Supreme Court follows reasoning of CWRU amicus brief in landmark decision interpreting the Hague Convention on Child Abduction

On June 15, the U.S. Supreme Court issued a unanimous decision in Golan v. Saada, a case about how to interpret the Hague Convention on Child Abduction in which the Frederick K. Cox International Law Center at Case Western Reserve University School of Law filed an amicus brief.  The brief was co-authored by Co-Dean Michael Scharf, Associate Dean Avidan Cover, Clinic Professor Andrew Pollis, Director of the Cox Center Stephen Petras, and alumnus David Carney (LAW ‘05), a partner at BakerHostetler law firm in Cleveland. 

The issue at the heart of the case was whether a child taken to the United States by his American mother should be returned to his Italian father in Italy in light of the father’s violent tendencies. The Hague Convention on Child Abduction provides an expedited process for returning children who have been taken from their state of habitual residence. But it contains an exception in Article 13(b) where 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. 

The trial court recognized the grave risk to the child but held that “protective undertakings” provided by the Italian judicial system (such as monitoring the father’s visitation) were sufficient to protect the child, and the Second Circuit Court of Appeals upheld the decision, creating a Circuit split.

The Cox Center brief argued that the Supreme Court should reject the Second Circuit’s judicial amendment to the Child Abduction Convention, requiring the consideration of protective undertakings after a finding of grave risk to the child under Article 13(b) of the convention. To support its argument, the Cox Center analyzed the treaty text in light of its object and purpose, discussed a series of cases interpreting the treaty by foreign courts around the globe, and delved into whether U.S. courts are capable of fairly assessing foreign judicial systems to determine if protective undertakings are adequate in such a case. 

“In this case, the district court expressly found that the petitioner had shown the grave risk exception was met. No more should have been required of her, and thus the judgment of the Second Circuit should be reversed,” the brief argued. 

Applying the reasoning of the Cox Center brief, the Supreme Court reversed the circuit court’s decision.   According to David Carney: “The ultimate upshot of what the Court held was exactly what we had argued—that courts hearing petition proceedings are not required to consider ameliorative measures (particularly if they aren’t offered), but if they were offered the court should limit their scope in accord with the other competing interests at the heart of the convention—protection of the child, expeditious proceedings, and (less on this point) to avoid entangling lower courts in child custody disputes.”

“It was gratifying to see the Supreme Court, in reversing the holding of the Second Circuit Court of Appeals, draw on points that we argued in our amicus brief,” added Pollis. 

“The Supreme Court may not have taken the case, and the U.S. government may not have filed a brief in favor of overturning the Second Circuit if not for the Cox Center’s initial amicus brief in favor of cert and its brief on the merits,” added Dean Scharf.  “This was an important win for both the Cox Center and international law in the Supreme Court.”

Assisted by CWRU Law students, the faculty associated with the Cox International Law Center have submitted amicus briefs before the Appeals Chamber of the International Criminal Court and the U.S. Supreme Court in several cases. Celebrating the 30th anniversary of its endowment this year, 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 34 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 argued before the Appeals Chamber of the International Criminal Court, testified before the Senate Foreign Relations Committee and been cited in the opinions of the U.S. Supreme Court, the International Court of Justice and International Criminal Tribunals. They have won four 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.