In their classic song, “The Long and Winding Road,” the Beatles famously sang: “The long and winding road that leads to your door will never disappear, I’ve seen that road before, it always leads me here, leads me to your door …” Commentary on the recent U.S. Supreme Court’s decision in Golan v. Saada, 596 U.S. ___, 142 S. Ct. 1880 (2022), rightfully celebrates the unanimity of that court on an issue at the end of a term which was replete with many disquieting examples of the deep divisions among the members of its bench. Here, Justice Sonia M. Sotomayor, writing for an undivided court, in interpreting the Hague Convention on the Civil Aspects of International Child Abduction as implemented by the International Child Abduction Remedies Act (ICARA) 22 U.S.C. §9001 et seq., held that a court which finds the return of a child to its country of habitual residence would expose that child to “grave risk of harm” is not then required to examine all possible “ameliorative measures” prior to denying a parent’s petition for return of that child to a foreign nation. Although the Supreme Court had the final say on what the law requires, it remanded the matter to the District Court to exercise its discretion and to apply “the proper legal standard” as now enunciated by the Supreme Court.
Notably, the remand bypassed the U.S. Court of Appeals for the Second Circuit, one of several Circuit Courts of Appeals that imposed an interpretation of ICARA “which improperly weighted the scales in favor of return” by requiring District Courts, after finding a grave risk of harm if the child were to be returned to their country of habitual residence, to consider all ameliorative measures that are available in that country regardless of the effectiveness or adequacy of those measures, if and when they are applied. Further, of striking importance was Justice Sotomayor’s concluding statement that:
“Remand will as a matter of course add further delay to a proceeding that has already spanned years longer than it should have. The delay that has already occurred, however, cannot be undone. This Court trusts that the District Court will move as expeditiously as possible to reach a final decision without further unnecessary delay. The District Court has ample evidence before it from the prior proceedings and has made extensive factual findings concerning the risks at issue. Golan argues that the ameliorative measures ordered intrude too greatly on custodial determinations and that they are inadequate to protect [the child’s] safety given the District Court’s findings that Saada is unable to control or take responsibility for his behavior. The District Court should determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to [the Child], bearing in mind that the [Hague] Convention set as a primary goal the safety of the child.”
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