severe domestic violence in this appeal mr saga asks this court to do what no appellate court has ever done affirm the holding of a district court that a child at grave risk of harm should nevertheless be returned a person into a suite of promises by an abuser what the district court did here was error for two reasons st u s courts have no just jurisdiction to enforce promises once the child is overseas post return promises like mr saddam is here to stay away from ischl on if she returns to italy are not protective as a matter of law you tell us which if any of the promises that were forward looking have been complete it with respect charges in italy with respect to things like that i understand there are still ones that you are saying cannot be enforced but is the state of play it different from what it was when you filed your honor the state of play not different from what it was when we filed our appellate briefs and in our view in addition to the stay away condition which is unenforceable at least four other undertakings are insufficient whatever  initiatives mr assad has taken with respect to those initiatives for one mr assad a promise is to drop the criminal prosecution or endeavor to drop corrupt criminal prosecution he can't and therefore a return to the status quo ante is not possible  nd he promises to go to therapy the therapy condition on the st one yes i understand was he was going to let the prosecutors know that he was not interested in pursuing the charges then i understand it would be their decision whether to drop them have they been dropped we receive no notice that they've been dropped the nd condition would also be insufficient he's promised to go to therapy but the therapy condition is a rd of what his own expert said would be necessary here he might not go and even if he does go it's not going to work in the short term that was the undisputed record thirty promises to help her get legal status but that too is on enforceable and th his promise to pay thirty thousand dollars there's not a shred of evidence or any testimony in the record showing that would be sufficient root nor were we given an opportunity to show that it would not be we don't see in this situation how there could be conditions that could render return safe here i thought you greater concern though was that he promises that he won't attempt to see the children without her approval and that that he's out in force once he gets to italy if i'm wrong and understanding that that's the primary concern i do believe that a cor promise is his promise to stay away and that is on an forcible the problem is that it's promised to us court is there any way the space these matters can be put into place before your client returns  can the parents go before an italian court and get some kind of limitations on his visitation well that's precisely the issue the question i'm a hague convention case is what happens in the period until an italian court can put measures into place we're dealing with that immediate period here there may well be a custody proceeding at some time down the line in months or the testimony here was that maybe it would take a year year and a half at some point a court is going to set up a system that will govern the safety of this child in this family but the question here is what happens in the pendency in the in the period pending that determination moreover i think even if there is if the district court here tried to ask the italian court to put into place protective measures that itself would be a breach of comedy is not permissible here the nd problem is that the state department and five circuits have emphasized that in cases involving grave risk from domestic violence it's more appropriate to deny return than to order return subject to extensive undertakings however well meaning they are federal courts who are sitting in jurisdiction have exceptionally limited authority they're neither quick nor empowered to outline programs of support for families in distress and when the district court attempted to do here it cross line let me ask you what is the relief that you are seeking from us if you were right in that the credo language of an order what what would that look like your honor we think the appropriate course would be to reverse the decision in order that the petition be denied outright as opposed to for example vacated of the order and remained for further proceedings concerning some of the  ameliorative measures that dr g is verted to which would mitigate the risk of harm in our view the reason that remand would not be necessary is that the judge has already made a finding that there is grave risk of harm and that notwithstanding the protections that italy can offer it is necessary to secure certain promises from mr sata because those promises are on enforceable there is no protective measure that can ensure safe return here and so in your view we should reverse our right which would end the proceedings altogether regardless of any of the proposals on the news in our view yes the state department and five circuits have said that the use of undertakings meaning here post return promises by an abuser is unwise and domestic violence cases and the district court relied upon those promises here because the district court found that those promises were necessary to ensure the child safety you know if i understand your position in response to my question if you believe that that reverse mr sided can be right don't worry we operate in the manner of the english courts people and free to walk around whoever they wish to talk to two points i think one it's not permissible for the district court to order that a mere order be put in place by the nation of italy that's a comedy infringement nd if if what we're doing here is relying upon mr assad has promised to change that's clear air you c on grounds of clear error and a finding that he can be trusted it would be an error to rely on undertakings that presume a capacity to change where there is both where that's contradicted by both external evidence and intrinsic evidence the judge has made a finding here that he hasn't demonstrated a capacity to change the expert testimony was that he can't control his own his behavior the undertakings here presume a capacity to change there's no evidence for that capacity the fact that his ability to change has to do with violence against what the district court conditions that limited his contact with his children and his wife to whatever would be necessary to avoid there being witnesses exposed to the kind of violence that occurred  the expert testimony was that the possibility is quote definitely there that he might hit the child on that record i don't see why a court we're going to take the risk here you're in some of our entry she has not returned even even to a rd party in our view where there's a capable parents and where a child is non verbal and already traumatized it would be unconscionable and absolutely not in keeping with the purposes of the hague convention to return the child to foster care which would be the situation here there was no fact finding on that question thanks very much to you researching time yes please use the men you your honor may please the court the district court found after nine day trial with seventeen witnesses seven expert witnesses that number one the child's a betrayal residence was italy and that there are sufficient measures once they're in it if he doesn't abide by that it's going to force number one i think that the reality of the circumstances and the court did talk about the fact that by giving her a specific i think that the that particular measure is almost self in forcing because her ability as we discussed in the district court record is a she can go anywhere in italy where ever she wants and she has no duty do to disclose her address or location to the father in till such time as the courts find it appropriate so her the issue of the money that she's receiving allows her the freedom to go to italy she can go to my launch and go to a sicily should go anywhere in italy of secure housing not provide that information to the father and be able to keep her address confidential and i think that that ability allows and gives her some protection to know that the father can't just come and see eve course has made the promises and the district court has not found that they don't believe that the father will comply with those conditions which is distinguishable from prior cases such as davies with the court explicitly found that the petitioner would not comply with the undertakings that they proposed in those cases in this case that this record made no finding in fact the district court made a note that the father did comply during the social services investigation in italy  court to enter an order on the conditions that would be in effect upon the mothers setting foot on italian soil unfortunately at this time i'm not able to answer whether or not he would be able to but  w critical why has your client not in a position to come to the court and say she doesn't think it's in force get an italian order to the extent that the court remands his case for those and promises to stay away included the pre prepared ment of certain funds so that she could secure housing and also the condition that she could secure housing anywhere in italy without disclosing her address to the father we believe that that would be  sufficient protection for the mother to feel safe to go back and feel like the father could not know her address and her location i will state that the parties did in april appear both represented by counsel in a time custody proceedings and we noted in a footnote in our brief that those proceedings have been adjourned till september awaiting a final decision in this case so the parties are represented in italy there in front of the proceedings the mother as far as i know has asked for an order of custody there has asked for the ability to relocate so these are issues are all the there the mother herself can ask for an order protection the other thing that has been accomplished that the court ordered as undertakings is we sent the entire trial record to the timing courts they were filed by the italian attorneys in those proceedings so the time courts are fully aware of all the statements and all the fact finding that this court made the district court made in this case so they're ready and they're willing and they're capable of proceeding as they see fit when they go back in september and in the meantime again the mother represented by counsel can make any necessary applications that she wants to make i will note your honor asked earlier about the criminal charges it's my understanding that the letter was sent to the prosecutor's office the request was made to drop the charges and the prosecutor has issued a request to have those charges dropped that is the next step ultimately at that point a decision has to be made to drop those charges by the prosecutor and prosecutor has put filed that request and that's something we can explore if this case were if that requirement were to be made a prerequisite to a return that's something we could explore in the district court and that's something that occurred of course after briefing  if your if the court affirms this matter then the case would go back to district court for the logistics of the return setting a firm date of when the child should be returned by it would be our hope that the return would be somewhat before the september custody case so that it would give the parties a good opportunity to get there and make any applications they deem necessary so the tying courts can make any rulings they feel are in the best interests of the child and that's really the ultimate purpose here of the hague convention is to allow the courts of the country of a between residents to determine those issues to protect the child the district court here did credit the testimony of petitioners pelleas expert witnesses as to the italian legal system go let's get to the point where he is on the plane how does that work you assuming you have no trouble with any of these questions so describe the scenario that we could encounter there is discretion for the district court in terms of the logistics of the return to one option could be the court says the trial must be returned by so and so date that information can be kept confidential between the attorneys so that we're confident the child has been returned but also kept confidential to the father so that the father does not know when the child will be returned and does not know when where to which airport and that the mother can you know on and then again assuming that this is somewhat before the september custody appearance and not being in a time more but i would presume she would make an appearance in before the italian judges on the issue of custody and her application for relocation and at that point the italian courts would take over and they would either keep her address confidential as they can in new york state court proceedings or whatever ruling they make they may issue orders of protection they may issue supervised  may allow her to relocate to the united states these are all things that certainly i can answer in terms of what they may do but those are all possibilities that are available to the telling courts i will note in response to something appellants counsel raised this court the district court has wide discretion or has discretion to order return of a trial even in light of finding affirmative defenses the treaty itself states that even  an affirmative defense is sustained that the court may decline to order the return of the child not shall decline to order the return of the child the nd circuit is clear and it started with blondin that the court has to examine all possible avenues to return the child in light of the grave risk findings in the st appeal the nd circuit this court remanded the case to explore what your honor talked about before putting the child in the placement of a rd party perhaps  versus retore again in this court in footnote number ten the court said that normally after grave risk finding the next question would be are there any millard of measures that could be taken to allow the child to be returned in that case to  italy the court in that case declined to do so because of the risk the specific risk to that child in that case the child had special needs i believe in that case so those are all distinguishable from this case but also highlight the fact that this court followed the guidelines of the nd circuit expect sam and all the possible undertakings out were appropriate and this court specifically gave priority and made it very clear that by giving the child sufficient funding for housing and expenses and agreeing to stay away that this would reduce the risk of the child and again the risk to the child was witnessing the violence between the parties it wasn't about violence towards the child in fact there was substantial uncontroverted evidence that the father and the son in this case had a very loving close relationship nobody disputed that and we would simply ask that the court uphold the district court decision and order the without her trying to invoke the protections of italy it's not as though when she steps off the plane there's a protective apparatus that immediately yes your honor it that it turns ask the italian court to require certain conditions be put in place before your client returns to the country at that stage there was no indication that risk on would be returning well you have a court order that distracts her to return under certain conditions and so your concern as i understand it is that those conditions are not in forcible in italy and so i'm asking you whether she asked the italian court to self order those conditions just so that she would have the protection of a runner i believe the timing is off the trial that proceeding is very complicated and that proceeding mr sada contends that her allegations of domestic violence are slanderous which goes to the point about the thirty thousand dollars is going to be very expensive for her to get all those english like language records translated she needs to take serious efforts to make sure that this child is protected this child has special needs he is in essence a nonverbal three year old it is not practical to think that she can somehow secret away into a into a cave somewhere in italy and mr assad is not going to find her she doesn't speak italian she's only ever lived in milan she has no legal residency there and no work papers it this is simply not practical and the lesson from this case right now is that in the eastern district of new york you can defeat a finding of clear and convincing evidence of grave risk with a promise to pay a healthy sum of money and stay away that that should not be the law and that's a devastating precedent for victims of domestic violence thank you very much believe i will need to clarify this but i believe the only question we were not present at the italian hearing i believe the only question was an adjournment at that point we were on expedited appeal to this circuit and in our view it it's in our i suppose an honored your honor that they answer is that in our view of the question wasn't right that this woman should not be returned to italy and so it wasn't right and let me give you an opportunity by five pm on thursday june th to submit a letter commenting on anything you think appropriate