Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) [Italy] [Grave risk of harm] [undertakings]

        In Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) Respondent-Appellant Narkis Aliza Golan (“Ms. Golan”) appealed from an order granting Petitioner-Appellee Isacco Jacky Saada’s (“Mr. Saada”) petition for the return of the parties’ minor child, B.A.S., to Italy. the United States Court of Appeals, agreed with the District Courts habitual residence determination but held that it erred in granting Mr. Saada’s petition because the most important protective measures it imposed were unenforceable and not otherwise accompanied by sufficient guarantees of performance. The District Court’s March 22, 2019 order was v affirmed in part and vacated in part and remanded for further proceedings concerning the availability of alternative ameliorative measures.

  On June 13, 2014, Ms. Golan, a United States citizen then living in New York, and Mr. Saada, an Italian citizen and resident, met at a wedding in Milan, Italy. Approximately two months later, Ms. Golan relocated to Milan and moved in with Mr. Saada. The parties were married on August 18, 2015, and Ms. Golan became pregnant shortly thereafter. The couple’s only child, B.A.S., was born in Milan in June 2016. The couple “fought frequently,” and “Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan.” Mr. Saada yelled at Ms. Golan, called her names, slapped her, pushed her, pulled her hair, threw a glass bottle in her direction, and, during a conversation with Ms. Golan’s brother, threatened to kill her. These incidents, many of which occurred in the presence of B.A.S., “were not sporadic or isolated ... but happened repeatedly throughout the course of the parties’ relationship.” Mr. Saada and Ms. Golan continued living together in Milan after B.A.S. was born. They secured for B.A.S. an Italian passport, medical coverage, identification cards, and a certificate of residence, and enrolled B.A.S. in a local daycare. With the exception of several trips abroad, B.A.S. lived continuously in Milan for the first two years of his life. In July 2018, Ms. Golan traveled with B.A.S. to the United States to attend her brother’s wedding. After the wedding, Ms. Golan elected not to return to Italy and moved with B.A.S. to a confidential domestic violence shelter in New York. In Fall 2018, Mr. Saada filed a criminal complaint against Ms. Golan and initiated civil proceedings, including custody proceedings, in Italy. He also commenced this action under the Hague Convention. 

        The District Court first concluded that Italy was B.A.S.’s habitual residence for the purposes of the Hague Convention. The District Court acknowledged that Ms. Golan had repeatedly expressed an intent to return to the United States, and that Mr. Saada was aware of this intent. In the District Court’s view, however, the totality of the circumstances, and, in particular, Ms. Golan’s conduct, “established B.A.S. as a[n] habitual resident of Italy.”  The District Court determined that Ms. Golan had established that repatriating B.A.S. to Italy would expose him to a grave risk of harm. It concluded that exposing B.A.S. to severe and continuing domestic violence of the type documented in this action could have significant adverse effects on his psychological health and development. 

        Nevertheless, the District Court held that a suite of conditions, or “undertakings,” would “sufficiently ameliorate the grave risk of harm to B.A.S.” and granted Mr. Saada’s petition subject to those conditions. The undertakings included, among others, requirements that Mr. Saada (1) give Ms. Golan $30,000 before B.A.S. is returned to Italy, for housing, financial support, and legal fees; (2) stay away from Ms. Golan; and (3) visit B.A.S. only with Ms. Golan’s consent.

The Second Circuit observed that in determining habitual residence, courts in this Circuit “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared,” considering both “actions” and “declarations.” It has also cautioned that, at bottom, this inquiry “is designed simply to ascertain where a child usually or customarily lives.” It saw no error in the District Court’s conclusion that Italy was B.A.S.’s country of habitual residence. It agreed with the District Court that the parties’ actions demonstrated that Italy, where B.A.S. spent almost the entirety of the first two years of his life, was the country where he “usually or customarily lives.” Accordingly, it affirmed the District Court’s habitual-residence determination.

        Ms. Golan challenged the District Court’s decision to grant Mr. Saada’s petition notwithstanding its determination that repatriating B.A.S. would expose him to a grave risk of harm. The Second Circuit indicated that even where the abducting parent establishes that repatriating his or her child would expose the child to a grave risk of harm, a district court “is not necessarily bound to allow the child to remain with the abducting parent.” In exercising their discretion in such cases, district courts must “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” Insofar as certain of these measures might be undertaken by courts in the country of habitual residence, then “the exercise of comity that is at the heart of the [Hague] Convention” requires us “to place our trust in th[ose] court[s] ... to issue whatever orders may be necessary to safeguard children who come before [them].” However, “reviewing courts are free to enter conditional return orders” but “retain no power to enforce those orders across national borders.” In those instances, in which our courts lack jurisdiction to redress non-compliance, “even the most carefully crafted conditions of return may prove ineffective in protecting a child from risk of harm.” It concluded that  in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other “sufficient guarantees of performance.” The Court found that many of the undertakings the District Court imposed were unenforceable because they need not—or cannot—be executed until after B.A.S. was returned to Italy. This included several conditions that, under the circumstances, were essential to mitigating the grave risk of harm B.A.S. faced, namely, promises by Mr. Saada to stay away from Ms. Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Ms. Golan’s consent. The District Court’s factual findings provided ample reason to doubt that Mr. Saada would comply with these conditions. Under the circumstances, it was not convinced that these particular undertakings were sufficient to mitigate the undisputed grave risk of harm that B.A.S. faced if returned to Italy. It vacated the District Court’s order insofar as it granted Mr. Saada’s petition subject to the conditions enumerated therein.

        The Court found it appropriate to remand for further proceedings concerning the availability of alternative measures. It directed that on remand, the District Court must determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance. In doing so, the District Court may consider, among other things, whether Italian courts will enforce key conditions such as Mr. Saada’s promises to stay away from Ms. Golan and to visit B.A.S. only with Ms. Golan’s consent. It did not think that international comity precluded district courts from ordering, where practicable, that one or both of the parties apply to courts in the country of habitual residence for any available relief that might ameliorate the grave risk of harm to the child. So long as the purpose of such an order is to ascertain the types of protections actually available, and the district court does not condition a child’s return on any particular action by the foreign court, there is little risk that this “practice would smack of coercion of the foreign court.” Here, the District Court has already found that Italian courts are authorized by Italian law to enter “criminal and civil court orders of protection” and “orders of supervised visitation during the pendency of custody proceedings.” Although the Italian courts had not entered any such orders to date, this might be attributable in part to the parties’ failure to apply for relief, in the ongoing custody proceedings or otherwise. It directed that on remand, the District Court may consider whether it is practicable at this stage of the proceedings to require one or both of the parties to do so. The District Court may then take into account any corresponding decision by the Italian courts in determining whether there are sufficient guarantees of performance of protective measures that will mitigate the grave risk of harm B.A.S. faces if repatriated. As an initial matter, the District Court can attempt to revise certain of the undertakings it imposed in a manner that would render them directly enforceable, for example, by requiring Mr. Saada to comply with the condition before B.A.S. is repatriated. In addition, the District Court can use its “broad equitable discretion” to “request [] the aid of the United States Department of State, which can communicate directly with” the government of Italy to ascertain whether it is willing and able to enforce certain protective measures. Finally, the District Court can solicit from the party’s additional evidence concerning whether, and, if so, to what extent, Mr. Saada had undertaken to abide by any of the currently unenforceable conditions. 
 
The Second Circuit summarized its holdings with regard to undertakings as follows: (1) In cases in which a court has determined that repatriating a child will expose him or her to “a grave risk of harm,” unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other sufficient guarantees of performance. (2) Because the record before the District Court did not support the conclusion that there exist no protective measures sufficient to ameliorate the grave risk of harm B.A.S. faces if repatriated, remand for further proceedings is appropriate. 32) Where, as here, the safety of a minor is at risk, the District Court, if it deems practicable, may direct one or both of the parties to petition Italian courts for the imposition of any appropriate protective measures. The District Court may take into account any corresponding decision by the Italian courts in determining whether to issue an order of return.