Written by Mayela Celis, UNED

The oral arguments of the case Golan v. Saada (20-1034) will take place tomorrow (Tuesday 22 March 2022) at 10 am Washington DC time before the US Supreme Court. For the argument transcripts and audio, click here. The live audio will be available here.

We have previously reported on this case here and here.

“QUESTION PRESENTED

The Hague Convention on the Civil Aspects of International Child Abduction requires return of a child to his or her country of habitual residence unless, inter alia, there is a grave risk that his or her return would expose the child to physical or psychological harm. The question presented is:

Whether, upon finding that return to the 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.” (our emphasis)

Please note that US courts often use the terms “ameliorative measures” and “undertakings” interchangeably (as stated in the petition). Also referred to as protective measures in other regions.

This case stems from the fact that there is a split in the US circuits (as well as state courts).

There were several amicus curiae briefs filed, three of which are worthy of note: the amicus brief of the United States, the amicus brief of Hague Conventions delegates Jamison Selby Borek & James Hergen and finally, the amicus brief filed by Linda J. Silberman, Robert G. Spector and Louise Ellen Teitz.

The amicus brief of the United States stated:

“Neither the Hague Convention on the Civil Aspects of International Child Abduction nor its implementing legislation requires a court to consider possible ameliorative measures upon finding under Article 13(b) that there is a grave risk that returning a child to his country of habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Rather, the Convention and ICARA leave consideration of possible ameliorative measures to a court’s discretion.”

The amicus brief of the Hague Delegates coincide with this statement of the United States, while the brief of professors Silberman, Spector and Teitz holds the opposite view.

As is well known, the US Executive Branch’s interpretation of a treaty is entitled to great weight. See Abbott vs. Abbott 560 U. S. _ (2010); Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176.

In my personal opinion, the position taken by the United States is the correct one.

The fact is that the Hague Abduction Convention is silent on the adoption of ameliorative measures. Article 13 indicates: “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that […]” (our emphasis). The discretion of the court is thus key. Besides, and as we all aware, the Child Abduction Convention is not a treaty on recognition and enforcement of protective measures.

In some legal systems, this void has been supplemented with additional legislative measures such as the Brussels II ter Regulation (2019/1111) in the European Union. Importantly, this instrument provides for the seamless enforcement of  provisional – including protective – measures, which makes it a much more cogent system (see, for example, recitals 30, 45 and 46, and articles 2(1)(b), 15 – on jurisdiction-, 27(5), 35(2) and 36(1)). And not to mention the abolition of the declaration of enforceability or the registration for enforcement, which speeds up the process even more.

Furthermore, and particularly in the context of the United States, the onus that ameliorative measures exist or could be made available should be placed mainly on the parties requesting the return, and not on the court. See the amicus brief filed by former US judges where they stressed that “mandating judicial analysis of ameliorative measures forces US courts beyond their traditional jurisdiction and interactions with foreign law / civil law judges perform investigatory functions; common law judges do not.”

Arguably, the 13(1)(b) Guide to Good Practice may be read as supporting both views. See in particular:

See paragraph 36: “The examination of the grave risk exception should then also include, if considered necessary and appropriate, consideration of the availability of adequate and effective measures of protection in the State of habitual residence.” (our emphasis).}

See paragraph 44: “Protective measures may be available and readily accessible in the State of habitual residence of the child or, in some cases, may need to be put in place in advance of the return of the child. In the latter case, specific protective measures should only be put in place where necessary strictly and directly to address the grave risk. They are not to be imposed as a matter of course and should be of a time-limited nature that ends when the State of habitual residence of the child is able to determine what, if any, protective measures are appropriate for the child. In certain circumstances, while available and accessible in the State of habitual residence, measures of protection may not be sufficient to address effectively the grave risk. An example may be where the left-behind parent has repeatedly violated protection orders.” (our emphasis)

But see in contrast paragraph 41 of the Guide, which was mentioned in the amicus brief of Child Abduction Lawyers Association (CALA).

Putting this legal argument aside, and in the context of the United States, there are several reasons why US courts should not be required to consider ameliorative measures (but may do so on a discretionary basis):

• The United States is not a Contracting Party to any global treaty that would allow the recognition and enforcement of protective measures (such as the 1996 Hague Protection of Children Convention – USA is only a signatory State);
• A great number of child abductions occur to and from the United States and Mexico. The Mexican legal system is not familiar with the recognition and enforcement of undertakings or with adopting mirror orders in the context of child abduction (or in any other context for that matter);
• Requiring courts to look into ameliorative measures in every single case would unduly delay abduction proceedings;
• Social studies have revealed that undertakings are very often breached once the child has been returned (usually with the primary carer, the mother), which has the direct result of leaving children and women in complete vulnerability. See Lindhorst, Taryn, and Jeffrey L Edleson. Battered Women, Their Children, and International Law : The Unintended Consequences of the Hague Child Abduction Convention. Northeastern Series on Gender, Crime, and Law. Boston, MA: Northeastern University Press, 2012. See also amicus brief of domestic violence survivors.

In conclusion, I believe that we all agree that ameliorative measures (or undertakings) are important. But they must be adequate and effective and should not be adopted just for the sake of adopting them without any teeth, as this would not be in the best interests of the child (in concreto).