Case Update (24 Jan 2024): Saada v. Golan; Petitioner Father’s request to return BAS to Italy denied based on grave risk

The EDNY decided, for a fourth time, Mr. Saada’s request to have his son, now age 7, returned to Italy. Upon remand from the U.S. Supreme Court in June 2022, the district court concluded that it could still safely return the child to Italy. However, in October 2022, the Respondent Mother passed away in New York. Since that time, the child’s maternal aunt has been retaining the child in New York, and the Father’s petition substituted her as the Respondent.

The district court now concludes that returning the child, BAS, to Italy would expose the child to a grave risk of harm. The court found that BAS suffers from PTSD, and removing him from his current environment would “risk multiple harms.” It further stated that “the legal landscape in Italy is now far from clear” indicating that “there is a possibility that [BAS] would be placed in an institutional setting while the Italian court decides the issue of custody.”

In the latest iteration of this case, the district court appointed an expert to examine the minor child for autism. The expert concluded that the child did not have autism, but exhibited PTSD. The court, on October 30, 2023, asked the expert to provide her opinion on the effect on BAS of removing him from his current residential and educational setting and returning him to Italy. The doctor, after examining the scientific literature, concluded that the combination of risk factors and lack of protective measures would exacerbate the child’s symptoms.

The district court further sought clarity on the Italian proceedings after Ms. Golan’s death. After numerous expert affidavits by Italian lawyers from both parties, and direct judicial communication between a U.S. Hague Network Judge and an Italian Hague Network Judge, it seemed unclear as to whether the minor child would be placed with his father, a paternal relative, or institutionalized after returning. Further proceedings were moving forward in Italy, with Respondent participating, asking for custody of the child. But the parties further disagreed as to how far along the proceedings were, and how quickly they would achieve some type of resolution. Ultimately the district court concluded that any risk of institutionalization, given BAS’s unique circumstances, was too great a risk.

In addition to all of the above, during summer 2023, the Respondent lodged certain accusations against Petitioner while he was visiting with BAS in New York, which provoked the NY Family Court to initiate a CPS investigation. On July 20, 2023, CPS filed an “indicated” report. The district court was clear to note that the CPS’s report did not find that the allegations were actually true, and could not reach a determination as to whether the child was coached, as the father suggested. The district court, therefore, concluded that the CPS report, alone, did not demonstrate a grave risk of harm.

Invoking language of “ameliorative measures”, the court noted that it has never questioned the Italian court’s ability to make a custody decision that “prioritizes BAS’s well-being” but, given the grave risk in uprooting a child with PTSD, having lost his mother, with uncertainty as to what may happen upon his return, the “Italian authorities cannot at this point protect BAS from that risk.”

The Father’s petition was denied. There is an open custody proceeding in NY.