Case Update: Undertakings to Ameliorate a Grave Risk and the 1980 Convention
In 2019, the 2nd Circuit Court of Appeals addressed the issue of undertakings in a 1980 Hague Child Abduction Convention case. In the case of Saada v. Golan, 930 F.3d 533 (2nd Cir 2019), a mother was accused of wrongfully retaining the parties’ minor child in New York after visiting for a family wedding. The mother argued it would be a grave risk of harm to the minor child if the child were returned to Italy. The U.S. District Court for the Eastern District of New York found that, with certain undertakings, the risk could be ameliorated, and the child should nonetheless be returned. The undertakings included such things as the father giving the mother money before the child was returned for housing, that the father agree to stay away from the mother after the return, and that the child only visit with the father with the mother’s consent (of course, pending an appropriate custody resolution in Italy). The 2nd Circuit expressed concern that certain undertakings, particularly those that might need to occur in the habitual residence (i.e., Italy) would require an exercise of comity by the foreign court to enforce them. The Court concluded that “unenforceable undertakings are generally disfavored, particularly when there is reason to question whether the petitioning parent will comply with the undertakings and there is no other sufficient guarantees of performance[,]” and stressed that, on remand, the ED NY should look for enforceable measures to allow the child to return.
On May 5, 2020, Judge Ann Donnelly (case no. 1:18-cv-5292 (AMD) (SMG)), after 9 months of scrutiny and examination, concluded that the Italian courts would be able to protect the minor child, and the child must be returned to Italy. Of most importance, on December 12, 2019, the Italian court issued a custody order that imposed a series of safety measures for the child, and a finding that the father was violent towards the mother, at times in front of the child. The mother argued the Italian order did not go far enough and that the father would not abide by it anyway. Judge Donnelly, however, affirmed that she has every confidence that the Italian legal system is able to enforce its orders. Judge Donnelly did impose a financial undertaking of $150,000 that the father must pay to the mother before the child returns to pay the mother’s expenses for a full year to ensure the child’s interim stability.
Finally, the mother argued that after the original trial, a representative of the New York City schools and a psychologist evaluated the child and diagnosed him with "mild Autism Spectrum Disorder" and "clinically significant difficulties in executive functioning skills” with" average non-verbal cognitive capabilities." She claims that Italy is unable to provide the child with sufficient services. Unfortunately these diagnoses, coupled with the Italian court order that the child is to be evaluated when he returns to Italy, are not grave risks.