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

Supreme Court briefJan 26, 2022

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No. 20-1034

In The

Supreme Court of the United States

NARKIS ALIZA GOLAN,

Petitioner,

ISAACO JACKY SAADA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE FREDERICK K.

COX INTERNATIONAL LAW CENTER IN

SUPPORT OF PETITIONER

MICHAEL P. SCHARF

STEPHEN J. PETRAS, JR.

ANDREW S. POLLIS

AVIDAN Y. COVER

Frederick K. Cox

International Law

Center, Case Western

Reserve University

School of Law

10900 Euclid Ave.

Cleveland, Ohio 44106

(216) 368-2000

DAVID A. CARNEY

Counsel of Record

MELISSA BILANCINI

BAKER & HOSTETLER

LLP

Key Tower

127 Public Square, Suite

2000

Cleveland, Ohio 44114

(216) 621-0200

dcarney@bakerlaw.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE .....................1

INTRODUCTION..............................................................2

ARGUMENT ......................................................................5

The Court Interprets Treaties Consistent

with the Shared Expectations of the

Parties. .....................................................................5

The Principle of Uniformity of

Interpretation Has More Limited

Application for the Article 13(b) Defense.............6

The Leading Opinions from Our Sister

Signatories Remain Relevant for the

Court’s Textual Analysis of the Article

13(b) Defense. ..........................................................9

The Opinions of Our Sister Signatories

Show that the Second Circuit’s Judicial

Imposition of a Protective Undertakings

Requirement Is Wrong. .......................................12

The Second Circuit’s Judicial Mandate for

Broad Consideration of Protective

Undertakings Violates Core Convention

Principles and Offends Comity. ...........................13

The Court Should Reverse the Judgment

of the Second Circuit and Keep B.A.S.

Here at Home. .......................................................18

CONCLUSION.................................................................20

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Abbott,

560 U.S. 1 (2010) ......................................................... 4, 5

Achakzad v. Zemaryalai,

2010 Ont. Ct. of Just. 318 [Can. LII] ........................... 3

AEP Energy Services Gas Holding Co. v.

Bank of Am., N.A.,

626 F.3d 699 (2d Cir. 2010) .......................................... 18

Air France v. Saks,

470 U.S. 392 (1985) ......................................................... 5

The Amiable Isabella, 19 U.S. 1, 22 (1821) ...................... 12

Arthur & Secretary, Department of

Family Community Services v. Anor

[2017], Fam. Ct. Aust. 111 ............................... 10, 11, 15

Chan v. Korean Air Lines, Ltd.,

490 U.S. 122 (1989) ....................................................... 12

Council of the Dorset Condo. Apts. v.

Gordon,

801 A.2d 1 (2002) .......................................................... 18

In re D (a child),

[2006] UKHL 51 ..................................................... 11, 19

iii

Danaipour v. McLarey,

286 F.3d 1 (1st Cir. 2002)............................................... 7

Davies v. Davies,

2017 WL 361556 (S.D.N.Y. Jan. 25,

2017)............................................................................... 16

Davies v. Davies,

717 F. App’x 43 (2d Cir. 2017) ..................................... 16

DP v. Commonwealth Central Authority

[2001] HCA 39 ...................................................... 2, 9, 11

In re E (Children) (FC),

[2011] UKSC 27 ................................................ 2, 3, 9, 10

El Al Israel Airlines, Ltd. v. Tsui Yuan

Tseng,

525 U.S. 155 (1999) ......................................................... 5

Finizzio v. Scoppio-Finizzio,

1999 CarwellOnt 3018 (C.A.) ...................................... 10

Habimana v. Mukundwa,

2019 ONSC 1781 (Ontario Sup. Ct. of

Just.) ................................................................................ 9

In the Matter of K (A Minor),

[2020] NIFam 9 ............................................................ 10

L.K. v. Director-General, Department of

Community Services,

[2009] HCA 9 .............................................................. 5, 6

Lozano v. Montayo Alvarez,

572 U.S. 1 (2014) ............................................................. 5

LRR v. COL,

[2020] NZCA 209, CA743/2018 ........................... passim

In re M (Abduction: Undertakings),

[1995] 1 FLR 1021 ........................................ 3, 10, 11, 15

Medellin v. Texas,

552 U.S. 491 (2008) ......................................................... 4

PAS v. AFS,

[2004] IESC 95 (Ir.) ....................................................... 5

Punter v. Secretary of Justice,

[2007] 1 NZLR 40, CA221/05 ........................................ 5

In the Matter of S (a Child),

[2012] UKSC 10 ............................................................ 11

Stockman v. Heartland Industrial

Partners, L.P.,

2009 WL 2096213 (Del. Ch. Ct. Jul. 14,

2009)............................................................................... 18

Thomson v. Thomson,

[1994] 3 S. C. R. 551 ................................................. 9, 10

Trans World Airlines, Inc. v. Franklin

Mint Corp.,

466 U.S. 243 (1984) ......................................................... 4

Statutes

22 U.S.C. § 9001.................................................................... 5

22 U.S.C. § 9003.................................................................... 8

Other Authorities

Arthur R. Miller, 14D Fed. Prac. & Proc.

Juris. § 3828.3 (4th Ed., Oct. 2020

Update) ................................................................... 16, 17

Dep’t of State, Text and Legal Analysis, 51

Fed. Reg. 10,494, 10,510 (Mar. 26,

1986)............................................................................... 13

Kathleen Ruckman, Undertakings as

Convention Practice: The United

States Perspective ......................................................... 2

Leading Opinions from Our Sister

Signatories Remain Relevant for a

Textual Analysis of the Article 13(b) ........................... 9

Rhona Schuz, The Hague Child Abduction

Convention: A Critical Analysis

Interpretation and Application of the

Grave Risk Defence ....................................................... 8

Virginia A. Fitt, Note, The Tragedy of

Comity: Questioning the American

Treatment of Inadequate Foreign

Courts, 50 Va. J. Int’l L. 1021, 1044

(2010) ............................................................................. 17

INTEREST OF THE AMICUS CURIAE 1

The Frederick K. Cox International Law Center at

Case Western Reserve University School of Law is one of

the world’s premier institutions dedicated to scholarly

publications and projects that foster the rule of

international law. There are thirty-four full time and

adjunct faculty experts in international law associated

with the Cox Center. They hold leadership positions in

prestigious international law-related professional

organizations, including the Council on Foreign

Relations, the Public International Law and Policy

Group, the Canada-U.S. Law Institute, the International

Law Association, and the American Society of

International Law. They have testified before the Senate

Foreign Relations Committee and been cited in the

opinions of this Court, the International Court of Justice

and International Criminal Tribunals. They have won

three national book-of-the-year awards. And the Chief

Prosecutor of the United Nations Special Court for Sierra

Leone nominated the work of the Cox Center for the

Nobel Peace Prize in 2005 for the invaluable assistance

the Center provided to the Office of the Chief Prosecutor.

The Cox Center’s overarching mission remains the

advancement of international law. This amicus brief is

submitted in furtherance of that mission.

Pursuant to Rule 37.6, amici affirm that no counsel for any party

authored this brief in whole or in part, and no person or entity other

than the Frederick Cox International Law Center and its counsel

made a monetary contribution to its preparation or submission. All

parties have consented to the filing of this brief.

INTRODUCTION

The question presented by the petition requires the

Court to balance several interests that lie at the heart of

the Child Abduction Convention—not only the goal for

prompt return to the country of habitual residence, but

also the paramount goals for the protection of the child,

for expeditious Convention proceedings, and for a clear

line of demarcation between Convention petitions and the

determination of child-custody disputes.

In balancing these interests, the Cox Center agrees

with the petitioner and the United States: “As a matter of

practice, elaborate conditions undermine the purpose of

prompt return and cause hardship for parents as well as

Central Authorities, who must act as intermediaries with

left-behind parents to negotiate the terms of return,

many of which are beyond the control of either Central

Authorities

parents.”

Kathleen

Ruckman,

Undertakings as Convention Practice: The United States

Perspective, The Judges’ Newsletter (Hague Conf. on

Private Int’l Law, London, England) Vol. II, at 46 (2006);

see also Pet. Br. 14-15, 28-31 (arguing same).

As these positions are applied to this case, the Second

Circuit’s rule—mandating the judicial consideration of

protective undertakings after a finding of grave risk

under the Article 13(b) exception—misapplies the Child

Abduction Convention.

Above all else, the Convention “aims to serve the best

interests of the individual child.” In re E (Children) (FC),

[2011] UKSC 27, ¶ 14. “It does so by making certain

rebuttable assumptions about what will best achieve

this.” Id. (citing Explanatory Report of Professor PerezVera, at para 25 (in turn providing: “it has to be admitted

that the removal of a child can sometimes be justified by

objective reasons which have to do either with its person,

or with the environment with which it is most closely

connected”).) As relevant here, the return presumption is

made inapplicable where “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.” Conv., Art. 13(b).

In applying this exception, our sister signatories have

not allowed left-behind parents to unilaterally create

alternate realities through promises placed on a piece of

paper. Our sister signatories have instead recognized that

the best evidence of what will happen in the immediate

future—the Convention sets forth the goal that return

petitions be decided within six weeks, not six years—is

what has happened in the immediate past. Thus also, our

sister signatories have held that “the requirements made

in this country must not be so elaborate that their

implementation might become bogged down in

protracted hearings and investigations,” In re M

(Abduction: Undertakings), [1995] 1 FLR 1021, 1024

(Butler-Sloss, LJ), and deny return petitions in cases like

this one, involving serious allegations of prolonged and

severe domestic abuse, e.g., LRR v. COL, CA743/2018,

[2020] NZCA 209, ¶¶ 135-36; Achakzad v. Zemaryalai,

2010 Ont. Ct. of Just. 318 [Can. LII], ¶¶ 97-98.

These holdings apply with particular force in the

United States, where, unlike many of our sister

signatories, our trial courts have no built-in mechanism

for enforcement of judicial orders abroad. Thus, as this

case shows, embroiling our state and federal judges in a

judicially mandated protective undertakings analysis

thwarts two Convention goals: the prompt determination

of return petitions (Conv., Art. 11) and separating petition

proceedings from child-custody disputes (id., Art. 16).

It is for these reasons that the Cox Center agrees with

the position of the United States: the consideration of

protective undertakings is both (1) not required by the

Convention, and (2) should be limited in time and scope to

ensuring the safe return of the child to the country of

habitual residence in the first instance. (Br. for the U.S.

as Amicus Curiae (Oct. 2021), at pgs. 8, 10.) Undertakings

that go any further than this limited scope, and judicial

requirements mandating consideration of undertakings

that go any further than this limited scope, necessarily

distort Convention proceedings in a way that the framers

of the Convention could never have intended.

This case shows this distortion better than any other:

the Second Circuit’s judicially imposed protectiveundertakings mandate has placed the life of a child in

legal limbo for nearly four years and enmeshed a United

States district court judge sitting in Brooklyn into child

custody proceedings occurring in Milan, contrary to the

very fiber of the Convention’s basic principles.

Under these circumstances, comity is best-served by

applying the Convention as it was framed, rather than

amending the Convention through judicial fiat. As our

sister signatories have likewise held: “it is inconceivable

that a court which reached the conclusion that there was

a grave risk that the child’s return would expose him to

physical or psychological harm or otherwise place him in

an intolerable situation would nevertheless return him to

face that fate.” In re D (a child), [2006] UKHL 51, ¶ 55

(Baroness Hale of Richmond); LRR v. COL, CA743/2018,

[2020] NZCA 209, ¶¶ 100, 119, 146 (holding same).

ARGUMENT

The Court Interprets Treaties Consistent with the

Shared Expectations of the Parties.

“A treaty is in the nature of a contract between

nations.” Trans World Airlines, Inc. v. Franklin Mint

Corp., 466 U.S. 243, 253 (1984). The interpretation of a

treaty “begins with its text,” Abbott v. Abbott, 560 U.S. 1,

10 (2010) (quoting Medellin v. Texas, 552 U.S. 491, 506

(2008))—the Court gives “the specific words of the treaty

a meaning consistent with the shared expectations of the

contracting parties.” Air France v. Saks, 470 U.S. 392, 399

(1985); see also Lozano v. Montayo Alvarez, 572 U.S. 1, 12

(2014) (same); Vienna Convention on the Law of Treaties,

Article 31 (General rule of interpretation) (“A treaty shall

be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in

their context and in the light of its object and purpose.”).

Basic norms of contract interpretation provide that

“[a] court must interpret contractual provisions in a way

that gives effect to every term of the instrument, and that,

if possible, reconciles all of the provisions when read as a

whole.” Stockman v. Heartland Industrial Partners, L.P.,

2009 WL 2096213, at *6 (Del. Ch. Ct. Jul. 14, 2009) (Strine,

J.) (quoting Council of the Dorset Condo. Apts. v. Gordon,

801 A.2d 1, 7 (2002)); AEP Energy Services Gas Holding

Co. v. Bank of Am., N.A., 626 F.3d 699, 729 (2d Cir. 2010)

(“the primary concern when interpreting a contract is to

ascertain and give effect to the intent of the parties as that

intent is expressed in the contract”; “[n]o single provision

taken alone will be given controlling effect; rather, all the

provisions must be considered with reference to the whole

instrument”) (quotation omitted).

Specific with respect to treaty interpretation, “‘[t]he

opinions of our sister signatories are entitled to

considerable weight.’” Abbott, 560 U.S. at 16 (quoting El

Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155,

176 (1999)) (internal quotations and ellipsis omitted); see

also Lozano, 572 U.S. at 12; Air France, 470 U.S. at 399

(1985); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525

U.S. 155, 175-76 (1999) (all same).

This principle applies with “special force” to the Child

Abduction Convention, where “Congress has directed

that ‘uniform international interpretation of the

Convention’ is part of the Convention’s framework.”

Abbott, 560 U.S. at 16 (quoting 22 U.S.C. § 9001(b)(3)(B));

cf. Office of the Children’s Lawyer v. Balev, 2018 SCC 16,

[2018] 1 S.C.R. 398, ¶ 36 (Sup. Ct. Can. 2018); L.K. v.

Director-General, Department of Community Services,

[2009] HCA 9, 237 CLR 582, 596 ¶ 36; Punter v. Secretary

of Justice, CA 221/05 [2007] 1 NZLR 40, 84 ¶ 171; PAS v.

AFS, [2004] IESC 95 (Ir.) (recognizing same).

The Principle of Uniformity of Interpretation Has

More Limited Application for the Article 13(b)

Defense.

This principle of uniform international interpretation

of the Child Abduction Convention comes with a caveat.

If there are reasons that sister signatories may interpret

the particular provision differently from one another,

then it does no harm to international comity interests to

depart from these interpretations. As the Australia High

Court has held: “It follows that, unless it is shown that the

term is used in the statute law of other contracting states

in a sense different from the way in which it is used in the

Abduction Convention, care is to be exercised to avoid

giving the term a meaning in Australia that differs from

the way it is construed in the courts of other contracting

states.” L.K. v. Director-General, Department of

Community Services, [2009] HCA 9, 237 CLR 582, 596 ¶

36 (emphasis added).

In this case, there are three material differences for

the Court to consider in analyzing the question presented

by the petition. First, courts in the European Union—

unlike United States courts—are required by Brussels

IIa regulations (not the Convention) to analyze protective

measures in grave-risk cases. See Regulation (EC) No

2201/2003 of 27 November 2003, Art. 11(4) (providing

that “[a] court cannot refuse to return a child on the basis

of Article 13b of the 1980 Hague Convention if it is

established that adequate arrangements have been made

to secure the protection of the child after his or her

return”).

Pursuant to European Union regulation, protection

orders in child-abduction cases from sister European

courts are directly enforceable in the courts of other

member states. See European Regulation 606/2013 on the

Mutual Recognition of Protection Measures in Civil

Matters.

Second, many of our sister signatories—but not the

United States—are parties to the 1996 Convention on

Jurisdiction, Applicable Law, Recognition, Enforcement

and Co-Operation in Respect to Parental Responsibility

and Measures for the Protection of Children, including

Australia, Belgium, Denmark, France, Germany, Greece,

Norway, Switzerland, and the United Kingdom of Great

Britain. See Status Table, 1996 Child Protection Conv.,

https://www.hcch.net/en/instruments/conventions/statustable/?cid=70 (last visited Jan. 24, 2022).

Unlike Brussels II, the 1996 Child Protection

Convention does not mandate consideration of protective

measures in Child Abduction Convention proceedings.

But as with Brussels II, it does provide a mechanism for

making any protective measures automatically

enforceable in the country of habitual residence. Hague

Convention on Jurisdiction, Applicable Law, Recognition,

Enforcement, and Co-operation in Respect of Parental

Responsibility and Measures for the Protection of

Children, reprinted in, 35 I.L.M. 1391, art. 28 (1996)

(“Measures taken in one Contracting State and declared

enforceable, or registered for the purpose of

enforcement, in another Contracting State shall be

enforced in the latter State as if they had been taken by

the authorities of that State. Enforcement takes place in

accordance with the law of the requested State to the

extent provided by such law, taking into consideration the

best interests of the child.”).

United States courts, by contrast, have no built-in

mechanism to ensure that their orders are enforceable in

foreign domestic courts. E.g., Danaipour v. McLarey, 286

F.3d 1, 25 (1st Cir. 2002) (noting “[t]he district court had

no authority to order a forensic evaluation done in

Sweden, or to order the Swedish courts to adjudicate the

implications of the evaluation for the custody dispute”).

The absence of an enforcement mechanism strongly

counsels against a United States court’s imposition of

wide-ranging protective measures abroad.

Third, Congress has mandated that a parent opposing

return under the Convention exceptions must prove them

by clear and convincing evidence. 22 U.S.C. § 9003(2)(A)

(Burdens of proof). This is a higher standard of proof than

applied by our sister signatories. See Rhona Schuz, The

Hague Child Abduction Convention: A Critical Analysis

Interpretation and Application of the Grave Risk

Defence, at pg. 273 (“it should be noted that the US

implementing legislation imposes a higher standard of

proof for proving the Article 13(1)(b) and Article 20

defences. These defences have to be proven by clear and

convincing evidence; instead of the usual preponderance

of evidence.”); Brenda Hale, Taking Flight-Domestic

Violence and Child Abduction, at pg. 12 (noting that “[t]he

USA also have stricter rules of evidence and a higher

standard of proof than most other countries, requiring

‘clear and convincing evidence’ in Article 13(1)(b) cases.”).

This heightened evidentiary burden already furthers

the Convention’s general goal for prompt return, see

Dep’t of State, Text and Legal Analysis, 51 Fed. Reg.

10,494, 10,495 (Mar. 26, 1986), App’x A, Lett. Trans. at pg.

1, and thus also counsels against imposing additional

hurdles for applying the exception according to its text in

the United States.

The Leading Opinions from Our Sister Signatories

Remain Relevant for the Court’s Textual Analysis

of the Article 13(b) Defense.

With those differences in mind, we believe the leading

opinions from our sister signatories interpreting the

Article 13(b) defense provide several guiding principles

that remain helpful to the Court’s consideration of the

question presented by the petition.

First, our sister signatories have held that “[t]he words

of article 13 are quite plain and need no further

elaboration or ‘gloss.’” In re E (Children) (FC), [2011]

UKSC 27, ¶ 31 (quoting DP v. Commonwealth Central

Authority [2001] HCA 39, (2001) 206 CLR 401, paras 9,

44)).

As the Australia High Court explained: “On its face

[the text of Article 13(b)] presents no difficult question of

construction and is not ambiguous.” DP v.

Commonwealth Central Authority, [2001] HCA 39 (Aust.

High Ct.), ¶ 41. Rather, “[w]hat must be established is

clearly identified: that there is a grave risk that the return

of the child would expose the child to certain types of

harm or otherwise place the child in ‘an intolerable

situation.’” Id.; see also LRR v. COL, CA743/2018, [2020]

NZCA 209, ¶ 81 (holding that Article 13 exceptions to the

obligation to return “do not need any extra interpretation

or gloss”).

Second, the language of the Article 13(b) exception

sets a high bar. “[T]he risk has to be more than an

ordinary risk, or something greater than normally would

be expected on taking a child from one parent to another.”

Thomson v. Thomson, 1994 CarswellMan 91 (Can. Sup.

Ct.), ¶ 82; see also Habimana v. Mukundwa, 2019 ONSC

1781 (Ontario Sup. Ct. of Just.), ¶ 38 (“The jurisprudence

relating to the grave risk of harm defence, pursuant to

Article 13(b), provides for a rigorous and exacting test.

The case law supports the conclusion that the risk must

be ‘grave,’ ‘weighty,’ and ‘severe,’ on a balance of

probabilities (see para. 28 of Finizzio v. Scoppio-Finizzio,

1999 CarwellOnt 3018 (C.A.) as guided by Thomson v.

Thomson, [1994] 3 S. C. R. 551, CanLII 26).”); see also In

re E (Children) (FC), [2011] UKSC 27, ¶ 33 (“[T]he risk

to the child must be ‘grave.’ It is not enough, as it is in

other contexts such as asylum, that the risk be ‘real.’ It

must have reached such a level of seriousness as to be

characterized as ‘grave.’”); In the Matter of K (A Minor),

[2020] NIFam 9, ¶ 16 (High Ct. of Just., N. Ire.); Arthur

& Secretary, Dep’t of Family Comm. Services v. Anor,

Family Court of Australia [2017] 111, ¶ 54 (same).

These holdings are consistent with the position of the

Department of State. See Dep’t of State, Text and Legal

Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986)

(“The person opposing the child’s return must show that

the risk to the child is grave, not merely serious.”).

Third, “article 13b is looking to the future: the situation

as it would be if the child were to be returned forthwith to

her home country.” In re E (Children) (FC), [2011] UKSC

27, ¶ 35; In the Matter of S (a Child), [2012] UKSC 10, ¶

34 (“The critical question is what will happen if, with the

mother, the child is returned.”).

This forward-looking nature of the provision, however,

does not provide a judicial license to conduct a wideranging general inquiry into what can be done to ensure

the long-term well-being of the child under circumstances

that might or might exist upon return. Rather, “the

requirements made in this country must not be so

elaborate that their implementation might become

bogged down in protracted hearings and investigations.”

In re M (Abduction: Undertakings), [1995] 1 FLR 1021;

see also Arthur & Secretary, Department of Family

Community Services v. Anor, Family Court of Australia,

[2017] FamCAFC 111, ¶ 76 (following In re M and

likewise holding that “[c]onditions or undertakings

should operate only until the courts of the country of

habitual residence can become seized of the proceedings

brought in that jurisdiction”).

Fourth, and finally, “the Convention recognizes that

not all parents have the right to demand the automatic

return of children who have been taken away without

their consent.” In re D (a child), [2006] UKHL 51, ¶ 24.

Thus also: “It cannot be emphasized too strongly that

the exceptions set out in Article 13 are as integral to the

scheme of the Convention as the Article 12 provision for

prompt orders for return.” LRR v. COL, CA743/2018,

[2020] NZCA 209, ¶ 79; DP v. Commwlth. Cent. Auth.,

[2001] HCA 39 (Aust. High Ct.), ¶ 36 (recognizing the

Convention exceptions as “important qualifications to the

general rule for returning a child to the place of its

habitual residence”).

And, specific with respect to Article 13(b), our sister

signatories have thus held that entering a return order

notwithstanding a finding of grave risk or an intolerable

situation to the child would be “inconceivable.” LRR v.

COL, CA743/2018, [2020] NZCA 209, ¶¶ 100, 119, 146. As

Baroness Hale likewise wrote: “it is inconceivable that a

court which reached the conclusion that there was a grave

risk that the child’s return would expose him to physical

or psychological harm or otherwise place him in an

intolerable situation would nevertheless return him to

face that fate.” In re D (a child), [2006] UKHL 51, ¶ 55.

The Opinions of Our Sister Signatories Show that

the Second Circuit’s Judicial Imposition of a

Protective Undertakings Requirement Is Wrong.

The opinions of our sister signatories thus make plain

this pure fact: the Second Circuit’s judicial imposition of

a protective-undertakings mandate after a finding of

grave risk or intolerable situation to the child misapplies

the Abduction Convention. Article 13(b)’s text is plain and

unambiguous and needs no judicial gloss. This text sets

forth a demanding, forward-looking standard, and when

that standard is met it would be inconceivable to order the

return of the child. And, if the left-behind parent offers no

proposed undertakings and chooses to argue against the

exception on other grounds, there is simply no legitimate

textual basis for the Court to consider them.

At a very basic level, then, the Second Circuit’s judicial

imposition of this mandatory requirement violates a

fundamental principle of treaty interpretation. As this

Court long ago held: “[T]o alter, amend, or add to any

treaty, by inserting any clause, whether small or great,

important or trivial, would be on our part an usurpation

of power, and not an exercise of judicial functions.” The

Amiable Isabella, 19 U.S. 1, 22 (1821) (Story, J.).

Rather: “We are to find out the intention of the parties

by just rules of interpretation applied to the subject

matter; and having found that, our duty is to follow it as

far it goes, and to stop where that stops—whatever may

be the imperfections or difficulties which it leaves

behind.” Id.; see also Chan v. Korean Air Lines, Ltd., 490

U.S. 122, 134-35 (1989) (holding in the context of treaty

interpretation, “where the text is clear, as it is here, we

have no power to insert an amendment,” because to do so

“would be to make, and not to construe a treaty”).

The Second Circuit’s Judicial Mandate for Broad

Consideration of Protective Undertakings

Violates Core Convention Principles and Offends

Comity.

A. The Second Circuit’s error is not only procedural,

however. Entangling our district courts in the process of

attempting to ensure undertakings are enforceable in the

child’s country of habitual residence sends our judges

down a treacherous path that runs directly contrary to

two fundamental Convention goals: (1) the prompt and

summary disposition of return petitions, so that a child’s

life is not held in legal limbo; see Conv., Article 11

(requiring “[t]he judicial or administrative authorities of

Contracting States shall act expeditiously in proceedings

for the return of children,” and contemplating that Hague

petitions would be decided by the relevant authorities

within six weeks); and (2) a clear line of demarcation

between Convention proceedings and subsequent childcustody disputes, wherever those disputes might take

place, see Conv., Art. 16 (providing that “the judicial or

administrative authorities of the Contracting State to

which the child has been removed or in which it has been

retained shall not decide on the merits of rights of

custody”) (emphasis added); see also, e.g., Dep’t of State,

Text and Legal Analysis, 51 Fed. Reg. at 10,509

(discussing Article 16 of the Convention, which “bars a

court in the country to which the child has been taken or

in which the child has been retained from considering the

merits of custody claims”).

No case better demonstrates this treacherous path

than this one. Applying the Second Circuit’s mandate, the

district court initially worked with the parties after a

nine-day bench trial to negotiate protective measures

that might be put in place in Italy even before the Court’s

initial return order. (Pet. App. 42a, 81a-84a.) The Second

Circuit rejected these measures because there were not

sufficient guarantees that the respondent would follow

them. (Id., 27a-28a, 35a.)

The Second Circuit’s requirements for the district

court on remand were staggering and violate the very

premise of prompt disposition:

1. “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.” (Id., 36a.)

2. “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.” (Id., 36a-37a.)

3. “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 [apply to Italian

courts for relief]. 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. This is, of

course, just one of several avenues the District Court may

elect to pursue.” (Id., 38a.)

The district court then worked with Italian authorities

for nine months in an attempt to figure out whether those

authorities would enforce the undertakings. (Pet. App.

12a.) Ultimately, the district court become enmeshed in

child-custody proceedings in Italy. (Id., 17a-18a.) In order

to meet the district court’s protective-undertakings

requirements, the Italian court entered “a protective

order against the petitioner and an order directing Italian

social services to oversee his parenting classes and

psychoeducational therapy.” (Id., 17a; see also id., 20a

(same).) The district court made a substantial property

allocation as between the petitioner and respondent,

ordering Mr. Saada to pay the petitioner $150,000 to

ensure “the respondent’s financial independence from the

petitioner and his family” upon their return from Italy, at

least while the Italian courts figured out the remainder of

the child custody dispute. (Id., 22a.)

To be sure, “[t]he Convention requires a court in a

requested State to walk a delicate line between ensuring

that the application is determined promptly, and ensuring

that proper attention is paid to the important and often

strongly contested issues that can arise in the context of

Convention applications.” LRR v. COL, CA743/2018,

[2020] NZCA 209, ¶ 101.

The process mandated by the Second Circuit here is

abhorrent to both the letter and spirit of the Convention.

“Hague Convention cases are a special type of

proceedings in which this country adheres to an

international Convention which we are duty-bound to

observe and to implement. The procedure is summary,

and intended expeditiously to deal with the mischief of

wrongfully removing children from the jurisdiction of

their habitual residence.” In re M (Abduction:

Undertakings), [1995] 1 FLR 1021, 1024 (Butler-Sloss,

LJ). And “[t]he temptation to conduct a full inquiry into

the welfare and best interests of the child must be

resisted. A lengthy and wide-ranging inquiry of that kind

would defeat one of the Convention’s central objectives:

ensuring the prompt return of children who have been

wrongfully removed or retained, where none of the

exceptions applies.” LRR v. COL, CA743/2018, [2020]

NZCA 209, ¶ 101; Arthur & Secretary, Dep’t of Fam.

Comm. Servs. v. Anor, Family Court of Australia, [2017]

FamCAFC 111, ¶ 76 (same); cf. Thomson v. Thomson,

1994 CarswellMan 91 (Can. Sup. Ct.), ¶ 86 (undertakings

permissible “provided that such undertakings are made

within the spirit of the Convention,” where “any shortterm harm to the child is ameliorated”).

B. The Second Circuit’s judicially imposed protectiveundertakings mandate also undermines, rather than

fosters, fundamental comity interests. To begin, it does

not further comity interests to have United States courts

openly criticizing their foreign domestic peers. E.g.,

Davies v. Davies, 2017 WL 361556, at *21 (S.D.N.Y. Jan.

25, 2017), aff’d 717 F. App’x 43, 49 (2d Cir. 2017) (“the

Court finds the legal system in St. Martin to be

inadequate to protect Ms. Davies and K.D. from Mr.

Davies’s abuse”). To the contrary: “Respect for the

sovereignty of foreign nations and legitimate foreign

policy concerns counsel against having American courts

sit in judgment of their foreign counterparts.” Wright &

Miller, 14 D. Fed. Prac. & Proc. Juris. § 3828.3.

And, for those unwilling to openly criticize their

foreign domestic peers, “institutional pressures will

predictably cause judges to overestimate the safety that

will exist upon return.” Letter from Merle H. Weiner,

Esq., Philip H. Knight Professor of Law, University of

Oregon to Michael Coffee, U.S. Dep’t of State (Sept. 2,

2017), at pg. 6. As Professor Weiner explains: “Not only

do institutional dynamics give the entities in the child’s

habitual residence reason to minimize the uncertainties

and problems with protective measures, but institutional

dynamics also give judges adjudicating petitions reason

to accept without question the information provided.”

(Id.)

We have frequently seen evidence of this overdeference phenomenon in the forum non conveniens

context. Here, notwithstanding “general accusations of

corruption, delay, or other problems with the alternative

forum’s judicial system,” federal courts “appear reluctant

to look closely at the quality of justice or competence of

judicial personnel in the alternative forum.” Arthur R.

Miller, 14D Fed. Prac. & Proc. Juris. § 3828.3 (4th Ed.,

Oct. 2020 Update). And, “by categorically rejecting

generalized accusations of corruption, delay, and other

inadequacies in foreign judicial systems, or imposing too

high a level of proof on these points, federal courts ignore

the realities of the nature of the justice systems of many

nations.” Id.; see also Virginia A. Fitt, Note, The Tragedy

of Comity: Questioning the American Treatment of

Inadequate Foreign Courts, 50 Va. J. Int’l L. 1021, 1044

(2010) (concluding that “[t]he reality of systemic

corruption inherent in some foreign courts,” “as well as

challenges to the logic underpinning the current practice

of American comity,” “justifies adherence to a less

dogmatic form of judicial deference”).

Where forum non conveniens may result in improper

dismissal of a civil action, here the over-deference will

result in transfer of a child to a situation where his or her

life is at risk. Notably, several of our treaty partners have

a demonstrated record of noncompliance with their treaty

obligations under the Child Abduction Convention. See,

e.g., Report on Compliance, April 2020, United States

Dep’t of State, at 12-27 (detailing signatories

demonstrating a pattern of noncompliance with the

treaty, including Argentina, Brazil and Ecuador); id. at 12

(noting that “the Argentine judicial authorities failed to

regularly implement and comply with the provisions of

the Convention,” and “[a]s a result of this failure, 25

percent of requests for the return of abducted children

remained unresolved for more than 12 months”; “[o]n

average, these cases were unresolved for more than nine

years and 10 months”) (emphasis added).

The Court Should Reverse the Judgment of the

Second Circuit and Keep B.A.S. Here at Home.

For all of these reasons, the Cox Center agrees with

the petitioner and the United States: the consideration of

protective undertakings in Convention proceedings is by

no means mandatory, and to the extent considered at all

they should be limited in scope and designed solely to

ensure the safe return of the child to the country of

habitual residence until the courts of that country can

protect the child. (Br. for the U.S. as Amicus Curiae (Oct.

2021), at pgs. 8, 10; Pet. Br. 14-15, 28-31.)

This is particularly so in the United States, where the

enforcement of any potential undertakings cannot be

guaranteed, and the party opposing return already must

demonstrate grave risk of an intolerable situation under

a heightened burden of proof (clear and convincing

evidence). In domestic-violence cases in particular, an

abusive parent should not be allowed to change the facts

by manufacturing an alternate universe of facts that

might or might not exist upon return based on promises

of proposed undertakings that United States courts

cannot automatically enforce in any event.

Adopting this interpretation of the Convention applies

this fundamental maxim of contract interpretation: “A

court must interpret contractual provisions in a way that

gives effect to every term of the instrument, and that, if

possible, reconciles all of the provisions when read as a

whole.” Stockman v. Heartland Industrial Partners, L.P.,

2009 WL 2096213, at *6 (Del. Ch. Ct. Jul. 14, 2009) (Strine,

J.) (quoting Council of the Dorset Condo. Apts. v. Gordon,

801 A.2d 1, 7 (2002)); AEP Energy Services Gas Holding

Co. v. Bank of Am., N.A., 626 F.3d 699, 729 (2d Cir. 2010)

(“the primary concern when interpreting a contract is to

ascertain and give effect to the intent of the parties as that

intent is expressed in the contract”; “[n]o single provision

taken alone will be given controlling effect; rather, all the

provisions must be considered with reference to the whole

instrument.”) (quotation omitted).

As applied here, this principle means the Court should

reverse the judgment of the Second Circuit and keep

B.A.S. in the United States, which is now the only home

he knows. In cases of severe and domestic abuse, like this

one, our sister signatories have not hesitated in refusing

to enter a return order. LRR v. COL, CA743/2018, [2020]

NZCA 209, ¶¶ 81, 87 (denying return petition based on

extensive domestic violence toward the child’s mother;

“The mother fears for her safety in Tasmania, where she

will be living in proximity to the father and will probably

be forced to interact with him to some extent in

connection with arrangements concerning H. This fear is

well grounded in fact.”); Achakzad v. Zemaryalai, 2010

Ont. Ct. of Just. 318 [Can. LII], ¶ 95 (same; “Canadian

and U.S. courts, as well as the courts of other Hague

signatories, have recognized, that in some Article 13(b)

cases, a return order simply cannot be made.”); compare

Quinn v. Millsap, 491 U.S. 95, 106-07 (1989) (refusing to

remand where “there is no good reason to delay the

resolution of this issue any further”).

CONCLUSION

“No-one intended that an instrument designed to

secure the protection of children from the harmful effects

of international child abduction should itself be turned

into an instrument of harm.” In re D (a child), [2006]

UKHL 51, ¶ 52.

In this case, the district court expressly found that the

petitioner established the grave-risk exception by clear

and convincing evidence (Pet. App. 80a), and there were

never any limited undertakings that could have been put

in place to negate this finding (id., 34a-35a).

The judgment of the Second Circuit should be

reversed, and the Court should order that B.A.S. remain

in the United States.

Respectfully submitted,

Dated: January 26, 2022