Case Update (2020): Saada v. Golan; ameliorative measures, grave risk of harm under the Hague Abduction Convention, guarantees of performance

The Second Circuit addressed a 2nd appeal in the Saada v. Golan case on October 28, 2020, and affirmed Judge Donnelly's May 5, 2020 order to return the minor child to Italy.  As a reminder, this family has been litigating the father's Hague Abduction Convention return petition up and down the second circuit for a few years.  The original trial yielded a finding that the child would be subject to a grave risk of psychological harm if returned to Italy, but the court fashioned certain "undertakings" to nonetheless make the child's return possible.  The mother, Ms. Golan, appealed.  The Second Circuit acknowledged that any undertakings had to be enforceable, and it remanded the matter to Judge Donnelly for further review of what ameliorative measures can and should be put in place that would enable a safe return.  After 9 months, Judge Donnelly again ordered the child returned, and altered the ameliorative measures.  In those 9 months, additional things had happened in Italy that gave Judge Donnelly assurances.  Ms. Golan appealed again.  

In this second appeal, the court reaffirmed the rule that "[a] district court that finds a grave risk of harm 'must examine the full range of options that might make possible the safe return of a child' before denying repatriation."  "This rule 'honor[s] the important treaty commitment to allow custodial determinations to be made - if at all possible - by the court of the child's home country.'" [citations omitted] A district court may rely only on "ameliorative measures that are either enforceable by [the court] or ... supported by other sufficient guarantees of performance." 

The trial court's conclusion that an Italian domestic violence protective order, coupled with a $150,000 payment from father to mother before the child is returned, ameliorate the grave risk and have sufficient guarantees that the father will perform resulted in no clear error.