SCOTUS NEWS

Justices agree to take up new cases on arbitration issues and international child custody

The Supreme Court on Friday added three new cases to its docket for the 2021-22 term. After the court’s rulings in a pair of cases challenging a Texas law that bans almost all abortions after the sixth week of pregnancy on Friday morning, the new grants on Friday afternoon had a decidedly lower profile. The justices agreed to take up issues ranging from international child custody to discovery in private arbitration and the scope of the Federal Arbitration Act.

In Golan v. Saada, the court will once again weigh in on the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction, an international agreement adopted in 1980 to deal with international child abductions during domestic disputes. Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The rationale behind this mandate is that a parent should not be able to gain an advantage in a custody dispute by abducting the child and taking her to a different country.

The convention carves out an exception to the general return requirement for cases in which there is a “grave risk” that returning the child would expose her to physical or psychological harm. In Golan, the justices agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.

The question comes to the court, as Hague Convention cases often do, in a case involving parents from two different countries. Narkis Golan, a U.S. citizen, married Isacco Saada, an Italian citizen, in 2015; the couple’s child, known only as B.A.S. in court proceedings, was born in Milan in 2016. Saada was abusive toward Golan throughout the marriage, often in front of B.A.S., but he did not directly abuse their son. In 2018, Golan took B.A.S to the United States and did not return, remaining in a domestic-violence shelter in New York. Saada went to federal court there, trying to compel B.A.S.’s return to Italy under the convention.

The U.S. Court of Appeals for the 2nd Circuit ruled that, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. The case then went back to the district court, which ordered B.A.S.’s return to Italy with a variety of measures in place to protect him – for example, Saada’s payment of Golan’s expenses for a year, a protective order against Saada, and therapy and parenting classes for Saada.

Golan went to the Supreme Court, asking the justices to take up her case. She argued that the 2nd Circuit’s rule requiring courts to consider measures to reduce the risk of grave harm clashed with the holdings of other courts of appeals, which do not require such measures – particularly in cases involving domestic violence.

In April 2021, the justices asked the federal government for its views, and in October the United States agreed that the Supreme Court should weigh in. The Hague Convention, the government explained, “allows, but does not require, a court to consider measures that could ameliorate a grave risk of harm when determining whether to refrain from ordering the return of a child” under the exception to the general return requirement.

The justices consolidated two cases, ZF Automotive US v. Luxshare, Ltd., and Alixpartners v. Fund for Protection of Investor Rights in Foreign States, and scheduled them to be argued together. They involve a federal law that gives district courts the discretion to order someone in that district to give testimony or produce documents “for use in a foreign or international tribunal.” Earlier this year the justices granted review in Servotronics v. Rolls-Royce to decide whether that discretion extends to discovery for use in a private arbitration. It was removed from the court’s docket after the parties settled the case; now the justices will consider that question again.

The justices also granted a petition filed by Southwest Airlines in a case involving the Federal Arbitration Act. The court agreed to decide whether an airline employee who works as a ramp agent supervisor is a “transportation worker” and therefore not required to arbitrate her wage dispute with the airline.

The justices will issue more orders from Friday’s conference on Monday, Dec. 13, at 9:30 a.m.

This article was originally published at Howe on the Court.