Amicus Curiae Brief — Narkis Aliza Golan, Petitioner v. Isacco Jacky Saada

No. 20-1034

IN THE

Supreme Court of the United States

NARKIS ALIZA GOLAN,

Petitioner,

v.

ISACCO JACKY SAADA,

Respondent.

On Writ Of Certiorari To

The United States Court Of Appeals For

The Second Circuit

BRIEF OF HAGUE CONVENTION DELEGATES

JAMISON SELBY BOREK & JAMES HERGEN

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

AMIR C. TAYRANI

Counsel of Record

KELLAM CONOVER

PHILIP HAMMERSLEY

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 887-3692

atayrani@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT ............................... 1

ARGUMENT .......................................................... 3

I. THE COURT SHOULD CONSIDER THE

CONVENTION’S HISTORY AND PURPOSE. ........ 3

A. This Court Often Interprets

Treaties In Light Of Their History

And Purpose. ........................................... 3

B. As Delegates, Amici Provide An

Authoritative Voice On The

Convention’s Negotiating History

And Purpose. ........................................... 6

II. THE DRAFTERS DID NOT INTEND TO

REQUIRE COURTS TO CONSIDER

AMELIORATIVE

MEASURES

WHEN

THERE IS A GRAVE RISK THAT RETURN

WOULD EXPOSE THE CHILD TO HARM. .......... 8

A. The Drafters Thoroughly Discussed

Every Provision Of Article 13. ................ 8

B. The Drafters Neither Discussed

Nor Adopted A Requirement To

Consider Ameliorative Measures. ........ 10

C. Requiring

Consideration

Of

Ameliorative Measures Conflicts

With The Drafters’ Aim To Protect

Children. ................................................ 12

D. Requiring

Consideration

Of

Ameliorative Measures Conflicts

With The Drafters’ Aim Of Prompt

Adjudication Of Return Petitions. ........ 15

CONCLUSION ..................................................... 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Abbott,

560 U.S. 1 (2010) ............................................. 3, 4

Blondin v. Dubois,

189 F.3d 240 (2d Cir. 1999) ................................ 5

Fujitsu Ltd. v. Fed. Express Corp.,

247 F.3d 423 (2d Cir. 2001) ................................ 5

GE Energy Power Conversion France SAS, Corp. v.

Outokumpu Stainless USA, LLC,

140 S. Ct. 1637 (2020) ......................................... 3

Jacquety v. Baptista,

538 F. Supp. 3d 325 (S.D.N.Y. 2021) ................ 17

Medellin v. Texas,

552 U.S. 491 (2008) ............................................. 3

Monasky v. Taglieri,

140 S. Ct. 719 (2020) ........................................... 4

Sale v. Haitian Ctrs. Council, Inc.,

509 U.S. 155 (1993) ............................................. 5

Societe Nationale Industrielle Aerospatiale v.

U.S. District Court for S. District of Iowa,

482 U.S. 522 (1987) ............................................. 4

Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694 (1988) ............................................. 5

Water Splash, Inc. v. Menon,

137 S. Ct. 1504 (2017) ......................................... 4

iii

Zicherman v. Korean Air Lines Co.,

516 U.S. 217 (1996) ....................................... 3, 12

Treaties

1980 Hague Convention on the Civil Aspects of

International Child Abduction,

Oct. 25, 1980, 1343 U.N.T.S. 89 ................passim

Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T.S. 331 ....................... 5

Other Authorities

Brigitte M. Bodenheimer, The Hague Draft

Convention on International Child

Abduction, 14 Fam. L.Q. 99 (1980) .................... 6

Comments of the Governments on Preliminary

Document No 6, in 3 Acts and Documents of

the Fourteenth Session, Child Abduction

(1982) ..........................................................passim

Convention Adopted by the Fourteenth Session

and Signed on the 25th of October 1980, in

3 Acts and Documents of the Fourteenth

Session, Child Abduction (1982) ..................... 8, 9

Hague Conference on Private International

Law, Enforcement of Orders Made Under the

1980 Convention—An Empirical Study

(Oct. 2006) ......................................................... 12

Letter from Catherine W. Brown, Ass’t Legal

Adviser for Consular Affairs, U.S. Dep’t of

State, to Michael Nicholls, Lord Chancellor’s

Dep’t, Child Abduction Unit, United

Kingdom (Aug. 10, 1995) .................................. 12

iv

Members of the First Commission, in 3 Acts and

Documents of the Fourteenth Session, Child

Abduction (1982) ................................................. 7

Elisa Pérez-Vera, Explanatory Report, in 3 Acts

and Documents of the Fourteenth Session,

Child Abduction (1982) ..............................passim

Elisa Pérez-Vera, Report of the Special

Commission, in 3 Acts and Documents of the

Fourteenth Session,

Child Abduction (1982) ............................. 6, 9, 13

Preliminary Draft Convention Adopted by the

Special Commission and Report by Elisa

Pérez-Vera, in 3 Acts and Documents of the

Fourteenth Session, Child Abduction (1982) ..... 9

Procès-verbal No 8, in 3 Acts and Documents of

the Fourteenth Session, Child Abduction

(1982) ................................................................. 11

Procès-verbal No 9, in 3 Acts and Documents of

the Fourteenth Session, Child Abduction

(1982) ................................................................. 13

Procès-verbal No 15, in 3 Acts and Documents of

the Fourteenth Session, Child Abduction

(1982) ................................................................. 13

Rhona Schuz, The Hague Child Abduction

Convention—A Critical Analysis (2013) .......... 16

Special Commission, Conclusions Drawn from

the Discussions of the Special Commission of

March 1979 on Legal Kidnapping, in 3 Acts

and Documents of the Fourteenth Session,

Child Abduction (1982) ................................. 6, 15

v

U.S. Dep’t of State, Hague International Child

Abduction Convention; Text and Legal

Analysis, 51 Fed. Reg. 10,494 (Mar. 26, 1986) ... 4

Working Documents Nos 4 to 13, in 3 Acts and

Documents of the Fourteenth Session, Child

Abduction (1982) ............................................... 10

INTEREST OF AMICI CURIAE *

Amici Jamison Selby Borek and James Hergen

served as delegates from the United States to the

Fourteenth Session of the Hague Conference on Private International Law, which drafted the Hague

Convention on the Civil Aspects of International Child

Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89 (“Convention”). As delegates to the Fourteenth Session, amici

negotiated and drafted the terms of the Convention.

They have a clear recollection of the intent of the delegates and the result the drafters aimed to accomplish

in negotiating the Convention’s terms. They have an

interest in ensuring that the drafters’ intent—as manifested in the Convention’s text, purpose, and negotiating history—is preserved and effectuated.

SUMMARY OF ARGUMENT

Article 13(b) of the Convention nowhere requires

courts to consider ameliorative measures after determining that there is a grave risk that returning a child

would expose the child to harm. That is reason

enough to reject the inflexible rule applied by the

court below. Considering the Convention’s negotiating history and purpose, as the Court has done in the

past, bolsters that conclusion.

I. This Court should consult the Convention’s negotiating history and purpose, as the Court has repeatedly done when interpreting other provisions of

* Pursuant to this Court’s Rule 37.6, counsel for amici states

that no counsel for a party authored this brief in whole or in part,

and no person or entity other than amici or their counsel made a

monetary contribution to this brief ’s preparation or submission.

All parties have consented to the filing of this brief.

2

the Convention. Examination of the Convention’s history and purpose would be particularly helpful here

because of the thorough preparatory materials and reports accompanying the Convention, as well as the authoritative insight provided by amici—both of whom

featured prominently in the Convention’s drafting

and can speak clearly to the drafters’ intent.

II. The Convention’s drafters never discussed—

and certainly did not adopt—mandatory consideration of ameliorative measures following a grave-risk

finding. That lack of discussion is meaningful because

the delegates spent considerable time and effort drafting the Convention and deliberating over its provisions—with particularly careful attention given to Article 13(b).

Moreover, requiring courts to consider ameliorative measures is at odds with the Convention’s goal of

advancing the child’s best interests. The Convention’s

negotiating history and Preamble confirm that the removed child’s interests were of “paramount importance.” Convention pmbl. By requiring courts to

consider ameliorative measures that might facilitate

the child’s return—even where return threatens harm

to the child—the Second Circuit’s rigid rule improperly elevates the left-behind parent’s interests over

the child’s own safety.

That rule likewise undermines the Convention’s

purpose of ensuring “prompt” adjudication of return

petitions. Convention art. 1(a). Forcing courts to consider ameliorative measures substantially slows the

decision-making process and thereby delays any return to the child’s country of habitual residence. Indeed, this case illustrates how seriously the lower

3

court’s rule impairs speedy returns: B.A.S. has lived

in the United States for more than three years, and

the parents still do not know whether he must return

to Italy.

ARGUMENT

I.

THE

COURT

SHOULD

CONSIDER

CONVENTION’S HISTORY AND PURPOSE.

THE

In construing the meaning of a treaty—including

the very Convention at issue here—this Court often

has looked to the treaty’s negotiating history and purpose. The Court should do so again here especially

because amici provide authoritative insight into the

Convention’s drafting history and fundamental goals.

A.

This Court Often Interprets Treaties

In Light Of Their History And Purpose.

Although “[t]he interpretation” of the Convention,

“like the interpretation of a statute, begins with its

text,” Abbott v. Abbott, 560 U.S. 1, 10 (2010), it is well

settled that “negotiation and drafting history” are valuable “‘aids to [a treaty’s] interpretation,’” Medellin v.

Texas, 552 U.S. 491, 507 (2008) (quoting Zicherman v.

Korean Air Lines Co., 516 U.S. 217, 226 (1996)).

This Court thus routinely relies on negotiating

history and purpose when interpreting international

agreements. See, e.g., GE Energy Power Conversion

France SAS, Corp. v. Outokumpu Stainless USA,

LLC, 140 S. Ct. 1637, 1645–46 (2020) (using “negotiating and drafting history” of the New York Convention to “confirm” the Court’s “interpretation of the

Convention’s text”); Zicherman, 516 U.S. at 226 (con-

4

sidering statements made during the Warsaw Convention’s drafting); Societe Nationale Industrielle Aerospatiale v. U.S. District Court for S. District of Iowa,

482 U.S. 522, 534 (1987) (rejecting interpretation as

“inconsistent with the language and negotiating history of the Hague Convention”).

In fact, when interpreting the very agreement at

issue here—the 1980 Hague Convention on the Civil

Aspects of International Child Abduction—this Court

has often consulted the Convention’s negotiating history, including the Explanatory Report by Elisa PérezVera, and the Convention’s purposes. See, e.g.,

Monasky v. Taglieri, 140 S. Ct. 719, 727 (2020) (using

the Explanatory Report to construe “habitual residence” in Article 12 of the Convention); Abbott, 560

U.S. at 19௅22 (examining the Explanatory Report and

the Convention’s “objects and purposes”). 1

As this Court has explained, Hague Convention

reports and views expressed by “member[s] of the

United States delegation . . . most closely involved in

the drafting of the Convention” can be “especially

helpful in ascertaining [the Convention’s] meaning.”

Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1511

(2017) (relying on delegates’ views and Rapporteur’s

1 See also Elisa Pérez-Vera, Explanatory Report, in 3 Acts and

Documents of the Fourteenth Session, Child Abduction (1982)

(“Explanatory Report”). The Explanatory Report “is recognized

by the Conference as the official history and commentary on the

Convention and is a source of background on the meaning of the

provisions of the Convention available to all States becoming

parties to it.” U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.

10,494, 10,503 (Mar. 26, 1986).

5

report to shed light on a Hague Convention’s meaning); see also Volkswagenwerk Aktiengesellschaft v.

Schlunk, 486 U.S. 694, 700–01 (1988) (examining final report, proposed amendments, and comments

made by delegates).

This rich tradition confirms that the Court should

consider the views of the delegates, along with the

Convention’s Explanatory Report and other preparatory materials, in construing Article 13(b). Such consideration would be especially appropriate here because the court of appeals derived its rule mandating

consideration of ameliorative measures not from Article 13(b)’s text, but from principles that it thought to

be reflected in the Explanatory Report. See Blondin

v. Dubois, 189 F.3d 240, 248–49 (2d Cir. 1999). Because the rule at issue was based on the Convention’s

drafting history and purpose, a closer review of the

negotiating record is warranted.

Consideration of the Convention’s negotiating history, moreover, would accord with the guidelines for

treaty interpretation set forth in the Vienna Convention on the Law of Treaties (“Vienna Convention”).

Under the Vienna Convention, “the preparatory work

of the treaty and the circumstances of its conclusion”

can help “confirm” a treaty’s ordinary meaning. Vienna Convention on the Law of Treaties, May 23,

1969, art. 32, 1155 U.N.T.S. 331. Although not yet

ratified by the United States, the Vienna Convention

is generally considered an authoritative guide to

treaty interpretation. See Fujitsu Ltd. v. Fed. Express

Corp., 247 F.3d 423, 433 (2d Cir. 2001); see also Sale

v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 191 (1993)

(Blackmun, J., dissenting) (citing the Vienna Convention when interpreting a treaty).

6

Accordingly, the Court should consider the drafting history and purpose of Article 13(b) of the Convention when evaluating the court of appeals’ mandatory

approach to ameliorative measures.

B.

As Delegates, Amici Provide An Authoritative Voice On The Convention’s Negotiating History And Purpose.

Because amici played critical roles in the Convention’s drafting, their views on the Convention’s drafting history and purpose are uniquely authoritative.

The Convention’s terms reflect a long history of

careful deliberation by several delegations. Efforts to

develop an international legal framework for child abduction began in 1978 when the Hague Permanent

Bureau sent member nations a detailed study and

questionnaire on the problem. See Brigitte M. Bodenheimer, The Hague Draft Convention on International

Child Abduction, 14 Fam. L.Q. 99, 101 (1980). In

March 1979, a Special Commission comprising nearly

forty members spent ten days developing a consensus

about key provisions for any future agreement. See

Special Commission, Conclusions Drawn from the

Discussions of the Special Commission of March 1979

on Legal Kidnapping, in 3 Acts and Documents of the

Fourteenth Session, Child Abduction 162–65 (1982)

(“Special Commission Conclusions”).

After sixteen more negotiation sessions, the Special Commission developed a preliminary draft of the

Convention, and member nations then issued formal

written input on that draft. Elisa Pérez-Vera, Report

of the Special Commission, in 3 Acts and Documents

of the Fourteenth Session, Child Abduction 176 (1982)

7

(“Special Commission Report”); Comments of the Governments on Preliminary Document No 6, in 3 Acts

and Documents of the Fourteenth Session, Child Abduction 215–51 (1982) (“Comments of the Governments”).

These efforts culminated in October 1980, when

delegations from twenty-three member countries convened for nearly three weeks of additional deliberations at the Fourteenth Session of the Hague Convention. The United States sent five delegates to this session: amici James Hergen and Jamison Selby Borek,

along with Peter H. Pfund, Patricia Hoff, and Lawrence H. Stotter. See Members of the First Commission, in 3 Acts and Documents of the Fourteenth Session, Child Abduction 254 (1982).

Amici played important roles during these deliberations. Representing the U.S. State Department,

Ms. Borek served as the lead spokesperson for the

United States’ delegation to the Fourteenth Session.

In that role, she actively led discussions among the

delegations and attended all proceedings. She has

clear recollections about the matters discussed in this

submission. Mr. Hergen participated at the March

1979 Special Commission and served as a delegate at

the October 1980 Fourteenth Session. At the Fourteenth Session, he participated in all proceedings and

served on a special subcommittee tasked with crafting

model forms.

See Explanatory Report 427 n.6.

Mr. Hergen also has clear recollections about the matters discussed in this submission.

Finally, after nearly a month of meetings that included both Ms. Borek and Mr. Hergen, the Convention was adopted by a unanimous vote of the delegates

8

from the twenty-three member states present at the

Fourteenth Session. See Explanatory Report 426;

Convention Adopted by the Fourteenth Session and

Signed on the 25th of October 1980, in 3 Acts and Documents of the Fourteenth Session, Child Abduction

413–22 (1982) (“Final Convention”).

Given amici’s substantial involvement in the

drafting of the Convention, their understandings of

the drafters’ intent should be given considerable

weight.

II. THE DRAFTERS DID NOT INTEND TO REQUIRE

COURTS

TO

CONSIDER

AMELIORATIVE

MEASURES WHEN THERE IS A GRAVE RISK THAT

RETURN WOULD EXPOSE THE CHILD TO HARM.

Despite years of drafts and detailed negotiations,

the drafters of the Convention never discussed requiring courts in signatory states to consider ameliorative

measures in grave-risk cases. And the drafters never

would have intended such an inflexible mandate because it would frustrate two of the Convention’s fundamental goals—namely, serving the child’s best interests and ensuring prompt adjudication of return

petitions.

A.

The Drafters Thoroughly Discussed

Every Provision Of Article 13.

Over the course of two years of comprehensive research, drafting, and negotiations, the delegates

crafted the Convention’s language meticulously after

thorough debate. Amici recall that the drafters exhaustively discussed the Convention’s provisions—often in excruciating detail. And amici specifically re-

9

member that the drafters closely scrutinized the circumstances in which a court would not be required to

order the return of a child to his or her country of habitual residence.

Detailed comments from the states party to the

Convention confirm that the drafters gave “special attention” to the “grounds for refusal.” Comments of the

Governments 214–15, 216 (Federal Republic of Germany); id. at 218 (Australia); id. at 219 (Austria); id.

at 220–21 (Belgium); id. at 232–34 (Canada); id. at

238–39 (Denmark); id. at 242–43 (United States); id.

at 250 (United Kingdom); id. at 251 (Sweden); see also

Special Commission Report 202–05 (summarizing discussions about the draft article). These exceptions—

including when “there is a grave risk that his or her

return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”—were eventually codified in Article

13. Convention art. 13(b). 2

In fact, out of the eighty-three working documents

considered by the drafters, more than a dozen addressed the exceptions later codified in Article 13. As

the Explanatory Report sets forth, “[e]ach of the terms

2 The grounds for refusing to return a child—including the exception based on a grave-risk finding—were originally located in

Article 12 of the draft Convention, but were codified in Article 13

of the final Convention. Compare Preliminary Draft Convention

Adopted by the Special Commission and Report by Elisa PérezVera, in 3 Acts and Documents of the Fourteenth Session, Child

Abduction 168 (1982), with Final Convention 416. Any discussion that took place regarding draft Article 12 thus provides insight into the exceptions ultimately set forth in Article 13 of the

ratified Convention.

10

used” in Article 13(b) thus was thoughtfully considered and agreed upon as “the result of a fragile compromise reached during the deliberations of the Special Commission.” Explanatory Report 461.

Had the drafters intended to require courts to consider ameliorative measures in grave-risk cases, there

is no doubt that they would have discussed that requirement at length and reflected that requirement in

the Convention’s terms.

B.

The Drafters Neither Discussed Nor

Adopted A Requirement To Consider

Ameliorative Measures.

Despite these detailed negotiations, the drafters

never discussed any proposal to require courts to consider ameliorative measures in grave-risk cases.

Amici can confirm, based on their personal recollections, that no such discussion happened. Nor is there

any mention of mandatory consideration of ameliorative measures anywhere in the nearly five hundred

pages of preparatory materials, proposals, minutes of

deliberations, and reports. The topic simply did not

come up.

To the contrary, when there was a proposal to require courts to consider a specific type of evidence in

grave-risk cases, the drafters resisted such a requirement. The United States proposed that a grave-risk

finding must be supported by evidence “supplied by

the Central Authority of the State of origin or other

competent authorities or persons of that State.”

Working Documents Nos 4 to 13, in 3 Acts and Documents of the Fourteenth Session, Child Abduction 263

(1982). But that amendment was voted down largely

11

because the delegations did not want to constrain judicial discretion about what evidence a court could

consider. See Procès-verbal No 8, in 3 Acts and Documents of the Fourteenth Session, Child Abduction 301

(1982) (“Finland would have difficulty in accepting

any provision which served to restrict the wide discretionary powers vested in Finnish judges.”); id. (comment from the Chairman “stress[ing] that evidential

matters should not be included in the Convention”);

see also id. at 300 (comment from the United Kingdom

that “[a] court should not be constrained from having

regard to particular evidence concerning prospective

harm to the child, on the basis of its provenance”).

The drafters ultimately agreed to require consideration of only one type of evidence—and that requirement applies to all Article 13 cases, not grave-risk

cases specifically. See Convention art. 13 (“In considering the circumstances referred to in this Article, the

judicial and administrative authorities shall take into

account the information relating to the social background of the child provided by the Central Authority

or other competent authority of the child’s habitual

residence.”). Even that general requirement, moreover, generated substantial discussion among the delegates. See, e.g., Comments of the Governments 217

(Federal Republic of Germany); id. at 234 (Canada);

id. at 243 (United States). Thus, had the drafters intended to require consideration of ameliorative

measures in grave-risk cases, they would have thoroughly discussed and explicitly enacted such a requirement. That the drafters did neither demonstrates that they intended no such requirement.

12

Subsequent views expressed by signatories further confirm that the drafters never intended to require consideration of ameliorative measures. Cf. Zicherman, 516 U.S. at 227–28 (looking to the “postratification conduct of the contracting parties”). In the

1990s, the State Department opined that considering

“undertakings”—another term for “ameliorative

measures,” Pet. App. 3a—“can be consistent with the

Convention,” but is “not necessary to operation of the

Convention,” Letter from Catherine W. Brown, Ass’t

Legal Adviser for Consular Affairs, U.S. Dep’t of

State, to Michael Nicholls, Lord Chancellor’s Dep’t,

Child Abduction Unit, United Kingdom (Aug. 10,

1995) (emphases added). The State Department

never would have needed to opine on whether consideration of ameliorative measures was “consistent with

the Convention” had the Convention, in fact, required

consideration of those measures. Other signatories

likewise permit, but do not require, consideration of

ameliorative measures. See Hague Conference on Private International Law, Enforcement of Orders Made

Under the 1980 Convention—An Empirical Study 49–

50 (Oct. 2006) (Germany and Slovakia).

C.

Requiring Consideration Of Ameliorative Measures Conflicts With The

Drafters’ Aim To Protect Children.

The Convention’s negotiating history and stated

purpose underscore that Article 13(b) should promote

the child’s best interests. Because the Second Circuit’s rule mandating consideration of ameliorative

measures does just the opposite, amici are confident

that the drafters never would have intended to impose

such a rule.

13

Amici affirm that the overarching goal shared

among the drafters was protecting the best interests

of the child. Several aspects of the Convention’s negotiating history confirm that recollection:

First, the drafting history amply demonstrates

that the Convention’s guiding principle is the best interests of the child. The Special Commission thought

it “obvious that the efforts made by the Hague Conference” to develop an international agreement were “inspired by a desire to protect the interests of [removed]

children.” Special Commission Report 182; see Explanatory Report 431 (“it is precisely because of [the

conviction that the interests of children are paramount] that they drew up the Convention”). As Sweden put it, “[t]he underlying principle of the draft Convention is undoubtedly the protection and the welfare

of the child.” Comments of the Governments 244 (emphasis added).

Second, and as a result, the drafters declared in

the Convention’s Preamble that “the interests of children are of paramount importance in matters relating

to their custody.” Convention pmbl. Importantly,

that language was absent from the preliminary draft

and was added only after the drafters voiced strong

support for explicitly declaring the importance of the

child’s interests. See Procès-verbal No 9, in 3 Acts and

Documents of the Fourteenth Session, Child Abduction 304 (1982) (comment from Israel that, “[s]ince the

best interests of the child were the paramount consideration, [the delegate] could not conceive how the Convention would fail to mention them at some point”);

Procès-verbal No 15, in 3 Acts and Documents of the

Fourteenth Session, Child Abduction 360 (1982) (comment from United Kingdom that the Convention

14

“ought expressly to refer to the welfare of the child”).

The Preamble thus affirms that the Convention “must

always be inspired by the desire to protect children

and should be based upon an interpretation of their

true interests.” Explanatory Report 431.

Third, the drafters specifically intended that Article 13(b) safeguard the child’s best interests. See

Comments of the Governments 233 (stating that the

exception under b “is obviously aimed at protecting

the child rather than the abductor”); Explanatory Report 433 (“paragraphs 1b and 2 of the said article 13

contain exceptions which clearly derive from a consideration of the interests of the child”). The premise of

the return exception is that the child’s interests are

better served by refusing to put him or her at grave

risk of exposure to harm. After all, “the interest of the

child in not being removed from its habitual residence

without sufficient guarantees of its stability” must

“giv[e] way before the primary interest of any person

in not being exposed to physical or psychological danger.” Explanatory Report 433.

The court of appeals’ approach obliterates this

fundamental purpose. By forcing judges to consider

ameliorative measures even in domestic violence cases

with a grave-risk finding, the court shifted the focus

away from the child and onto the left-behind parent.

The entire purpose of mandating consideration of

ameliorative measures is to find a way to return the

child to his or her country of habitual residence—even

though there is a grave risk that the child will suffer

physical or psychological harm. The lower court’s rule

turns the Convention on its head by risking harm to

the child when the child’s “primary interest” obviously

is in his or her own safety. See Explanatory Report

15

433. The drafters never contemplated, much less intended, this upside-down result.

D.

Requiring Consideration Of Ameliorative Measures Conflicts With The

Drafters’ Aim Of Prompt Adjudication

Of Return Petitions.

The drafters never would have intended to adopt

the court of appeals’ rigid rule for a second reason: It

frustrates the Convention’s goal of “secur[ing] the

prompt return of children wrongfully removed” from

their country of habitual residence. Convention art.

1(a).

Prompt adjudication matters because, as the

drafters explained, the longer the child spends away

from home, the more likely the child will be to develop

ties to the new country that would be severed if a court

later issued a return order. See Comments of the Governments 232 (comments from Canada); see also Explanatory Report 435 (“[W]here the removal of a child

is concerned, the time factor is of decisive importance.

In fact, the psychological problems which a child may

suffer as a result of its removal could reappear if a decision on its return were to be taken only after some

delay.”).

Time and again, the drafters emphasized the need

for a speedy process. The Special Commission, for example, recommended that “[c]ases involving an application for return of a child . . . be resolved under the

most expeditious procedures possible.” Special Commission Conclusions 164. And the drafters designed

the petition process to result in “a speedy and immediate” decision. Id. at 179; see also id. at 187 (“the

Convention wishes above all to insure the immediate

16

return of removed children”). To that end, the drafters rejected proposals that would have delayed the issuance of return orders. See Comments of the Governments 232–33 (explaining the Special Commission did

not adopt a “public policy” exception because it “did

not wish” to “increase the number of ways of impeding

the child’s return”); Rhona Schuz, The Hague Child

Abduction Convention—A Critical Analysis 270

(2013) (“It was clear to [the drafters] that a general

‘welfare’ or ‘public policy’ defense would to a large extent defeat the whole purpose of the Convention because return would invariably be delayed until all the

necessary information was brought to the court.”).

The drafters especially worried that Article 13’s

exceptions would unduly extend return proceedings.

The United States warned that “broad exceptions will

tend to turn virtually every return proceeding into an

adversary contest on the merits of the custody question”—an outcome that jeopardized the “‘prompt return’ principle.” Comments of the Governments 242.

The Federal Republic of Germany likewise opposed

consideration of expert opinions, second opinions, and

“investigations of fact,” as those could “result in a considerable delay of the return” and thereby frustrate

the Convention’s purpose. Id. at 216. In short, the

drafters intended the Convention to create a swift process for adjudicating return petitions, and they carefully crafted return exceptions so as not to swallow the

general principle of “prompt return.” Convention

art.1(a).

The court of appeals’ rule flatly undermines the

goal of efficient and prompt adjudication of return petitions. Mandating that courts consider ameliorative

measures despite a grave risk of exposure to harm

17

necessarily complicates, and thus prolongs, the decision-making process in multiple respects. First, it requires courts to go through the added step of reviewing and assessing potential ameliorative measures.

That inquiry often involves expert testimony, see, e.g.,

Jacquety v. Baptista, 538 F. Supp. 3d 325, 379–81

(S.D.N.Y. 2021), which takes time to prepare and present to the court. Second, the viability of ameliorative

measures may depend on the voluntary cooperation of

authorities from the home country—which takes additional time to secure. Finally, mandatory consideration introduces another complex variable into appellate review of cases already complicated by a graverisk finding. Delay for any of these reasons frustrates

the Convention’s objective of a “prompt” return.

These are not hypothetical concerns. On remand

in this case, the district court spent nine months on an

“extensive examination” of possible ameliorative

measures. Pet. App. 12a. During that time, the district judge contacted the Representative of the U.S.

Federal Judiciary for the International Judicial Network under the Hague Convention and corresponded

with the Italian Central Authority and the Italian

Ministry of Justice about B.A.S. Id. The judge further

held “multiple conferences” with the parties and ordered numerous “status reports and briefs” on the

“sufficiency of various ameliorative measures.” Id. In

addition, the Second Circuit heard two separate appeals on whether the district court had sufficiently

considered ameliorative measures. More than three

years after respondent’s petition was filed, B.A.S. continues to develop connections to the United States

that would ultimately be severed if the decision below

were affirmed.

18

Adjudicating this return petition thus has been

anything but “prompt,” and the delay caused by the

lower court’s inflexible rule risks inflicting the very

harm that the Convention’s drafters sought to avoid.

*

*

*

Amici recall—and all available independent evidence confirms—that the drafters of the Convention

never so much as mentioned mandatory consideration

of ameliorative measures. If such a rule had been proposed, amici are confident that the delegations would

have swiftly rejected it. Indeed, such a requirement

plainly works against the child’s best interests, both

by facilitating the child’s return to a harmful environment and by fostering delay that makes any return

that much more disruptive to the child’s life.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

AMIR C. TAYRANI

Counsel of Record

KELLAM CONOVER

PHILIP HAMMERSLEY

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 887-3692

atayrani@gibsondunn.com

Counsel for Amici Curiae

January 26, 2022