Supreme Court Follows Reasoning of Amicus Brief co-authored by PILPG Co-Founder Michael Scharf in Landmark Case 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 PILPG Co-Founder Dean Michael Scharf co-authored an amicus brief. The brief was co-authored by Dean Scharf’s Case Western Reserve University School of Law colleagues Avidan Cover, Andrew Pollis, Stephen Petras, and David Carney. 

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.

PILPG Co-Founder Dean Michael Scharf and his colleagues argued in their brief 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 their argument, Dean Scharf and his team 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 Brief, the Supreme Court reversed the Circuit Court’s decision. 

The PILPG team periodically submits amicus briefs to the International Criminal Court and Supreme Court, weighing in on key issues in international law during the course of Court proceedings. 

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