The Impossible Escape: The Story of Narkis Golan, The Hague Convention; and the ongoing battle to protect her young son Bradley
A Guest Contribution By Grant Wyeth
“We’re enslaved to this patriarchal society that controls our innocent lives without any justice at all. Without any good reason at all.” — Narkis Golan
The Hague Convention on the Civil Aspects of International Child Abduction was developed four decades ago with an extraordinary misunderstanding of how it would be applied. The problem that it sought to address was the potential abduction of a child by a non-custodial parent — usually the father — to another country, with the convention providing the legal framework for states to cooperate to return the child to their mother. Yet in the overwhelming majority of cases this is not the way the convention is used. Instead, the convention has become a tool used by abusive men to prevent women and children from fleeing to safety. The Hague Convention has become an international law that now actively works against its initial intent to protect child well-being.
In 2018, under the guise of attending her brother’s wedding, Narkis Golan and her son Bradley fled Italy to her home country of the United States. In Italy, Golan had suffered ongoing physical, verbal and emotional abuse at the hands of her husband Isacco Saada. Her maternal instincts to protect herself and her child saw an opportunity and it became essential to take it. After realising that Golan and Bradley weren’t returning, Saada filed a petition in the Eastern District of New York under the Hague Convention to have Bradley returned to Italy. Since then there has been a protracted series of legal contests that have provided some important challenges to the way the Hague Convention is implemented, but also continue to threaten Bradley’s right to a safe and healthy upbringing.
Both the way family courts operate and the way Hague Convention is implemented can be boiled down to one central question — are women and children allowed to leave abusive domestic environments? It seems an extraordinary question to ask, but culturally and legally the answer is often no. Once a woman becomes pregnant her freedom is limited, not by her child, but by a legal culture that remains bound to ideas and norms about human organisation — and the hierarchical relationship between men, women and children — that privilege the interests of men over any other ethical and moral concerns. Seeking to escape abusive men is either incredibly difficult and expensive, or, astonishingly, a punishable offence.
In our current era this shouldn’t be the case. Both present-day laws and our stated social morals suggest that domestic violence is completely unacceptable, and most people when asked would agree that children deserve the highest standards of protection. Yet translating these laws and morals into practical outcomes remains a challenge. We may claim to detest violence, but when it comes to women and children being able to free themselves from it we struggle to allow them to do so. Instead there are deeply embedded unconscious attitudes that often dictate our legal outcomes.
Throughout the West, the notion of women as individuals is relatively new. Into the late-19th Century and early-20th Century the dominant framework that governed women was variants of the idea of “coverture.” No female person had a legal identity of their own. From birth she was the property of her father, and then once she was married she became the property of her husband. A married woman did not own anything, and she had no legal rights to her own children. If she left her husband, she would be abandoning her children. On top of this, women had no rights to their own bodies — in relation to sex or violence, or the combination of the two. Only at murder did the state consider there to be a problem.
It is worth contemplating what it means to not legally exist. The inability to advocate for yourself or conduct your own personal affairs, the inability to remove yourself from violence (let alone seek justice), and the inability to protect your children from known dangers. For mothers, this inability to protect their children is especially agonising. There is both an individual and social dissonance created when every cell in a mother’s body tells her that protecting her children is an existential imperative, but the law tells her that she is not allowed to do so. Man-made — or men-made — laws that seek to undermine the instinctive responsibility of mothers play a dangerous game with our collective humanity.
While laws themselves can change — and women now have legal personhood — culture is persistent, and we have collectively been slow to institutionalise women’s equal humanity in the legal structures that should flow from this recognition. In the United States, women weren’t regularly allowed to serve on juries until the 1960s, and it wasn’t until the 1980s when marital rape became a crime. New laws don’t automatically rectify past problems, they simply plant seeds that often take considerable time to mature (or may not mature at all). The vestiges of previously legal practices remain embedded within legal systems.
Social changes that advance the freedom of women and children — like no-fault divorce from the 1970s — face strong social backlashes that are also highly influential. The capture of family courts worldwide by the concept of “parental alienation” can be understood as a successful male supremacist campaign to limit the freedoms that no-fault divorce granted — a vicious response to women’s personhood, as well as the idea that children are individuals worthy of their own considerations, not simply property of their fathers. We should recognise that progress is unfortunately not linear, and that basic notions of humanity are perpetually being challenged.
It is into this environment that the Hague Convention emerged in the 1980s. A convention that sought to recognise the rights of children to not be transported to other countries against their interests, but failed to account for the cultural terrain it would have to negotiate. Not understanding this cultural terrain meant also failing to envisage how the convention could be bastardised into its current state, where around three quarters of cases are women and children fleeing domestic abuse. Ironically, the convention now enforces the idea that children remain property of their fathers.
The Golan vs Saada case has focused on one critical concept that illustrates just how courts in the United States have tried to negotiate modern moral standards while still struggling to overcome these long-standing cultural vestiges. Within this struggle the courts have been trying to do two incompatible things simultaneously — protect the rights of a child to live free from abuse, and maintain the social structure that privileges men’s interests.
After the initial two-week trial held in the Eastern District of New York, the court found that to return Bradley to Italy would place him at grave risk of harm. There was no dispute of Saada’s physical, psychological, emotional and verbal abuse. Yet, despite fully acknowledging this danger, the court ordered Golan and Saada to present “ameliorative measures” that would facilitate Bradley’s return to Italy. Saada promised to stay away from Golan and to attend therapy for his aggression problems. Extraordinarily, Judge Ann M. Donnelly deemed this sufficient and ordered that Bradley be returned to Italy.
Upon appeal to the Second Circuit court, it was found that the district court was unable to secure a guarantee that Saada would keep his stated promises. With the case returning to the district court, new measures were required — that Golan obtains a protective order against Saada for herself from the Italian authorities, and that Saada pay $150,000 to Golan for legal and living expenses.
Despite acknowledging that Saada’s violence towards Golan constituted a grave risk to the child, Donnelly concluded that a protective order issued by Italian courts “ameliorates the grave risk of harm to [the child].” Donnelly made note that Saada had not been violent towards Bradley, and had not neglected him. She deemed the only problem to be one of the relationship between Saada and Golan.
Yet this fundamentally misunderstands the nature of domestic violence and the harm it does to children, even if children are not hit themselves. Being inside a household where violence is present has a profound effect on a child’s well-being. There is a serious psychological imprint that the exposure to violence leaves. Fear and insecurity can be embedded at an early age and remain major impediments to how children develop, and restrict how they are able to flourish through all stages of their lives.
On top of this, there is an instinctive connection that children have with their mothers, a dependence on them in their early years, which makes any violence or abuse committed against a mother a direct threat to the most basic and essential needs of a child. In a broader social sense, domestic violence also exposes children to warped ideas of power relations, polluting their understanding of what relationships should be. To believe that domestic violence is just isolated incidents between partners is a failure of duty by judges to understand what actually constitutes child welfare.
The proposed solution of simply separating Saada from Golan as a way to secure Bradley’s safety was not a solution with his best interests in mind. It not only played into the notion that women are the cause of men’s violence, but it overlooked that children exposed to violence carry this abuse with them — how traumatic it can be to continue to see the man who has created the chaos and insecurity in their lives. The “grave risk” to Bradley’s life was not the relationship between Saada and Golan, the risk is Saada himself.
Recognising the Bradley would be adversely affected by being forced to return to Italy, Golan filed a petition for a writ of certiorari that asked the US Supreme Court to clarify whether establishing ameliorative measures should be necessary after an indisputable finding of grave risk of harm. In accepting the case the Supreme Court recognised that the Hague Convention has become a convention fraught with problems and that courts in the U.S required some further guidance on how to interpret it.
The Supreme Court noted that the Hague Convention doesn’t stipulate that there be a consideration of ameliorative measures when a court is determining how to proceed after establishing that there is grave risk to a child. This is a consideration that courts in the U.S have adopted in light of the recognition that most Hague Convention cases are now women and children fleeing domestic violence and without challenging the basis of the convention entirely, certain safeguards needed consideration given current social expectations around child abuse.
Yet the development of ameliorative measures as a concept within Hague Convention cases highlights the stark tension between these current social expectations about child protection, the vestiges of previous eras that remain embedded within the legal culture, and the interpretation of the Hague Convention as a jurisdictional law, rather than a law concerning child welfare. The idea of seeking “ameliorative measures” is the attempt to find a balance between these three incompatible notions.
The Supreme Court ruled that a court is not required to examine all possible ameliorative 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. This should have been a victory from Golan, and especially for Bradley, a recognition that defendants in Hague Convention cases shouldn’t have to endeavour to find an exhaustive list of ways to mitigate the risk of violence once a grave risk has been established.
Yet this decision didn’t conclude that the concept of ameliorative measures was unnecessary. And as the case was remanded back to the district court in New York, this is unfortunately the interpretation that Judge Donnelly has taken, stating:
“… that under the circumstances of this case, it is appropriate to consider, as a matter of discretion, whether the existence of ameliorative measures — in this case, the measures already implemented by the Italian courts — make it possible for [the child] to return safely to Italy. Because I conclude that these measures are sufficient to ameliorate the risk to [the child] that I identified in 2019 — specifically, being exposed to domestic violence between petitioner and respondent — I conclude that the petition should be granted and order that [the child] must be returned to Italy.”
Putting aside the recognition that any ameliorative measures demanded by a U.S court would be unable to be enforced in Italy, it is worth contemplating the concept of “ameliorative measures” and what it is attempting to facilitate, beyond the legal problems it seeks to juggle. The guiding assumption of “ameliorative measures” is one familiar to those involved in domestic custody proceedings — that lack of normalised contact with a father is more damaging to a child than any violence the father has committed. So if the court can find ways to minimise the risk of exposure to violence then this should be sufficient to return a child to the country of origin and into the orbit of their father.
Once this guiding assumption is internalised by the court it becomes almost impossible to protect the safety of children. Yet this assumption is used as a linguistic smokescreen to pretend the court’s concern is about child welfare, while it instead advances the interests of paternal authority. The assumption also privileges the biological aspects of fatherhood over the practical aspects. Through this lens, legally, fatherhood has nothing to do with love, kindness, support, stability, nurturing and encouragement. It is merely a values-neutral concept based solely on DNA. The act of impregnation is what the court considers important, not the effort made to positively raise a child.
It is close to five years now that Bradley has been safe from his father’s malign influence. This has been due to the extraordinary and tenacious efforts of his mother to prioritise his safety and well-being above all else. Something that justice systems should acknowledge and respect, but far too often refuse to. Yet unfortunately, in October last year Narkis Golan was found dead in their New York apartment. The cause of her death remains unclear, but the fear is that Judge Donnelly will see her death as the ultimate “ameliorative measure” and conclude that the path is now clear to transport Bradley to Italy.
After her death, Narkis’s sister Morin quickly applied for temporary custody of Bradley and took up the legal case to protect him. Given that Bradley is autistic/neurodivergent, Morin is now the primary caregiver who understands his need for a consistent routine, can negotiate his communication difficulties, and has been facilitating his therapy sessions. This is a great responsibility that Morin has taken and one that should be respected.
After five years in the United States by any sane standard New York is now Bradley’s “habitual residence.” To remove a child who has highly specific needs from one of the few people who understands these needs, to send him to live in foster care — given that Saada is still acknowledged to be a grave risk — in what is now a very foreign country would be an extreme act of cruelty. It would be a decision made out of spite — to spite both Narkis and Morin Golan for their determined efforts to challenge the Hague Convention by protecting Bradley, and a decision to treat Bradley as merely an expendable item to uphold a deeply flawed convention and for the U.S to prevent a diplomatic ripple with Italy.
It is worth noting that Saada’s persistence in pursuing the case, knowing full well of the trauma this arrangement will inflict on Bradley, should be seen as more evidence of his lack of regard for Bradley’s welfare. This is a facet of custody proceedings that courts continue to overlook — a refusal to distinguish between a duty of care and a lust for control.
Despite its initial intent to safeguard the best interests of children, the Hague Convention has now become a jurisdictional law that pays little attention to child welfare. In doing so the convention provides an international framework to facilitate the embedded legal culture that men have entitlements that are divorced from their actions, and women and children simply do not have the right to leave abusive domestic environments.
“Narkis leaves behind a legal legacy as well as a model of mentorship and activism. She served as a beacon of light for other members of the Hague Mothers, and we will demand systemic change in her memory, just as she demanded and achieved change in the U.S. Supreme Court. We urge everyone to continue to share her story and ensure that her precious son remains with his safe, loving family in the United States.” — Tina Swithin, One Mom’s Battle
