Case Update (16 May 2024): Tereshchenko v. Karimi; a child is permitted to be returned temporarily to a third-country as an ameliorative measure if the habitual residence would pose a grave risk
This appeal to the U.S. Court of Appeals for the Second Circuit arises out of an order to return two Ukrainian habitually resident children to their father in France under the Hague Abduction Convention. The Respondent Mother appealed, arguing, among other things, that the court lacked subject matter jurisdiction, that the court erroneously concluded that a return to western Ukraine would not expose the children to a grave risk of harm, and that the court lacked the power under the 1980 Convention to send children to a country that is not their habitual residence. The COA for the 2nd Circuit affirmed, in part, and remanded for the district court to amend its order sending the children to their father in France.
For the grave risk of harm exception, “[w]e have observed that a ‘grave risk of harm’ defense that meets the Article 13(b) standard may arise ‘where returning the child means sending him to a zone of war, famine, or disease.’” The 2nd Circuit noted that when the district court found no grave risk in returning the children to western Ukraine, it relied heavily on a UK court opinion, issued on September 21, 2022, that found no grave risk of harm in returning children to western Ukraine. The 2nd Circuit found that the UK opinion “strikes us as not especially probative of general conditions in western Ukraine at the time of the District Court’s ruling in January 2024.” “… the District Court here did not inquire into the details of conditions in a specific city and residence in Ukraine to which the children could be brought.” “… the record contains little evidence on the conditions that the children would face if returned to [Petitioner] in L’viv” (where he suggested locating the children if returned to Ukraine). In light of evidence of U.S. State Department travel alerts to Ukraine for U.S. Citizens, and July 2023 missile strikes in L’viv, “we disagree with the District Court that [Petitioner’s] mere representation that he would be willing to receive the children in Ukraine and then move with the children to ‘a location in western Ukraine that is outside the zone of combat and danger’ was ‘sufficient to defeat [Respondent’s] Article 13(b) [grave-risk] defense.’”
Despite the 2nd Circuit’s disagreement with the district court over the grave risk of harm exception, it noted that it reached the same conclusion to return the children as the district court, and therefore affirm the return. “We do so because the Convention permits - as a temporary ameliorative measure - a court in certain rare circumstances to return a child to a petitioner who is not himself in the place of habitual residence, but temporarily in a third country. The ongoing war in Ukraine simply precludes entry of the ordinary Hague Convention order.” Based on this conclusion, the 2nd Circuit required the district court to re-draft its return order to “secure the continued authority of the Ukrainian courts over the children and over the parents’ respective custody rights.” It said that “[a]bsent such tailoring, the order has the effect of an impermissible custody determination.”
Citing to Golan v. Saada, the 2nd Circuit noted that a court has the discretion, when it determines a child is faced with a grave risk of harm, to return or not return a child, and, in “exercising that discretion, the district court may consider whether to impose ‘ameliorative measures’ - conditions that parents or state authorities shall follow - to help mitigate the risks that the child would face upon her return.” Golan imposed two limits on the court’s discretion: to prioritize the child’s safety and to not effect the merits of the underlying custody claim. “We see no reason why the Convention would categorically bar district courts from, as an ameliorative measure, ordering a child to temporarily reside in a third country to mitigate a grave risk of harm in the state of habitual residence.” In this particular case, the 2nd Circuit found the court could order the child to a third country, as an ameliorative measure, but that the court did not adhere to its 2nd limitation, imposed by the Golan opinion - not effecting the merits of the underlying custody claim. Hence, the remand. The 2nd Circuit noted that the District Court’s return order imposed no limitations on the time and scope of the children’s residence in France or on the children’s residence with their Father. It also contained no conditions to preserve custody jurisdiction in Ukraine while the children are in France. Due to these deficits, the 2nd Circuit seemed to think that the return order had the “practical effect” of granting the Father physical custody over the children in France, which is prohibited. On remand, the 2nd Circuit ordered the District Court to fashion a return order that was limited and temporary, directs the children to stay with their Father in France, commits him to making the children available for the Ukrainian proceedings as required, and directs the parties to abide by the final custody order of the Ukrainian courts.
