Don't Stop the Clock: Why Equitable Tolling Should Not Be Read into the Hague Convention on International Child Abduction

Abstract

Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction allows an abducting parent to avoid the return of the child if the parent can show that more than a year has passed since the wrongful removal or retention of the child, and that the child is well settled in his or her new environment. In cases where concealment of the abducted child prevented a parent from filing a claim within one year of the abduction, the U.S. Courts of Appeals for the Ninth and Eleventh Circuits have applied equitable tolling to delay the start of the temporal limitation. More recently, however, the U.S. Courts of Appeals for the First and Second Circuits have rejected the application of equitable tolling. The U.S. Supreme Court will hear arguments on this issue in December 2013. This Note argues that the text, drafting history, and underlying purposes of the Convention fail to support the application of equitable tolling. It then explains that the Eleventh and Ninth Circuits applied equitable tolling to the Convention—despite a lack of support for doing so—because they adhered to the American legal tradition of placing the rights of parents ahead of the rights and interests of children. Ultimately, this Note recommends that the Supreme Court reject the application of equitable tolling and instead instruct lower courts to consider the child’s concealment as part of their analysis of whether the child is well settled in his or her new environment. This proposed approach is consistent with the text and underlying goals of the Convention, and—like the application of equitable tolling—will work to deter child abductions.