Equitable Tolling, Concealment and the One-Year, Well-Settled Provision in Article 12 of the Hague Child Abduction Convention

by Jeremy D. Morley

The Southern District of Texas has clarified the issue of whether a parent’s concealment of a child should affect the judicial application of the one-year provision in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction. Driessche v. Ohio-Esezeoboh, 2006 Lexis 92943 (S.D.Tex. Dec. 2006).

The United States has developed a uniquely American approach to this issue. Indeed, it is an approach that an English appellate court has criticized as being far too crude. Cannon v Cannon [2004] EWCA CIV 1330.

Article 12 of the Hague Convention mandates the return of children who have been wrongfully taken or retained away from their habitual residence without the consent of a person with rights of custody, if less than one year has elapsed from the wrongful taking or retention to the commencement date of the return proceedings. If the proceedings are commenced after the expiration of the one-year period, the children must be returned unless they are now settled in their new environment.

The one-year period is extremely significant because it is relatively easy for an abducting parent to show that a child who has spent more than a year in the new location has been well settled in that location, especially because in most cases the abducting parent has returned to her native country.

The problem of concealment of a child was recognized upon the adoption of the treaty. The Department of State’s analysis of the Hague Convention prior to the approval of the treaty stated on the issue of the one-year period that: “The reason for the passage of time, which may have made it possible for the child to form ties to the new country is also relevant to the ultimate disposition for the return petition. If the alleged wrongdoer concealed the child's whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.” 51 Fed. Reg. at 10,494.

Equitable tolling is a rule applied generally in the U.S. to statutes of limitations. The Supreme Court has ruled that, “It is hornbook law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.” Young v. U.S., 535 U.S. 43 (2002).

The Eleventh Circuit has applied that principle of domestic federal law to Article 12 of the Hague Convention. In Furnes v Reeves, 362 F.3d 702 (11th Cir. 2004) it held that the one year period may be “equitably tolled” until the date that the left-behind parent discovers the new residence of a child whose whereabouts have been concealed by the other parent. A child’s father in Norway allowed the mother to take the child from her habitual residence in Norway to spend the Summer in the USA. The child did not return as agreed. The father was then unable to locate either daughter or mother. He filed a return petition in the District Court in Atlanta, Georgia more than one year after the wrongful retention. Father testified as to his fruitless efforts to locate the child and a police report summarized such efforts. Tolling of the one-year period was allowed.

In Driessche v. Ohio-Esezeoboh, 2006 Lexis 92943 (S.D.Tex. 2006), the court refused to apply the tolling doctrine in such a way as would require the return a 6-year old child brought to Texas from Belgium. The court did allow some equitable tolling but it held that it could certainly not extend it a day longer than when it was proven that the father knew where the child was located. The purpose of equitable tolling is to ensure that a person who takes intentional and significant steps to conceal a child for more than one year will not be rewarded for that misconduct and “In those circumstances … the one-year limitation has been tolled until the parent seeking the child has located him.”

Other cases in which equitable tolling has been applied include the following district court cases:

Mendez Lynch v. Mendez Lynch, 220 F. Supp.2d 1347,1362-63 (M.D.Fla. 2002). Equitable tolling applied to ICARA petitions because otherwise “a parent who abducts and conceals children for more than one year will be rewarded for the misconduct by creating eligibility for an affirmative defense not otherwise available.”

Bocquet v. Ouzid, 225 F.Supp.2d 1337 (S.D. Fla. 2002). The one-year limitation period did not begin until the date petitioner confirmed the child’s residence in the United States. In this case a child had been abducted from France to Algeria and subsequently to Florida. The district court held that the one-year period was tolled while the child was in Algeria because not only was she concealed there but in any event Algeria was not a party to the Hague Convention, so that the mother could not have commenced a Hague proceeding until the child first came to Florida.

Antunez-Femandes v. Connors-Fernandes, 259 F. Supp. 2d 800 (N.D.Iowa 2003). An abducting parent should not benefit from the effects of her actions and the barriers another parent faced in initiating a Hague petition.

In re Cabrera, 323 F. Supp. 2d 1303 (S.D.Fla. 2004). The father had given the mother permission to take their child from Argentina to the United States for one year. After one year, the father realized that the mother was not returning the child and he began Hague proceedings. The court found that Article 12’s statute of limitations should be equitably tolled to the time when the left-behind parent becomes aware of the taking parent’s intent to remove or retain the child, providing the child is not settled in its new environment.

Giampolo v. Erneta, 90 F.Supp.2d 1269 (N.D. Ga. 2004). Although the left-behind father knew that the child had been brought to the United States, the abducting mother refused to inform him of the child’s precise location and changed residences several times. The court tolled the one-year period.

Other countries have not applied equitable tolling, preferring in many cases (Australia being an exception; see Director-General v. M and C (1998) FLC 92-829)) to consider concealment as part of the court’s exercise of a general discretion to refuse to return a child in appropriate cases.

Thus, in Cannon v Cannon [2004] EWCA CIV 1330 the English Court of Appeal rejected a tolling rule as being “too crude” an approach that risked producing results which would offend what the purposes of the Convention. Instead, the Court held that trial judges should look critically at any alleged settlement which was built on concealment and deceit, especially if the defendant was a fugitive from criminal justice.

In AC v PC [2004] HKMP 1238, a Hong Kong court refused to allow equitable tolling for concealment. In that case the father had taken the children in August 1999 from their habitual residence in Australia to Hong Kong and then to mainland China where they were placed under the care of the paternal grandmother. The mother promptly submitted a return application to the Australian Central Authority but the children were not detected until April 2004 in Hong Kong. The mother promptly commenced return proceedings in Hong Kong. The Hong Kong court refused to order the children’s return since they were now settled in their new environment.