Amicus brief - International Academy of Family Lawyers

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 theUnited States Court of Appeals

for the Second Circuit__________________

BRIEF OF THE INTERNATIONAL ACADEMYOF FAMILY LAWYERS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT__________________

TIM AMOS

TIMOTHY SCOTT

IAN KENNEDY

ALICE MEIER-BOURDEAU

JACQUELINE RENTON

ISABELLE REIN-LESCASTEREYRES

CHARLOTTE BUTRUILLE-CARDEW

DANA PRESCOTT

FRANKIE SHAMA

INTERNATIONAL ACADEMY OF

FAMILY LAWYERS

81 Main Street, Suite 405White Plains, New York 10601

EDWIN FREEDMAN

Counsel of RecordLAW OFFICES OF

EDWIN FREEDMAN

58 Harakevet StreetTel Aviv [email protected]

Counsel for Amicus Curiae

February 24, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED FOR REVIEW

Whether a court, determining an action under theHague Convention, that made a finding under Article13b of grave risk of physical or psychological harm, candeny an order of return without considering protectivemeasures which would enable the implementation ofthe mandate to return children wrongfully removed orretained.

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE IAFL . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

iii

TABLE OF AUTHORITIES

CASES

Abbott v. Abbott,560 U.S. 1 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . 8

Blondin v. Dubois,189 F.3d 240 (2nd Cir. 1999) . . . . . . . . . . . . . . . 17

Cahue v. Martinez,137 S. Ct. 13 (2016). . . . . . . . . . . . . . . . . . . . . . . . 1

Calixto v. Lesmes,909 F.3d 1079 (11th Cir. 2018). . . . . . . . . . . . . . . 2

El Al Israel Airlines, Limited v. Tsui Yuan Tseng,525 U.S. 155 (1999). . . . . . . . . . . . . . . . . . . . . . . . 8

Friedrich v. Friedrich,78 F. 3d 1060 (6th Cir. 1996). . . . . . . . . . . . . . . . 9

In re Application of Adan,437 F.3d 381 (3d Cir. 2006) . . . . . . . . . . . . . . . . 17

Lozano v. Montoya,134 S. Ct. 1224 (2014),572 U.S. _____ (2014) . . . . . . . . . . . . . . . . . . . . . . 1

Monasky v. Taglieri,140 S. Ct. 719 (2020). . . . . . . . . . . . . . . . . . . . . . . 2

Silverman v. Silverman,312 F.3d 914, overturned en banc,338 F. 3d 886 (8th Cir. 2003) . . . . . . . . . . . . . . . . 3

Van De Sande v. Van De Sande,431 F.3d 567 (7th Cir. 2005). . . . . . . . . . . . . 13, 17

iv

STATUTES

International Child Abduction Remedies Act(ICARA), 22 U.S.C. § 9001 . . . . . . . . . . . 2, 3, 7, 14

OTHER AUTHORITIES

4J Judges Newsletter, Vol. XXIV, Summer-Fall,2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bowie v. Gaslain (No. T 15-26.664) . . . . . . . . . . . . . . 2

DP v Commissioner [2001] HCA 39 June 2001,Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Federal Circuit and Family Court of AustraliaRules, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In the Matter of AR, (Children) (Scotland) UKSC2015/0048 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Judge James D. Garbolino, Federal Judicial Center,The 1980 Hague Convention on The Civil Aspectsof International Child Abduction – A Guide forJudges (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Preliminary document No. 6 of September, 1980,Actes et documents de la Quartorzieme session,Tome III Child Abduction. . . . . . . . . . . . . . . . . . 15

Re C (Children) (Abduction: Article 13b) [2018]EWCA Civ. 2834 . . . . . . . . . . . . . . . . . . . . . . . . . 12

Re C (A Child) (Abduction: Article 13(b) [2021]EWCA Civ. 1354 . . . . . . . . . . . . . . . . . . . . . . . . . 13

Re C (A Child) (Child Abduction: Parent’s Refusal toReturn with Child) [2021] EWCA Civ. 1216 . . . . 3

v

Re G. (A Minor) (Abduction) [1989] 2FLR 475,INCADAT no. 95 . . . . . . . . . . . . . . . . . . . . . . . . . 14

Regulation 110a, Regulations of the Family Court(Procedural Rules) 5781-2020, Israel . . . . . . . . . . 4

T.B. v J.B. (Abduction: Grave Risk of Harm) 2001 2FLR 515, Court of Appeal (Civil Div.) Dec. 2000,England . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Hague Conference on Private InternationalLaw, Guide to Good Practice (2020) . . . . . . . . . . 12

1

INTEREST OF THE IAFL1

The International Academy of Family Lawyers(hereinafter: the IAFL), was formed in 1986 to improvethe practice of law and the administration of justice inthe area of divorce and family law throughout theworld. The IAFL is a worldwide association ofpracticing lawyers, currently numbering over 810Fellows in 57 countries, each of whom is recognized bythe bench and bar in his or her country as anexperienced and skilled family law practitioner.

IAFL Fellows have made presentations in theUnited States and other countries in relation to legalreforms concerning family related matters, includingthe Hague Convention, Civil Aspects of InternationalChild Abduction, (Hereinafter: The Hague Convention).It has sent representatives to participate in relevantinternational conferences, including the seven SpecialCommissions on the Implementation of The HagueConvention on the Civil Aspects of International ChildAbduction held every four years in The Hague. IAFLFellows have also written and lectured widely on theAbduction Convention and related topics, such as therelocation of children across state borders.

The IAFL filed an amicus curiae brief in Lozano v.Montoya, 134 S. Ct. 1224 (2014), 572 U.S. _____ (2014)in Cahue v. Martinez, 137 S. Ct. 13 (2016), and in

1 Pursuant to Supreme Court Rule 37.6, counsel for the amicuscertify that no counsel for a party authored any part of this briefand no person or entity other than counsel for the amicus havemade a monetary contribution to the preparation or submission ofthis brief. The parties have consented to the filing of this brief.

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Monasky v. Taglieri, 140 S. Ct. 719 (2020). It has alsofiled a brief in the U.S. Court of Appeals for theEleventh Circuit, Calixto v. Lesmes, 909 F.3d 1079(2018). Additionally, briefs have been filed by theorganization in the Supreme Court of the UnitedKingdom, In the Matter of AR, (Children) (Scotland)UKSC 2015/0048 and France, Bowie v. Gaslain (No. T15-26.664).

The IAFL’s interest in the instant case relates to itsconcern that implementation of the AbductionConvention, which is an effective means for bothdeterring child abductions and enabling the promptreturn of children unlawfully removed from theirhabitual residence, will be severely undermined if thejudgment of the Second Circuit is overturned. Manychild abduction cases are brought to court in signatoryStates by IAFL Fellows. The IAFL has a significantprofessional and policy interest in preserving thedeterrent effect of the Abduction Convention andensuring the prompt return of wrongfully removed orreturned children to their habitual residence.

The IAFL is acting pro bono in submitting this brief.

STATEMENT OF THE FACTS

The International Academy of Family Lawyersadopts the facts as they are stated in the Respondent’sbrief.

SUMMARY OF THE ARGUMENT

The first of the two stated objects of the HagueConvention is “a: to establish procedures for the promptreturn of children wrongfully removed to or retained in

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any Contracting State; ….”. The Hague Convention,while outlining the conditions of those procedures, doesnot establish hard and fast rules as to their nature.Each contracting State has adopted its own set ofregulations to implement the Hague Convention. TheUnited States implementing legislation of the HagueConvention is the International Child AbductionRemedies Act ((ICARA), 22 U.S.C. sec. 9001). Issuesnot resolved by ICARA have been determined by thecourts. It has been held, for instance, that there is noright to a jury trial in a Hague Convention procedure,(see Silverman v. Silverman, 312 F.3d 914, overturneden banc, 338 F. 3d 886, 8th Cir. 2003). Furthermore,member States have adopted different proceduresregarding presentation of oral evidence, on which theConvention is silent. As an example, proceedings in theUnited States include the examination of parties andwitnesses while proceedings in the United Kingdom aregenerally determined based on written submissionsalone. “Hague Convention proceedings were summaryand oral evidence was not ordinarily adduced”, (Re C (AChild) (Child Abduction: Parent’s Refusal to Returnwith Child) [2021], EWCA Civ. 1216. These and otherprocedural matters are not referred to in theConvention.

The Hague Convention calls for the States to actexpeditiously when determining a petition for thereturn of a minor child and refers to a non- bindingperiod of six weeks to determine the outcome of thelegal proceedings (Article 11 of the Convention). Atleast one contracting State, Israel, has adoptedimplementing regulations that make the 6 week periodmandatory for the conclusion of legal proceedings in

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the first instance, while other States use it as a non-binding point of reference. (See Regulation 110a,Regulations of the Family Court (Procedural Rules)5781-2020, Israel).

Although the Hague Convention makes no specificreference to protective measures, the courts in variouscontracting States, including the US, have adoptedwhat was initially referred to as “safe harbor”provisions. These provisions, primarily monetary innature, were imposed by courts in circumstances wherea return order was made but the abducting parentlacked the resources to provide housing andmaintenance during the initial transitional period. Asthe defenses raised under Article 13b became moreexpansive, so did the response of the courts. In order toprovide assurances which would alleviate the concernsraised under Article 13b, undertakings were imposedwhich extended beyond temporary financialarrangements and provided for legal assurances thatsafe-guarded the well-being of the returning children intheir initial return to their habitual residence. Suchundertakings often include guarantees against criminalprosecution of the abducting parent, vacating anytemporary parenting orders in favor of the left behindparent which were issued post abduction and orders ofprotection. (see: The 1980 Hague Convention on TheCivil Aspects of International Child Abduction- A Guidefor Judges, Judge James D. Garbolino, FederalJudicial Center, March, 2016, Undertakings, p.98)

Courts have used various methods to ensure thatthe undertakings will be respected. In some cases aletter by the local district attorney guaranteeing that

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criminal charges would not be filed against theabducting parent had to be submitted before the returncould be implemented. In other cases, such as in thepresent matter, monetary guarantees or cash depositshad to be executed. Additional undertakings mightinclude a joint application by the parties for anemergency hearing before the competent court in theState of habitual residence prior to the departure datein order to ensure swift judicial action upon thechildren’s return.

The most effective way to ensure that thoseundertakings which are to be implemented after thechildren’s return will be enforced by the requestingState is by executing a mirror order. A mirror order canbe obtained in common law jurisdictions with relativeease and swiftness in the requesting State withoutcausing delay or incurring burdensome legal fees. Asimple application by consent for domesticating aforeign order, along with a translation into theappropriate language where necessary, will generallyresult in the issuance of a mirror order within two tothree weeks of application. As the courts of firstinstance, when issuing an order of return, routinelygrant stays of execution in order to allow for the filingof an appeal, mirror orders are not, in fact, a cause fordelay.

Furthermore, compared to the financial burdensimposed by some courts as part of the undertakings, inthe present case a deposit $150,000., the costs involvedin obtaining a mirror order are inconsequential.

In civil law jurisdictions, such as France andGermany, courts will rely on the affirmation of the

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Central Authority of the requesting State to provideassurances regarding the enforcement of undertakingsinstead of mirror orders.

The Hague Convention is unique in that thegovernments of the contracting States are not theimplementing authority but rather the judicial systemsof those States. The Hague Convention’s objectives canonly be met if the courts of the contracting Statescooperate in implementing the stated aims of theConvention. While recognizing that there may bedifferences in the legal systems and social servicesexisting in the various contracting States, each Statemust recognize the competence of the other memberStates to implement the provisions of the HagueConvention. Failure to do so will turn the HagueConvention into a parochial instrument in which thecourts of each contracting State measure its judicialsystem against those of the other States.

Undertakings per se are not mentioned in the bodyof the Hague Convention. That is not to say that theyhave not become a necessary instrument in certaincircumstances in order to carry out the Conventionobjectives. The International Hague Network of Judgesis also not mentioned in the body of the HagueConvention but was established subsequently to itsratification and today consists of 148 judges in 88States providing assistance to judges determiningproceedings under the Hague Convention.

The Network is particularly useful in the drafting ofundertakings and their implementation in therequesting State. The Network of Judges publishes aJudges Newsletter which wrote about undertakings as

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follows: “Safe harbour orders come in all shapes andsizes. They are frequently conditions to return. Anexample is the important, but often overlooked, urgentmeasure whereby both parents are restrained fromcausing, permitting or suffering the child who has beenreturned to the State of habitual residence under the1980 Child Abduction Convention to be furtherremoved from the home State until a court ofcompetent jurisdiction in that State makes ordersenabling the parents (or one of them) to travelinternationally with the child. Having regard for theprocedure to render an urgent measure enforceable inanother Contracting State, the subject matter andenforceability of urgent measures cannot be anafterthought for the judge or the parties. The potentialnecessity for urgent measures should be consideredfrom the outset.” (4J Judges Newsletter, Vol. XXIV,Summer-Fall, 2019).

ARGUMENT

The primary objective of the Hague Convention is topromptly return minor children who are unlawfullyremoved or retained in a State other than their Stateof habitual residence. To argue that courts should notbe obligated to consider measures which would enablethem to fulfill the Convention goals is to deliberatelyundermine those goals. The issue of enforceability ofsuch measures is for each individual court to determineaccording to the circumstances of the case. Whetherthere are appropriate ameliorative measures in aparticular case is a practical, not a principled,consideration. A court which fails to consider suchmeasures would be remiss in its duties to carry out the

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goals of the Hague Convention, thus undermining thecommitment of the United States when it ratified theConvention.

To argue against the obligation to considerprotective measures is to assume one of two positions:That no protective measures can ever be effective; orthat even if such measures may be effective, thepreferred option is to permit the wrongful removal orretention of a child. Neither of those positions shouldbe adopted by this Court.

The U.S. Supreme Court has expressed the need totake into account the views of the other contractingStates.

“The court’s view is also substantially informedby the views of sister contracting states on theissue, see El Al Israel Airlines, Ltd. v. Tsui YuanTseng, 525 U.S. 155, 176, particularly becausethe ICARA directs that “uniform internationalinterpretation” of the Convention is part of itsframework, see sec. 11601(b)(3)(B). While theSupreme Court of Canada, has reached anarguably contrary view, and French courts aredivided, a review of the international lawconfirms that courts and other legal authoritiesin England, Israel, Austria, South Africa,Germany, Australia, and Scotland have acceptedthe rule that ne exeat rights are rights ofcustody within the Convention’s meaning.”Abbott v. Abbott, 560 U.S. 1, 3 (2010).

The underlying assumption of the member States isthat each jurisdiction respects the ability of the other

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contracting States to carry out the directives of theHague Convention. It also is inherent to thefunctioning of the Convention that each State relies onthe judicial and support systems of the othercontracting States to adequately determine the bestinterests of the minor children in their jurisdiction andto provide for the welfare of their parents.

The 6th Circuit Court of Appeals commented on theneed to rely on the legal systems of contracting States:

“When we trust the court system in the abductedfrom country, the vast majority of claims ofharm-those that do not rise to the level ofgravity required by the Convention – evaporate.”(Friedrich v. Friedrich, 78 F. 3d 1060, 6th Cir.1068, 1996)

A party who argues against that assumption mustcarry the burden of proof to prove otherwise.

“ In this context, the court is entitled and boundto take the view in the absence evidence to thecontrary that the courts of New Zealand canmake appropriate protective orders, extending ifnecessary to a full prohibition of any form ofcontact or entering the area where the familylive, and can effectively punish any non-compliance. Should the mother in this caseadduce proper evidence before implementationtakes place which explains to the satisfaction ofthe court that, contrary to the basis on which Iproceed, the protection of the courts in NewZealand does not afford either in practice ortheory adequate protection from MH to the

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children to be returned or to herself (assumingshe continues to be their primary carer) then Iwould consider that this court has adequatejurisdiction to entertain an application for thereview of the order of return.”T.B. v J.B. (Abduction: Grave Risk of Harm)2001 2 FLR 515, Court of Appeal (Civil Div.)Dec. 2000, England.

The decision as to whether or not undertakings areappropriate in a specific matter and the nature of thoseundertakings is clearly within the discretion of eachcourt. By not considering the possibility ofundertakings, a court is summarily dismissing thepossibility that the requesting State is capable orwilling to enforce protective measures upon the minor’sreturn. Such a position would leave the court in eachcase to make a determination based not on the specificsof the particular case but rather on the court’s generalassessment of the legal system of a member State. Thatis a formula which will undermine the uniformimplementation of the Hague Convention and endangerfuture cooperation between the respective courts andState authorities.

“Too much should not, in my view, be made ofthe difficulty of enforcing such undertakings.Such problems are inherent in cases involvingforeign jurisdictions but they cannot be allowedto undo the strong initiatives of theinternational community reflected in theachievement of the Convention. Undertakingsare now a common feature of such cases. Thereis no mention in the casebooks that I could find

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of practical difficulties that have arisen inconforming to such undertakings. This courtneed not be concerned about such problemswhere they are not shown to exist. At least weshould not pass upon them in the absence of aclear challenge on the record either to the powerto exact undertakings generally or to obtainthem in the form required.” DP v Commissioner [2001] HCA 39 June 2001,Australia.

The Federal Circuit and Family Court of AustraliaRules, 2021 specify the relatively simple procedure forthe registration of a foreign order. A certified copy ofthe overseas order and a certificate signed by an officeof the overseas court stating that the order isenforceable in that jurisdiction is sent to the Secretaryof the Attorney General’s office. The Secretary thensends those documents to a Registrar of the FederalCircuit and Family Court who has the power to file theorder, making it enforceable throughout Australia.

Under Schedule 4, Part 38.4 of the above Rules, aJudicial Registrar has the authority to register anoverseas child protective order received other thanfrom the Secretary of the Attorney General’sDepartment.

The Court of Appeals in England has held that thefailure of the trial court to consider ameliorativemeasures after finding that a defense had been madeunder Art. 13b was reversable error. In remanding thecase for further determination, the appellate courtfound error in the lower court judge’s reasoning; “Thefailure by the judge to address the nature of the risk of

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domestic violence occurring in the future and to answerwhy that would not be sufficiently ameliorated by themeasures proposed by the father are, in my view,fundamental gaps in the reasoning which cannot befilled by this court.” Re C (Children) (Abduction: Article13b), [2018] EWCA Civ. 2834, par. 501q.

The Hague Conference on Private InternationalLaw published a Guide to Good Practice regarding theimplementation of various issues arising under theConvention. The Guide to Good Practice is expandedtime to time as it addresses various issues arisingunder the Abduction Convention. The Guide is issuedby committees consisting of representatives of memberStates specifically appointed by the Permanent Bureauof the Hague Conference on Private International Lawdue to their expertise in the implementation of theHague Convention. In 2020, the Guide issued itsrecommendations regarding Article 13b, Guide to GoodPractice; Part IV, Art. 13b, stating that courts need toconsider protective measures where there is evidenceof grave risk upon return to the habitual residence.

While the Guide’s recommendations are notbinding, they certainly reflect the preferred approachto the implementation of the Hague Convention by theexperts of the member States. The recommendationswhich it contains are relied upon by the courts indetermining matters according to the Convention. TheEnglish Court of Appeals remanded a case to the trialcourt which had rejected the father’s petition for returnfor failing to follow the Guide. It held that beforedismissing the petition on grounds of grave risk, thecourt needed to consider “the availability of adequate

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and effective measures of protection in the State ofhabitual residence” as set out in the Guide to GoodPractice. (Re C (A Child) (Abduction: Article 13(b)[2021] EWCA Civ. 1354. Thus, the claim that theConvention does not contain any provisions forundertakings ignores the reality of the preferredapproach to this issue which has been adopted by themember States.

Concern regarding the enforceability of ameliorativeorders is easily and routinely resolved by making thereturn order conditional upon fulfillment of theprotective measures. If the undertakings ordered bythe court are not fulfilled, the return order is vacated.(Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir.2005). The obligation to domesticate the undertakingsby order in the requesting State has resulted in the useof mirror orders. Such orders are a catch-all descriptionfor the swift and simplified domestication of theundertakings as an order issued in the State ofhabitual residence. Once a mirror order is issued, all ofthe undertakings have the same effect as any otherorder issued by the court of the requesting State. In theevent that they are violated after the return, the legalsystem of the requesting State can apply the sameenforcement measures that it would to any other orderwhich it issued.

Should the abducting parent undermine theimplementation of the protective measures by failing tocooperate in obtaining a mirror order, the court canorder the return without requiring the production of amirror order. Under those conditions, mirror orders canbe obtained quickly and with little cost. The time

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involved generally varies from between one to threeweeks, far less time than it takes to obtain an expertopinion concerning grave risk claims.

The claim that undertakings may be seen as aninfringement of the jurisdiction of the requesting Stateshould be rejected. The use of mirror orders is notlimited to Hague Convention cases. They are ofteneffectively used in matters involving the internationalrelocation of children. Such orders in effect recognizethe authority of the court of habitual residence to ruleon custodial matters while facilitating the transitionuntil the local court can deliberate on the case andissue orders.

In requiring undertakings, the court seized ismerely seeking to ensure the short-term safety of thechild. Such measures will persist only until the court inthe State of the child’s habitual residence is seized ofthe substantive custody proceedings. Undertakings arerequested to ensure that both abductor and child areprovided for upon their return. The undertakings werenot designed to circumscribe or influence therequesting State. (Re G. (A Minor) (Abduction) [1989]2FLR 475, INCADAT no. 95).

The creation of Central Authorities to implementthe Convention in each contracting State provides areadily available resource to assist in providinginformation about the legal and administrativeauthorities in the requesting State. (See Chapter II,Articles 6 and 7 of the Convention). Amongst the dutiesof the Central Authorities are: “to provide informationof a general character as to the law of their State inconnection with the application of the Convention;

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(Article 7(e) and “to provide such administrativearrangements as may be necessary and appropriate tosecure the safe return of the child;” (Article 7(h).Central Authorities are regularly called upon toprovide the court in the requested State withinformation regarding the laws of custody, orders ofprotection, the existence of support agencies and otherinformation in the requesting State that would assistthe court in drafting a return order.

The deliberations conducted by the delegates whodrafted the Convention contemplated the obtaining ofinformation from Central Authorities which wouldenable the decision making authority to adopt anintermediary position in doubtful cases. Preliminarydocument No. 6 of September, 1980, published in Acteset documents de la Quartorzieme session, Tome IIIChild Abduction at page 243, contains the comments ofthe United States delegation regarding preliminaryArticle 12. The United States proposed to add a newsecond paragraph to preliminary article 12:

“When a court determines that substantial riskas described in b above may exist, it may referthe matter to the Central Authority of the Stateof origin and return the child to an appropriateperson or public or private institution in thatState.”

The U.S. delegate explained their proposal asfollows:

“The new second paragraph of this proposedrevision would enable the decision making bodyto adopt an intermediary position in doubtful

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cases. Ultimately the State of origin woulddecide whether the child is to be returned to theapplicant or is to be placed with a third personor institution or to be returned to the allegedabductor.”

The role of the Central Authority in supplyingrelevant information regarding the terms of the returnorder and the appropriate body with whom the childwas to be placed was clearly considered by the draftersof the Convention. The development of undertakings bycase law is therefore rooted in the deliberations of theConvention drafters.

CONCLUSION

The Hague Convention obligates contracting Statesto take appropriate measures to secure the promptreturn of children wrongfully removed or retained in aState which is not his or her habitual residence. Inorder to implement said obligation where there is afinding of grave risk according to Article 13b, courtshave made return orders contingent upon fulfillingcertain undertakings. Such undertakings may beguaranteed by means of various mechanisms, includingmonetary deposits, mirror orders and the assurances ofthe Central Authority of the requested State.

The obligation to order the swift return of childrenwrongfully removed to or retained in a jurisdictionother than his or her habitual residence mandates thatameliorative measures be considered by courts beforedenying a petition for return. It is within the discretionof the courts to determine whether such measures areappropriate after they have been duly considered.

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Given the different approaches of the FederalCircuits to the use and implementation ofundertakings, this Court should adopt the approachwhich most conforms with the goals of the HagueConvention to deter the wrongful removal of childreninternationally and to implement their prompt returnwhen wrongful removals have occurred. That is theapproach taken by the Second Circuit in Blondin v.Dubois (Blondin I) (189 F.3d 240 (2nd Cir. 1999) andfollowed by the Third Circuit, (In re Application ofAdan, 437 F.3d 381,3d Cir. 2006) and the SeventhCircuit, (Van De Sande, ibid.). This approach requiresthat where there is a finding of grave risk under Article13b, the court must consider undertakings to overcomethe possible grave risk of harm before denying apetition for return.

Respectfully submitted,

TIM AMOS

TIMOTHY SCOTT

IAN KENNEDY

ALICE MEIER-BOURDEAU

JACQUELINE RENTON

ISABELLE REIN-LESCASTEREYRES

CHARLOTTE BUTRUILLE-CARDEW

DANA PRESCOTT

FRANKIE SHAMA

INTERNATIONAL ACADEMY OF

FAMILY LAWYERS

81 Main Street, Suite 405White Plains, New York 10601

EDWIN FREEDMAN

Counsel of RecordLAW OFFICES OF

EDWIN FREEDMAN

58 Harakevet StreetTel Aviv [email protected]

Counsel for Amicus Curiae