On June 15, 2022, the U.S. Supreme Court issued its opinion holding that, under the Hague Convention on the Civil Aspects of International Child Abductions, courts are not categorically required to consider “ameliorative measures” that would facilitate returning a child to their country of habitual residence despite a grave risk of the child’s exposure to harm upon return.
Cleary Gottlieb, on behalf of Child Justice Inc., Prevent Child Abuse New York, and Professor Jennifer Baum, filed an amicus brief in January 2022 in support of the petitioner, Narkis Golan. The brief focused on the argument that, in cases involving domestic violence, an ameliorative measures analysis that serves as the basis to return a child under the Hague Convention often leaves the child at grave risk of exposure to harm, in part because the risk cannot be adequately ameliorated.
In a unanimous opinion written by Justice Sonia Sotomayor, the court explained that the U.S. Court of Appeals for the Second Circuit rule mandating consideration of ameliorative measures is atextual, as such a requirement is nowhere to be found in both the Convention and its domestic implementing legislation. Rather, district courts retain the discretion to determine whether to consider ameliorative measures upon a finding of grave risk. The Court noted, however, certain guiding principles for the exercise of district court discretion, including that courts should prioritize the child’s physical and psychological safety, avoid delving into issues that usurp the role of the court that will adjudicate the custody dispute, and act expeditiously. The Court also acknowledged that domestic violence may constitute “an obvious grave risk to the child’s safety that could not readily be ameliorated” and vacated and remanded for further proceedings consistent with the opinion.
Read the child advocacy amicus brief filed in support of Ms. Golan here. Read the Supreme Court’s opinion here.