Golan v. Saada

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 666–684
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 15, 2022
REBECCA A. WOMELDORF
reporter of decisions
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666 OCTOBER
TERM, 2021
Syllabus
GOLAN v. SAADA
certiorari
to the united states court of appeals for
the second circuit
No. 20–1034. Argued March 22, 2022—Decided June 15, 2022
The Hague Convention on the Civil Aspects of International Child Abduc-
tion requires the judicial or administrative authority of a Contracting
State to order a child returned to the child's country of habitual resi-
dence if the authority fnds that the child has been wrongfully removed
to or retained in the Contracting State. The authority “is not bound
to order the return of the child,” however, if the authority fnds that
return would expose the child to a “grave risk” of “physical or psycho-
logical harm or otherwise place the child in an intolerable situation.”
The International Child Abduction Remedies Act (ICARA) implements
the Convention in the United States, granting federal and state courts
jurisdiction over Convention actions and directing those courts to decide
cases in accordance with the Convention.
Petitioner Narkis Golan, a United States citizen, married respondent
Isacco Saada, an Italian citizen, in Italy, where they had a son, B. A. S.,
in 2016. In 2018, Golan few with B. A. S. to the United States to attend
a wedding and, instead of returning to Italy, moved into a domestic
violence shelter with B. A. S. Saada thereafter timely fled a petition
with the U. S. District Court for the Eastern District of New York,
seeking an order returning B. A. S. to Italy pursuant to the Hague
Convention. The District Court concluded that B. A. S. would face a
grave risk of harm if returned to Italy, given evidence that Saada had
abused Golan and that being exposed to this abuse harmfully affected
B. A. S. The court, however, ordered B. A. S.' return to Italy, applying
Second Circuit precedent obligating it to “examine the full range of op-
tions that might make possible the safe return of a child” and concluding
that ameliorative measures could reduce the risk to B. A. S. suffciently
to require his return. The Second Circuit vacated the return order,
fnding the District Court's ameliorative measures insuffcient. Be-
cause the record did not support concluding that no suffcient ameliora-
tive measures existed, the Second Circuit remanded for the District
Court to consider whether such measures, in fact, existed. After an
examination over nine months, the District Court identifed new amelio-
rative measures and again ordered B. A. S.' return. The Second Cir-
cuit affrmed.

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667
Syllabus
Held: A court is not categorically required to examine all possible amelio-
rative
measures before denying a Hague Convention petition for return
of a child to a foreign country once the court has found that return
would expose the child to a grave risk of harm. Pp. 676–684.
(a) “The interpretation of a treaty, like the interpretation of a statute,
begins with its text.” Abbott v. Abbott, 560 U. S. 1, 10 (internal quota-
tion marks omitted). When “a child has been wrongfully removed or
retained” from his country of habitual residence, Article 12 of the Hague
Convention generally requires the deciding authority (here, a district
court) to “order the return of the child.” T. I. A. S. No. 11670, S. Treaty
Doc. No. 99–11, p. 9. But Article 13(b) of the Convention leaves a court
with the discretion to grant or deny return, providing that a court “is
not bound to order the return of the child” if it fnds that the party
opposing return has established that return would expose the child to a
“grave risk” of physical or psychological harm. Id., at 10. Nothing in
the Convention's text either forbids or requires consideration of amelio-
rative measures in exercising this discretion. Pp. 676–679.
(1) Saada's primary argument is that determining whether a grave
risk of harm exists necessarily requires considering whether any amelio-
rative measures are available. The two questions, however, are sepa-
rate. A court may fnd it appropriate to consider both questions at
once, but this does not mean that the Convention imposes a categorical
requirement on a court to consider any or all ameliorative measures be-
fore denying return based on a grave-risk determination. Pp. 677–678.
(2) The discretion to courts under the Convention and ICARA in-
cludes the discretion to determine whether to consider ameliorative
measures that could ensure the child's safe return. The Second Cir-
cuit's contrary rule—which imposes an atextual, categorical require-
ment that courts consider all possible ameliorative measures in exer-
cising discretion under the Convention, regardless of whether such
consideration is consistent with the Convention's objectives—“in prac-
tice, rewrite[s] the treaty,” Lozano v. Montoya Alvarez, 572 U. S. 1, 17.
Pp. 678–679.
(b) A district court's consideration of ameliorative measures must be
guided by the legal principles and other requirements set forth in the
Convention and ICARA. The Second Circuit's rule improperly ele-
vated return above the Convention's other objectives. The Convention
does not pursue return exclusively or at all costs. Courts must remain
conscious of all the Convention's objectives and requirements, which
constrain courts' discretion to consider ameliorative measures. First,
the Convention explicitly recognizes that any consideration of ameliora-
tive measures must prioritize the child's physical and psychological

668 GOLAN
v. SAADA
Syllabus
safety. Second, consideration of ameliorative measures should abide by
the
Convention's requirement that courts addressing return petitions do
not usurp the role of the court that will adjudicate the underlying cus-
tody dispute. Third, any consideration of ameliorative measures must
accord with the Convention's requirement that courts “act expeditiously
in proceedings for the return of children.” A court therefore reason-
ably may decline to consider ameliorative measures that have not been
raised by the parties, are unworkable, draw the court into determina-
tions properly resolved in custodial proceedings, or risk overly prolong-
ing return proceedings. Pp. 679–682.
(c) In this case, the District Court made a fnding of grave risk, but
never had the opportunity to inquire whether to order or deny return
under the correct legal standard. Accordingly, it is appropriate to allow
the District Court to apply the proper legal standard in the frst in-
stance, see Monasky v. Taglieri, 589 U. S. –––, –––. The District Court
should determine whether the measures considered are adequate to
order return in light of the District Court's factual fndings concerning
the risk to B. A. S., bearing in mind that the Convention sets as a pri-
mary goal the safety of the child. Pp. 682–684.
833 Fed. Appx. 829, vacated and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court.
Karen R. King argued the cause for petitioner. With her
on the briefs were Kevin Grossinger, Andrew A. Zashin,
Christopher R. Reynolds, Amy M. Keating, Kannon K.
Shanmugam, and Daniel H. Levi.
Frederick Liu argued the cause for the United States as
amicus curiae urging vacatur. With him on the brief were
So l i c i t o r Gene ra l Prel ogar, De pu ty So l i ci t o r Gene ral
Kneedler, Melissa N. Patterson, and Sharon Swingle.
Richard Min argued the cause for respondent. With him
on the brief were Michael Banuchis, Melissa A. Kucinski,
Jeffrey T. Green, Kathleen Mueller, and Xiao Wang.*
*Briefs of amici curiae urging reversal were fled for Child Justice, Inc.,
et al. by Mark E. McDonald; for Domestic Violence Survivors by Timothy
S. Durst, Kristin Cope, and Kendall Turner; for the Frederick K. Cox
International Law Center by David A Carney, Michael P. Scharf, Stephen
J. Petras, Jr., and Andrew S. Pollis; for Hague Convention Delegates Jami-
son Selby Borek et al. by Amir C. Tayrani and Kellam Conover; for Indi-
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669
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
U
nder the Hague Convention on the Civil Aspects of In-
ternational Child Abduction, Mar. 26, 1986, T. I. A. S.
No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.), if a court
fnds that a child was wrongfully removed from the child's
country of habitual residence, the court ordinarily must
order the child's return. There are, however, exceptions to
that rule. As relevant here, a court is not bound to order a
child's return if it fnds that return would put the child at
a grave risk of physical or psychological harm. In such a
circumstance, a court has discretion to determine whether to
deny return.
In exercisi ng th is discreti on, cour ts of ten consider
whether any “ameliorative measures,” undertaken either
“by the parents” or “by the authorities of the state having
jurisdiction over the question of custody,” could “reduce
whatever risk might otherwise be associated with a child's
repatriation.” Blondin v. Dubois, 189 F. 3d 240, 248 (CA2
1999) (Blondin I). The Second Circuit has made such con-
sideration a requirement, mandating that district courts in-
dependently “examine the full range of options that might
make possible the safe return of a child” before denying re-
turn due to grave risk, even if the party petitioning for the
child's return has not identifed or argued for imposition of
ameliorative measures. Blondin v. Dubois, 238 F. 3d 153,
163, n. 11 (CA2 2001) (Blondin II).
viduals and Organizations Advocating for Victims of Domestic Violence by
Shailee Diwanji Sharma and Carolyn F. Corwin; and for the National
Association of Social Workers et al. by Rachel G. Skaistis.
Michael E. Burke IV fled a brief for Professors of Law Linda J. Silber-
man et al. as amici curiae urging affrmance.
Brief of amici curiae were fled for the American Academy of Matrimo-
nial Lawyers by Brian C. Vertz; for the Child Abduction Lawyers Associa-
tion by Leah M. Ramirez; for Former Judges by Shira A. Scheindlin, pro
se; for the International Academy of Family Lawyers by Edwin A. Freed-
man and Dana Prescott; and for Italian Organizations Advocating for Vic-
tims of Domestic Violence by Valentina Shaknes and Justine A. Stringer.

670 GOLAN
v. SAADA
Opinion of the Court
The Second Circuit's categorical requirement to consider
a
ll ameliorative measures is inconsistent with the text and
other express requirements of the Hague Convention.
I
A
The Hague Convention “was adopted in 1980 in response
to the problem of international child abductions during do-
mestic disputes.” Abbott v. Abbott, 560 U. S. 1, 8 (2010).
One hundred and one countries, including the United States
and Italy, are signatories. Hague Conference on Private
Int'l Law, Convention of 25 Oct. 1980 on the Civil Aspects of
Int'l Child Abduction, Status Table, https://www.hcch.net/en/
instruments/conventions/status-table/?cid=24.
The Convention's “core premise” is that “ `the interests of
children . . . in matters relating to their custody' are best
served when custody decisions are made in the child's coun-
try of `habitual residence.' ” Monasky v. Taglieri, 589 U. S.
–––, ––– (2020) (quoting Convention Preamble, Treaty Doc.,
at 7). Accordingly, the Convention generally requires the
“prompt return” of a child to the child's country of habitual
residence when the child has been wrongfully removed to or
retained in another country. Art. 1(a), Treaty Doc., at 7; see
also Art. 12, id., at 9.
1
This requirement “ensure[s] that
rights of custody and of access under the law of one Con-
tracting State are effectively respected in the other Con-
tracting States.” Art. 1(b), id., at 7.
Return of the child is, however, a general rule, and there
are exceptions. As relevant here, the Convention provides
that return is not required if “[t]here is a grave risk that . . .
return would expose the child to physical or psychological
1
The Convention defnes a “wrongful” removal or retention as one that
breaches existing custody rights “under the law of the State in which the
child was habitually resident immediately before the removal or retention”
if those rights “were actually exercised” or “would have been so exercised
but for the removal or retention.” Art. 3, Treaty Doc., at 7.
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harm or otherwise place the child in an intolerable situa-
ti
on.” Art. 13(b), id., at 10.
2
Because return is merely “a
`provisional' remedy that fxes the forum for custody pro-
ceedings,” Monasky, 589 U. S., at –––, the Convention re-
quires that the determination as to whether to order return
should be made “us[ing] the most expeditious procedures
available,” Art. 2, Treaty Doc., at 7; see also Art. 11, id., at
9 (providing that the party petitioning for return has “the
right to request a statement of the reasons for the delay” if
the court “has not reached a decision within six weeks from
the date of commencement of the proceedings”).
Congress implemented the Convention in the Interna-
tional Child Abduction Remedies Act (ICARA), 102 Stat.
437, as amended, 22 U. S. C. § 9001 et seq. ICARA permits
a parent (or other individual or institution) seeking relief
under the Convention to fle a petition for return of a child
in state or federal court, §§ 9003(a)–(b), and directs courts to
“decide the[se] case[s] in accordance with the Convention,”
§ 9003(d). Consistent with the Convention, ICARA “em-
power[s] courts in the United States to determine only rights
under the Convention and not the merits of any underlying
child custody claims.” § 9001(b)(4); see Art. 19, Treaty Doc.,
at 11 (“A decision under this Convention concerning the re-
turn of the child shall not be taken to be a determination on
the merits of any custody issue”).
Under ICARA, the party petitioning for the child's return
bears the burden of establishing by a preponderance of the
evidence that the child was wrongfully removed or retained.
2
The Convention also enumerates several other exceptions to the return
requirement. Return is not required if the parent, institution, or body
having care of the child seeking return was not exercising custody rights
at the time of removal or had consented to removal, if the child objects to
return and “has attained an age and degree of maturity at which it is
appropriate to take account of its views,” or if return would confict with
fundamental principles of freedom and human rights in the country from
which return is requested. Arts. 13, 20, Treaty Doc., at 10, 11.
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§ 9003(e)(1). If the court fnds the child was wrongfully re-
moved
or retained, the respondent opposing return of the
child has the burden of establishing that an exception to the
return requirement applies. § 9003(e)(2). A respondent ar-
guing that return would expose the child to a grave risk of
harm must establish that this exception applies by “clear and
convincing evidence. ” § 9003(e)(2)(A). Absent a finding
that an exception applies, a child determined to be wrong-
fully removed or retained must be “promptly returned” to
the child's country of habitual residence. § 9001(a)(4).
B
Petitioner Narkis Golan is a citizen of the United States.
She met respondent Isacco Saada, an Italian citizen, while
attending a wedding in Milan, Italy, in 2014. Golan soon
moved to Milan, and the two wed in August 2015. Their
son, B. A. S., was born the next summer in Milan, where the
family lived for the frst two years of B. A. S.' life.
The following facts, as found by the District Court, are not
in dispute. Saada and Golan's relationship was character-
ized by violence from the beginning. The two fought on an
almost daily basis and, during their arguments, Saada would
sometimes push, slap, and grab Golan and pull her hair.
Saada also yelled and swore at Golan and frequently insulted
her and called her names, often in front of other people.
Saada once told Golan's family that he would kill her. Much
of Saada's abuse of Golan occurred in front of his son.
In July 2018, Golan few with B. A. S. to the United States
to attend her brother's wedding. Rather than return as
scheduled in August, however, Golan moved into a domestic
violence shelter with B. A. S. In September, Saada fled in
Italy a criminal complaint for kidnapping and initiated a civil
proceeding seeking sole custody of B. A. S.
Saada also fled a petition under the Convention and
ICARA in the U. S. District Court for the Eastern District
of New York, seeking an order for B. A. S.' return to Italy.
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Opinion of the Court
The District Court granted Saada's petition after a 9-day
bench
trial. As a threshold matter, the court determined
that Italy was B. A. S.' habitual residence and that Golan
had wrongfully retained B. A. S. in the United States in vio-
lation of Saada's rights of custody. The court concluded,
however, that returning B. A. S. to Italy would expose him
to a grave risk of harm. The court observed that there was
“no dispute” that Saada was “violent—physically, psychologi-
cally, emotionally, and verbally—to” Golan and that “B. A. S.
was present for much of it.” App. to Pet. for Cert. 79a.
The court described some of the incidents B. A. S. had wit-
nessed as “chilling.” Ibid. While B. A. S. was not “the tar-
get of violence,” undisputed expert testimony established
that “domestic vi olence disr upts a child's cog nitive and
social-emotional development, and affects the structure and
organization of the child's brain.” Id., at 79a–80a, and n. 37.
3
Records indicated that Italian social services, who had been
involved with the couple while they lived in Italy, had also
concluded that “ `the family situation entails a developmental
danger' for B. A. S.” Id., at 80a. The court found that
Saada had demonstrated no “capacity to change his behav-
ior,” explaining that Saada “minimized or tried to excuse his
violent conduct” during his testimony and that Saada's “own
expert said . . . that [Saada] could not control his anger or
take responsibility for his behavior.” Ibid.
The court nonetheless ordered B. A. S.' return to Italy
based on Second Circuit precedent obligating it to “ `examine
the full range of options that might make possible the safe
return of a child to the home country' ” before it could “ `deny
repatriation on the ground that a grave risk of harm exists.' ”
Id., at 81a (quoting Blondin II, 238 F. 3d, at 163, n. 11). The
3
The court noted that “[t]here were isolated incidents of possible abuse”
of B. A. S. based on Golan's testimony that Saada had inadvertently hit
and pushed B. A. S. while targeting her and Golan's brother's testimony
that Saada had spanked B. A. S. aggressively, accusations that Saada dis-
puted. App. to Pet. for Cert. 79a, n. 37; see id., at 54a–55a, 61a.

674 GOLAN
v. SAADA
Opinion of the Court
Second Circuit based this rule on its view that the Conven-
ti
on requires return “if at all possible.” Blondin I, 189
F. 3d, at 248. To comply with these precedents, the District
Court had required the parties to propose “ `ameliorative
measures' ” that could enable B. A. S.' safe return. App. to
Pet. for Cert. 81a.
4
Saada had proposed that he would pro-
vide Golan with $30,000 for expenses pending a decision in
Italian courts as to fnancial support, stay away from Golan
until the custody dispute was resolved, pursue dismissal of
the criminal charges he had fled against Golan, begin cogni-
tive behavioral therapy, and waive any right to legal fees or
expenses under the Convention. The court concluded that
these measures, combined with the fact that Saada and Golan
would be living separately, would “reduce the occasions for
violence,” thereby ameliorating the grave risk to B. A. S.
suffciently to require his return. Id., at 81a–82a.
On Golan's appeal of this return order, the Second Circuit
vacated the order, fnding the District Court's measures in-
suffcient to mitigate the risk of harm to B. A. S. Emphasiz-
ing that the District Court's factual fndings provided “ample
reason to doubt that Mr. Saada will comply with these condi-
tions,” the Second Circuit concluded that “the District Court
erred in granting the petition subject to (largely) unenforce-
able undertakings” without “suffcient guarantees of per-
formance.” 930 F. 3d 533, 540, 542–543 (2019). Because the
record did “not support the conclusion that there exist no
protective measures suffcient to ameliorate the grave risk
of harm B. A. S. faces if repatriated,” the court remanded
for the District Court to “consider whether there exist alter-
4
Courts of Appeals use the terms “undertakings” and “ameliorative
measures” interchangeably. See, e. g., Blondin I, 189 F. 3d 240, 248 (CA2
1999) (referring to “ameliorative measures”); Simcox v. Simcox, 511 F. 3d
594, 604–606 (CA6 2007) (referring to “undertakings”). Although Saada
asserts that the latter is broader than the former, he does not argue that
the difference is determinative in this case. Accordingly, we use “ame-
liorative measures,” the term employed by the Second Circuit in this case.
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Opinion of the Court
native ameliorative measures that are either enforceable by
the
District Court or supported by other suffcient guaran-
tees of performance.” Id., at 543 (emphasis added).
To comply with the Second Circuit's directive, over the
course of nine months, the District Court conducted “an ex-
tensive examination of the measures available to ensure
B. A. S.'s safe return to Italy.” App. to Pet. for Cert. 12a.
The District Court directed the parties to appear for status
conferences and to submit status reports and supplemental
briefs, and the court corresponded with the U. S. Depart-
ment of State and the Italian Ministry of Justice. At the
court's instruction, the parties petitioned the Italian courts
for a protective order, and the Italian court overseeing the
underlying custody dispute issued a protective order barring
Saada from approaching Golan for one year. In addition, the
Italian court ordered that an Italian social services agency
oversee Saada's parenting classes and therapy and that visits
between Saada and B. A. S. be supervised.
5
The District Court concluded that these measures were
suffcient to ameliorate the harm to B. A. S. and again
granted Saada's petition for B. A. S.' return. It rejected
Golan's argument that Saada could not be trusted to comply
with a court order, expressing confdence in the Italian
courts' abilities to enforce the protective order. The Dis-
trict Court additionally ordered Saada to pay Golan $150,000
to facilitate B. A. S.' return to Italy and to cover Golan's and
B. A. S.' living costs while they resettled. The Second Cir-
cuit affrmed, concluding that the District Court did not
clearly err in determining that Saada likely would comply
with the Italian protective order, given his compliance with
other court orders and the threat of enforcement by Italian
authorities of its order. 833 Fed. Appx. 829 (2020).
This Court granted certiorari to decide whether the Sec-
ond Circuit properly required the District Court, after mak-
5
Separately, the Italian criminal court dismissed the kidnapping charges
against Golan.
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676 GOLAN
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Opinion of the Court
ing a grave-risk fnding, to examine a full range of possible
a
meli orative measures before reach ing a decisi on as to
whether to deny return, and to resolve a division in the lower
courts regarding whether ameliorative measures must be
considered af ter a grave-r isk fi ndi ng.
6
595 U. S. –––
(2021).
II
A
“The interpretation of a treaty, like the interpretation of
a statute, begins with its text.” Abbott, 560 U. S., at 10 (in-
ternal quotation marks omitted). As described above, when
“a child has been wrongfully removed or retained” from his
country of habitual residence, Article 12 of the Hague Con-
vention generally requires the deciding authority (here, a
district court) to “order the return of the child.” Treaty
Doc., at 9. Under Article 13(b) of the Convention, however,
a court “is not bound to order the return of the child” if the
court fnds that the party opposing return has established
that return would expose the child to a “grave risk” of physi-
cal or psychological harm. Id., at 10. By providing that a
court “is not bound” to order return upon making a grave-
risk fnding, Article 13(b) lifts the Convention's return re-
quirement, leaving a court with the discretion to grant or
deny return.
Nothing in the Convention's text either forbids or requires
consideration of ameliorative measures in exercising this dis-
cretion. The Convention itself nowhere mentions ameliora-
tive measures. Nor does ICARA, which, as relevant, in-
structs courts to “decide the case in accordance with the
6
Compare In re Adan, 437 F. 3d 381, 395 (CA3 2006) (requiring consider-
ation of ameliorative measures); Gaudin v. Remis, 415 F. 3d 1028, 1035
(CA9 2005) (same); Blondin II, 238 F. 3d 153, 163, n. 11 (CA2 2001) (same),
with Acosta v. Acosta, 725 F. 3d 868, 877 (CA8 2013) (consideration not
required in all circumstances); Baran v. Beaty, 526 F. 3d 1340, 1346–1352
(CA11 2008) (same); Danaipour v. McLarey, 386 F. 3d 289, 303 (CA1
2004) (same).
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Opinion of the Court
Convention” and accordingly leaves undisturbed the discre-
ti
on recognized in the Convention. 22 U. S. C. § 9003(d).
The longstanding interpretation of the Department of State
offers further support for the view that the Convention vests
a court with discretion to determine whether to order re-
turn if an exception to the return mandate applies. See 51
Fed. Reg. 10510 (1986) (explaining that “a court in its dis-
cretion need not order a child returned” upon a fnding of
grave risk); see also Abbott, 560 U. S., at 15 (explaining
that the Executive Branch's interpretation of the Convention
“ is entitled to great weight” ( inter na l quotation marks
omitted)).
Unable to point to any explicit textual mandate that courts
consider ameliorative measures, Saada's primary argument
is that this requirement is implicit in the Convention's com-
mand that the court make a determination as to whether a
grave risk of harm exists. Essentially, Saada argues that
determining whether a grave risk of harm exists necessarily
requires considering whether any ameliorative measures
are available.
The question whether there is a grave risk, however, is
separate from the question whether there are ameliorative
measures that could mitigate that risk. That said, the ques-
tion whether ameliorative measures would be appropriate or
effective will often overlap considerably with the inquiry
into whether a grave risk exists. See Simcox v. Simcox, 511
F. 3d 594, 607–608 (CA6 2007) (explaining that the appropri-
ateness and utility of ameliorative measures correlate with
the gravity of the risk to the child). In many instances, a
court may fnd it appropriate to consider both questions at
once. For example, a fnding of grave risk as to a part of a
country where an epidemic rages may naturally lead a court
simultaneously to consider whether return to another part of
the country is feasible. The fact that a court may consider
ameliorative measures concurrent with the grave-risk deter-
mination, however, does not mean that the Convention im-
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678 GOLAN
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Opinion of the Court
poses a categorical requirement on a court to consider any
or
all ameliorative measures before denying return once it
fnds that a grave risk exists.
7
Under the Convention and ICARA, district courts' discre-
tion to determine whether to return a child where doing so
would pose a grave risk to the child includes the discretion
whether to consider ameliorative measures that could ensure
the child's safe return. The Second Circuit's rule, “in prac-
tice, rewrite[s] the treaty,” Lozano v. Montoya Alvarez,
572 U. S. 1, 17 (2014), by imposing an atextual, categorical
requirement that courts consider all possible ameliorative
measures in exercising this discretion, regardless of whether
such consideration is consistent with the Convention's objec-
tives (and, seemingly, regardless of whether the parties of-
fered them for the court's consideration in the frst place).
See Blondin I, 189 F. 3d, at 249 (requiring district court not
to “limit itself to the single alternative placement initially
suggested by [the appellant]” but instead affrmatively to
“develop a thorough record to facilitate its decision,” includ-
ing by “mak[ing] any appropriate or necessary inquiries” of
7
Saada argues that the approach of other signatory countries, including
the United Kingdom, supports the position that consideration of ameliora-
tive measures is required. See, e. g., In re E, [2011] UKSC 27 ¶52 (stating
that the focus of the return inquiry should be on the suffciency of protec-
tive measures where there are disputed allegations of domestic violence).
The Hague Conference on Private International Law's Guide to Good
Practice, which the Hague Conference issued to encourage consistent ap-
plication of the grave-risk exception internationally, also offers some sup-
port for this position, explaining that courts generally should consider “the
circumstances as a whole, including whether adequate measures of protec-
tion are available.” 1980 Child Abduction Convention: Guide to Good
Practice, Pt. VI, Art. 13(1)(b), p. 31, ¶41 (2020). The Convention itself,
however, leaves contracting states free to require or not require consider-
ation of ameliorative measures, and consistent with most signatory coun-
tries outside the European Union, see, e. g., Arthur & Secretary, Dept. of
Family & Community Servs. and Anor, [2017] FamCAFC 111 ¶69
(Austl.), Congress has not chosen to require such consideration.
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the government of the country of habitual residence and in-
vok
ing the aid of the Department of State).
B
While consideration of ameliorative measures is within a
district court's discretion, “[d]iscretion is not whim.” Mar-
tin v. Franklin Capital Corp., 546 U. S. 132, 139 (2005). A
“motion to a court's discretion is a motion, not to its inclina-
tion, but to its judgment; and its judgment is to be guided
by sound legal principles.” Ibid. (internal quotation marks
and alteration omitted). As a threshold matter, a district
court exercising its discretion is still responsible for address-
ing and responding to nonfrivolous arguments timely raised
by the parties before it. While a district court has no obli-
gation under the Convention to consider ameliorative meas-
ures that have not been raised by the parties, it ordinarily
should address ameliorative measures raised by the parties
or obviously suggested by the circumstances of the case, such
as in the example of the localized epidemic. See supra,
at 677–678.
In addition, the court's consideration of ameliorative meas-
ures must be guided by the legal principles and other re-
quirements set forth in the Convention and ICARA. The
Second Circuit's rule, by instructing district courts to order
return “if at all possible,” improperly elevated return above
the Convention's other objectives. Blondin I, 189 F. 3d, at
248. The Convention does not pursue return exclusively or
at all costs. Rather, the Convention “is designed to protect
the interests of children and their parents,” Lozano, 572
U. S., at 19 (Alito, J., concurring), and children's interests
may point against return in some circumstances. Courts
must remain conscious of this purpose, as well as the Con-
vention's other objectives and requirements, which constrain
courts' discretion to consider ameliorative measures in at
least three ways.
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First, any consideration of ameliorative measures must
pr
ioritize the child's physical and psychological safety. The
Convention explicitly recognizes that the child's interest in
avoiding physical or psychological harm, in addition to other
interests, “may overcome the return remedy.” Id., at 16
(majority opinion) (catalog ing interests).
8
A court may
therefore decline to consider imposing ameliorative meas-
ures where it is clear that they would not work because the
risk is so grave. Sexual abuse of a child is one example of
an intolerable situation. See 51 Fed. Reg. 10510. Other
physical or psychological abuse, serious neglect, and domes-
tic violence in the home may also constitute an obvious grave
risk to the child's safety that could not readily be amelio-
rated. A court may also decline to consider imposing amel-
iorative measures where it reasonably expects that they will
not be followed. See, e. g., Walsh v. Walsh, 221 F. 3d 204,
221 (CA1 2000) (providing example of parent with history of
violating court orders).
Second, consideration of ameliorative measures should
abide by the Convention's requirement that courts address-
ing return petitions do not usurp the role of the court that
will adjudicate the underlying custody dispute. The Con-
vention and ICARA prohibit courts from resolving any un-
8
The explanatory report for the Convention, which is “recognized by
the [Hague] Conference as the offcial history and commentary on the Con-
vention and is a source of background on the meaning of the provisions of
the Convention,” supports this understanding. 51 Fed. Reg. 10503. The
explanatory report describes that the general “interest of the child in not
being removed from its habitual residence,” the foundation for the general
return principle, “gives way before the primary interest of any person in
not being exposed to physical or psychological danger or being placed in an
intolerable situation.” 1980 Conférence de La Haye de droit international
privé, Enlèvement d'enfants, E. Pérez-Vera, Explanatory Report, in 3
Actes et documents de la Quatorzième session, p. 433, ¶29 (1982). This
Court has repeatedly referenced the report in Hague Convention cases,
without “decid[ing] whether this Report should be given greater weight
than a scholarly commentary.” Abbott v. Abbott, 560 U. S. 1, 19 (2010);
see, e. g., Monasky v. Taglieri, 589 U. S. –––, –––, n. 2 (2020).
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derlying custody dispute in adjudicating a return petition.
See
Art. 16, Treaty Doc., at 10; 22 U. S. C. § 9001(b)(4). Ac-
cordingly, a court ordering ameliorative measures in making
a return determination should limit those measures in time
and scope to conditions that would permit safe return, with-
out purporting to decide subsequent custody matters or
weighing in on permanent arrangements.
9
Third, any consideration of ameliorative measures must
accord with the Convention's requirement that courts “act
expeditiously in proceedings for the return of children.”
Art. 11, Treaty Doc., at 9.
10
Timely resolution of return pe-
titions is important in part because return is a “provisional”
remedy to enable fnal custody determinations to proceed.
Monasky, 589 U. S., at ––– (internal quotation marks omit-
ted). The Convention also prioritizes expeditious determi-
nations as being in the best interests of the child because
“[e]xpedition will help minimize the extent to which uncer-
9
The Department of State expressed this view in a 1995 letter to a
United Kingdom offcial, emphasizing that any ameliorative measures
ordered to facilitate return “should be limited in scope and further the
Convention's goal of ensuring the prompt return of the child” and that
measures that “address in great detail issues of custody, visitation, and
maintenance” would be “questionable” given the Convention's reservation
of custody issues for resolution in the country of the child's habitual resi-
dence. App. to Brief for United States as Amicus Curiae on Pet. for
Cert. 2a (Letter from C. Brown, Assistant Legal Adviser for Consular
Affairs, U. S. Dept. of State, to M. Nicholls, Lord Chancellor's Dept., Child
Abduction Unit, United Kingdom (Aug. 10, 1995)).
10
Conferring with other countries, when necessary to resolve a petition,
need not take long. The Hague Conference on Private International Law,
the intergovernmental organization that adopted the Hague Convention,
has an extensive list of cases and references to practices of virtually all
the signatory countries. Moreover, the Conference has established a net-
work of judges in signatory countries who are available to engage in direct
judicia l communicati ons about the applicati on of the Conventi on.
See Hague Conference on Private Int'l Law, The International Hague
Network of Judges, https://www.hcch.net/en/ instruments/conventions/
specialised-sections/child-abduction/ ihnj.
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tainty adds to the challenges confronting both parents and
ch
ild.” Chafn v. Chafn, 568 U. S. 165, 180 (2013). A re-
quirement to “examine the full range of options that might
make possible the safe return of a child,” Blondin II, 238
F. 3d, at 163, n. 11, is in tension with this focus on expeditious
resolution. In this case, for example, it took the District
Court nine months to comply with the Second Circuit's direc-
tive on remand. Remember, the Convention requires courts
to resolve return petitions “us[ing] the most expeditious pro-
cedures available,” Art. 2, Treaty Doc., at 7, and to provide
parties that request it with an explanation if proceedings
extend longer than six weeks, Art. 11, id., at 9. Courts
should structure return proceedings with these instructions
in mind. Consideration of ameliorative measures should not
cause undue delay in resolution of return petitions.
To summarize, although nothing in the Convention prohib-
its a district court from considering ameliorative measures,
and such consideration often may be appropriate, a district
court reasonably may decline to consider ameliorative meas-
ures that have not been raised by the parties, are unwork-
able, draw the court into determinations properly resolved
in custodial proceedings, or risk overly prolonging return
proceedings. The court may also fnd the grave risk so un-
equivocal, or the potential harm so severe, that ameliorative
measures would be inappropriate. Ultimately, a district
court must exercise its discretion to consider ameliorative
measures in a manner consistent with its general obligation
to address the parties' substantive arguments and its specifc
obligations under the Convention. A district court's compli-
ance with these requirements is subject to review under an
ordinary abuse-of-discretion standard.
III
The question now becomes how to resolve the instant case.
Golan urges that this Court reverse, arguing that the amelio-
rative measures adopted by the District Court are inade-
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quate for B. A. S.' protection and otherwise improper. The
U
nited States, as amicus curiae, suggests remanding to
allow the District Court to exercise its discretion in the frst
instance under the correct legal standard. Brief for United
States as Amicus Curiae 32.
Under the circumstances of this case, this Court concludes
that remand is appropr iate. The Conventi on requires
courts to make a discretionary determination as to whether
to order return after making a fnding of grave risk. The
District Court made a fnding of grave risk, but never had
the opportunity to engage in the discretionary inquiry as to
whether to order or deny return under the correct legal
standard. This Court cannot know whether the District
Court would have exercised its discretion to order B. A. S.'
return absent the Second Circuit's rule, which improperly
weighted the scales in favor of return. Accordingly, it is
appropriate to follow the ordinary course and allow the Dis-
trict Court to apply the proper legal standard in the frst
instance. Cf. Monasky, 589 U. S., at ––– – ––– (declining to
follow the “[o]rdinar[y]” course of ordering remand where
the determination in question was nondiscretionary and
there was no “reason to anticipate that the District Court's
judgment would change on a remand”).
Remand will as a matter of course add further delay to a
proceeding that has already spanned years longer than it
should have. The delay that has already occurred, however,
cannot be undone. This Court trusts that the District Court
will move as expeditiously as possible to reach a fnal deci-
sion without further unnecessary delay. The District Court
has ample evidence before it from the prior proceedings and
has made extensive factual fndings concerning the risks at
issue. Golan argues that the ameliorative measures ordered
intrude too greatly on custodial determinations and that they
are inadequate to protect B. A. S.' safety given the District
Court's fndings that Saada is unable to control or take re-
sponsibility for his behavior. The District Court should de-

684 GOLAN
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termine whether the measures in question are adequate to
order
return in light of its factual fndings concerning the
risk to B. A. S., bearing in mind that the Convention sets as
a primary goal the safety of the child.
***
The judgment of the United States Court of Appeals for
the Second Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None