remit the case to the trial court, which would then reconsider whether BAS without the 2nd Circuit’s presumption that he should consider all possible measures to facilitate his return is at serious risk.

Judge Neil Gorsuch echoed Roberts’ concerns. The trial court found there was a serious risk of injury after a nine-day trial, he noted. If the judges agree that the 2nd Circuit rule is too rigid, Gorsuch told Liu, why wouldn’t the best course of action be to simply overturn the Court of Appeals and rule that the child is allowed to remain in the United States? which “would at least allow the parties in this case to go on with their lives?”

Judge Sonia Sotomayor noted that the primary objective of the Convention, in addition to the objective of expedited procedure, is “the intention to return a child to his or her habitual residence”. Courts “can’t just eliminate that target” if they find a high risk of repatriation, Sotomayor stressed.

Judge Samuel Alito rejected the idea that trial judges could use their discretion to decide whether to return a child to a country where they would be at serious risk of harm. But if that’s the case, Alito continued, the courts need standards to guide their decision, even if the bright line rule introduced by the 2nd Circuit “went too far.”

Judge Stephen Breyer expressed similar concerns. He told King that despite the convention’s preference for the child’s return, “there will be a tendency to keep the child here” if the judge finds her at risk of harm at home. “And I think what the 2nd Circle wants to say with its clear rule,” Breyer suggested, “is to remember the overall purpose” of the convention. If so, Breyer King asked, what rule could the Supreme Court issue that would serve the same purpose without the “overkill” of the 2nd Court rule?

Judge Brett Kavanaugh asked Liu whether risk-reduction measures should be possible in domestic violence cases like this one. Although Golan claims that such measures “will almost never be appropriate in the context of domestic violence,” Liu declined to support a clear rule, noting that “even cases of domestic violence vary in terms of their facts and circumstances.” “.

Arguing on behalf of Saada, attorney Richard Min told the judges that the 2nd Circuit’s categorical rule best advances the purpose of the convention and “ensures consistent outcomes here in the United States and expectations for U.S. children abducted abroad by Gives courts clear guidance on how to assess this expectation that children will be returned to their country of origin.

Roberts, who previously expressed concern about possible delays in considering risk reduction measures, noted that the Convention says nothing at all about risk reduction measures. Instead, he pointed out, it merely suggests that a trial judge can refuse to return a child who would be at serious risk in his own country.

Just as he had done with King, Breyer urged Min to articulate what rule the Supreme Court should make. Min stressed that even if the trial court has to consider risk mitigation measures, its investigation can be relatively limited. He noted that “there is a difference between considering improvement actions and implementing them”. And a court can consider risk mitigation measures very quickly — almost instantaneously, in fact, Min suggested. Furthermore, he added, “the jurisprudence of the Second Federal Court is very clear that cases in the past have not been remanded in custody” simply because the court proceedings have not considered all possible risk reduction measures.

Gorsuch then asked Min whether courts under his rule are required to consider risk mitigation measures that could allow the child’s return, even if neither parent suggests it. According to Gorsuch, isn’t that “the fundamental problem with the procedure of the 2nd circuit” – that it “suggests that the district court itself must examine measures”?

Min pushed back a little, countering that the court must consider “obvious, easily accessible remedies available,” even if the parents wouldn’t necessarily suggest them. But in general, he suggested, the court would only have to consider the risk-reduction measures proposed by the parents, and the burden would fall on the parent resisting the child’s return to “overcome the presumption that the courts in the system were capable.” are to protect children.” And considering risk reduction measures, Min added, would not take any extra time, regardless of whether the consideration is mandatory or voluntary.

Judge Amy Coney Barrett outlined a roadmap for a possible resolution. “Would it really be that bad,” she asked Liu, “if we sent it back, offered something along the lines of guidance, even if it just said, yes, the county courts have discretion that should be exercised consistent with federal law.” and convention. However, she continued, “Given these concerns and how often they are present in domestic violence cases, before proceeding with them in this context, be cautious?”

A decision on the case is expected by summer.

This article was originally published by Howe on the Court.