In Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) ( not selected for publication) Respondent-Appellant Narkis Aliza Golan appealed the district court’s order granting the petition of Isacco Jacky Saada for the return of their son, B.A.S., to Italy. The district court granted Saada’s petition after determining that there were adequate ameliorative measures that remedied any grave risk of harm to B.A.S. upon his return to Italy. In Golan’s earlier appeal, the court ruled that the district court’s initial order failed to adequately remedy the grave risk of harm to B.A.S. that the court found would result from B.A.S.’s return to Italy. Saada v. Golan, 930 F.3d 533, 540 (2d Cir. 2019) (Saada II). It remanded the case to allow the district court to determine if other ameliorative measures were available to remedy that risk of harm and could be “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” On remand, the district court sought out such measures, found the measures to be satisfactory, and granted Saada’s petition. Finding no clear error in the district court’s factual determinations, and concluding that those facts support its judgment, the Second Circuit affirmed.
Isacco Saada and Narkis Golan wed in Milan in August 2015. They had a son, B.A.S., the next June and lived in Milan for the first two years of his life. In July 2018, Golan traveled with B.A.S. to the United States for a wedding, and they have remained in the United States since that time. The district court determined that Italy was B.A.S.’s country of habitual residence for the purposes of the Hague Convention. It affirmed in the initial appeal. Saada’s relationship with Golan was abusive almost from its inception. The district court found that Saada would yell, slap, hit, and push Golan. He would call her names and pull her hair. He once threw a glass bottle at her and also threatened to kill her. This abuse often occurred in B.A.S.’s presence. The district found, based on expert testimony, that Saada’s abuse of Golan had and could continue to have severe effects on B.A.S.’s psychological health. The district court noted that Saada, at that point, had not demonstrated an ability to change his behavior or to control his anger. . As a result, the district court concluded that returning B.A.S. to Italy would subject him to a grave risk of psychological harm, and therefore the Hague Convention did not require that the district court order B.A.S.’s return. That conclusion, however, did not end the analysis. Circuit precedent required the district court to determine if there were any ameliorative measures, or “undertakings,” it could impose on Saada that would eliminate the grave risk of harm to B.A.S. and allow the court to return B.A.S. back to Italy. (citing Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (Blondin I)). The court decided that it could mitigate the grave risk by ordering Saada, inter alia, to pay Golan $30,000, to stay away from her in Italy, and to visit B.A.S. only with Golan’s consent. These measures were vacated on appeal as inadequate. Saada II, 930 F.3d at 540. The Court ruled that to eliminate a grave risk of harm, the ameliorative measures must be either enforceable by the district court or supported by other sufficient guarantees of performance. Because the district court could not enforce its instructions regarding Saada’s distance from Golan and visits with B.A.S. once the parties were in Italy—and there were no other guarantees of performance—the district court’s order did not adequately ameliorate the grave risk of harm to B.A.S. It remanded the case for the district court to determine if any other enforceable or sufficiently guaranteed ameliorative measures were available. It invited the district court to consider whether Italian courts could issue orders that prohibited Saada from approaching Golan or visiting B.A.S. without her consent. On remand, the district court communicated with Italian authorities to determine whether they could issue a protective order requiring Saada to stay away from Golan and to attend therapy. The district court then instructed the parties to petition the Italian courts for such an order. The parties complied. An Italian court entered an order requiring, inter alia, that (1) Saada not approach Golan, her place of work or residence, or B.A.S.’s school; (2) B.A.S. be entrusted to Italian social services and placed with Golan for residence; (3) Saada visit B.A.S. only in a neutral space under observation by Italian social services; and (4) Italian social services evaluate Saada and initiate psychological counseling for him. This protective order will run for one year from when Golan and B.A.S. arrive in Italy and is renewable. In light of these developments, the district court granted Saada’s petition to return B.A.S. to Italy. Saada v. Golan, No. 118-CV-5292, 2020 WL 2128867, at *6 (E.D.N.Y. May 5, 2020) (Saada III). The district court noted that Saada had complied with previous social service investigations in Italy and that he had he abided by all conditions of his supervised visits with B.A.S. in the United States. Combined with the consequences Saada would face for violating the Italian protective order, the district court concluded that these findings provided it with sufficient confidence that Saada would comply with that order. Additionally, the district court indicated that the psychological counseling mandated by the Italian court could reduce Saada’s abusive tendencies. The district court also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Taken together, the district court concluded, these measures ameliorated the “grave risk of harm to B.A.S.” that could result from “exposure to violence between” Saada and Golan. In making its decision, the court also noted the absence of “evidence in the record that [Saada] was abusive to B.A.S. or that B.A.S. would be unsafe with [Saada].”
The Second Circuit employed a clear error standard to assess the district court’s findings that Saada would comply with the Italian court order and that the $150,000 payment to Golan would meet her and B.A.S.’s needs until a custody arrangement was concluded. It then determined de novo if, given those conclusions, the protective measures adequately ameliorate the “grave risk of harm” to B.A.S..
The Court observed 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. Blondin II, 238 F.3d at 163 n.11. 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.” However, a district court may rely only on “ameliorative measures that are either enforceable by [it] or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. In this case, the district court found that “exposure to violence” perpetuated by Saada against Golan posed a “grave risk of harm to B.A.S.” Saada III, 2020 WL 2128867, at *2.1 After taking steps to ensure that a protective order from the Italian courts would be in place upon the return of B.A.S. to Italy, however, the district court subsequently found that this Italian protective order coupled with a $150,000 payment from Saada to Golan ameliorated that risk. Id. at *2-6. These measures, if effective, will ensure that Saada and Golan are not in the same place.2 This separation, in turn, protects B.A.S. from any trauma that would result from abuse that Saada might perpetrate against Golan if they were together, and therefore ameliorates the grave risk of harm to B.A.S. *4 These measures are “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. The district court can enforce its order that Saada must make the $150,000 payment before B.A.S. is repatriated. And the existing Italian protective order and ongoing involvement of the Italian courts with this case provides sufficient assurance that Saada will not approach Golan in Italy. See id. at 541 n.33 (“In most cases, the international comity norms underlying the Hague Convention require courts in the United States to assume that an order by a foreign court imposing protective measures will guarantee performance of those measures.”).
Golan argued that this case presents a circumstance in which “even a foreign court order might not suffice,” because Saada will not comply with the Italian protective order. Given the record it did not have a “definite and firm conviction that a mistake has been committed” by the district court. Souratgar, 720 F.3d at 103. Saada has shown an ability to follow rules in related contexts and knows the Italian court will police his activities and punish him for violations. The district court, therefore, did not clearly err in determining that Saada will likely comply with the Italian protective order. In light of this finding, the district court correctly concluded that there existed sufficiently guaranteed ameliorative measures that would remedy the grave risk of harm to B.A.S. upon his return to Italy. It therefore properly granted Saada’s petition.
In a footnote the Court pointed out that ‘[d]enying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases.’ ” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1).
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