Lozano

Lozano in 2013

United States views on international law [1] in relation to Lozano: Another case relating to the Hague Convention, Lozano v. Alvarez, No. 12-820, discussed in this world legal encyclopedia (in relation to issues that took place in the year 2012) at 467-74, is the subject of two U.S. amicus briefs filed in the U.S. Supreme Court in 2013. In its amicus brief in support of the petition for certiorari in the case, the United States asserted that Supreme Court review was warranted on the question of whether the one-year period for automatic return of a child in Article 12 of the Hague Convention is subject to equitable tolling. The U.S. brief on the petition for certiorari filed on May 24, 2013 is available at (Secretary of State website) state.gov/s/l/c8183.htm.

Some Aspects of Lozano

As the U.S. brief on certiorari advocated, the Supreme Court agreed to review the issue of equitable tolling. Excerpts (with footnotes omitted) follow from the U.S. amicus brief filed on October 29, 2013 arguing, as the United States had in the court of appeals, that the one-year period under Article 12 is not subject to equitable tolling. The October 29 amicus brief is also available at (Secretary of State website) state.gov/s/l/c8183.htm.

Developments

Article 12 Provides For The Return Of A Child “Forthwith” Only If A Petition Is Filed Within One Year

A central purpose of the Hague Convention is to “secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Art. 1; see Introductory Declarations. To accomplish that purpose, the Convention provides that children abducted in violation of a parent's rights of custody should be promptly returned to their country of habitual residence. See Arts. 1, 12. Article 12 requires that a court order the return of a child “forthwith,” except in limited circumstances provided in other Articles (see note 2, in this world legal Encyclopedia), if a petition is filed within one year of the wrongful removal or retention of the child. The Convention also provides, however, that if more than one year has elapsed, the court may consider whether the child is “now settled” in her new environment. Art. 12. That one-year period is not subject to equitable tolling.

Details

1. “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Abbott v. Abbott, 130 S. Ct. 1983, 1990 (2010) (citation omitted). The plain language of Article 12 indicates that the one-year period is not subject to extension. Article 12 provides that if a child has been wrongfully removed or retained in violation of a parent's custody rights, and “a period of less than one year has elapsed from the date of the wrongful removal or retention” to “the date of the commencement of the proceedings” for return of the child, authorities in the State where the child is located “shall order the return of the child forthwith.” Convention Art. 12. When “the proceedings have been commenced after the expiration of the period of one year,” the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in [her] new environment.” Ibid.

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The one-year period thus runs “from the date of the wrongful removal or retention,” and Article 12 makes no provision for an extension of that period. Convention Art. 12. As the court of appeals observed, if the States Parties to the Convention had meant to vary the starting date of the one-year period based on the circumstances of a left-behind parent's locating his or her child, they easily could have adopted a discovery rule-providing for a one-year period running from the date the petitioning parent learned or reasonably could have learned of the child's whereabouts. Pet. App. 17a n.8.

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The choice of language is significant because the Convention negotiators fully understood that wrongful removal of a child to a foreign country commonly results in difficulties, often due to concealment, in learning the child's whereabouts. See Elisa Pérez-Vera, Explanatory Report in 3 Hague Conference on Private Int'l Law, 14th Sess., Oct. 6-25, 1980, Actes et Documents de la Quatorzième Session: Child Abduction 426, paras. 107-108, at 458-459 (Permanent Bureau trans., 1982) (Actes et Documents) (acknowledging “difficulties encountered in establishing the child's whereabouts,” but stating that the “single time-limit of one year” was the optimal resolution of competing concerns); see also, e.g., Replies of the Governments to the Questionnaire in Actes et Documents 61, 88 (“There is a sixth problem which is becoming all too common – the taking and concealment of a child by a parent before or after a custody decree.”); Comments of the Governments on Preliminary Document No. 6 in Actes et Documents 215, 231232 (noting that in many cases, a child's location is unknown at the time of abduction and that some abductors will conceal the child's whereabouts). Given that understanding, one would expect Article 12's text to provide for the running of the one-year period from the date the leftbehind parent knew or should have known of the child's whereabouts, or to address tolling in circumstances involving concealment, had the Convention's drafters intended either result.

Lozano in 2013 (Continuation)

United States views on international law [1] in relation to Lozano: 2. The Convention's drafting history demonstrates that the decision to calculate Article 12's one-year period from the time of a child's removal or retention, rather than from the discovery of the child's whereabouts, was a considered choice made during Convention negotiations. See Air France v. Saks, 470 U.S. 392, 396, 400 (1985) (noting that because multilateral treaties are negotiated by numerous delegates, “the history of the treaty, [and] the negotiations,” may be especially important, and therefore “[i]n interpreting a treaty it is proper *** to refer to the records of its drafting and negotiation”).

More about Lozano

At the outset of the process of drafting the Convention, a preliminary report prepared for a Special Commission charged by the Hague Conference on Private International Law with studying the problem of international parental kidnapping emphasized that “[t]ime is an important factor in the adjustment of the child to his new situation” and that a “court may find it more difficult to send back a child who has been forced to adjust to his new situation.” Adair Dyer, Report on International Child Abduction by One Parent in Actes et Documents 12, 23-24. Thus, the Special Commission initially suggested that if “an application has been made more than six months after the removal” and the child has been “habitually resident” in the new country for more than one year, a court in the new country should “assume jurisdiction to determine” the proper custody arrangement rather than simply return the child. Conclusions Drawn from the Discussions of the Special Commission of March 1979 on Legal Kidnapping in Actes et Documents 162, 164.

Development

Consistent with that view, the preliminary draft of the Convention provided that when a parent sought return within six months of the abduction, the court was required to “order the return of the child forthwith.” Preliminary Draft Convention Adopted by the Special Commission and Report by Elisa Pérez-Vera in Actes et Documents 166, 168 (Art. 11). But when the child's location “was unknown,” the six months would “run from the date of the discovery,” although even then the “total period” could not exceed one year. Ibid.

Details

During consideration of that draft, the delegations from the participating nations debated the workability of a two-tier system and the proper length of each time period. See, e.g., Comments of the Governments on Preliminary Document No. 6 in Actes et Documents 216, 218, 242; Proces-verbal No. 6 in Actes et Documents 283, 288; see also Proces-verbal No 7 in Actes et Documents 290, 291-293. Several delegations expressed concern that abductors would conceal the whereabouts of their children. See, e.g., Comments of the Governments on Preliminary Document No. 6 in Actes et Documents 216. Nevertheless, after a number of delegations expressed the view that determining the “date of 'discovery' ” would be difficult, the delegations decided to adopt a single time period that did not vary based on discovery. See Procès-verbal No 7 in Actes et Documents 291-293; Explanatory Report para. 108, at 458-459.

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During discussion of the appropriate length of that single time period, the United States delegation urged that the period should be long enough to account for the difficulty of locating a child but should also take into account the possibility of the child's assimilation into a new environment after enough time had passed. Procès-verbal No 7 in Actes et Documents 292. … Under the resulting framework, as described by the United States delegation, the Convention provides for a one-year period in which “no assimilation of the child was presumed to have occurred” and “return could be refused only on the grounds set forth” expressly, e.g., severe risk to the child. Id. at 315; see note 2, in this world legal Encyclopedia. After one year, “assimilation in a new environment [becomes] an open question.” Procès-verbal No 10 in Actes et Documents 315.

Resources

Notes

1. Lozano in the Digest of United States Practice in International Law

Resources

Notes

1. Lozano in the Digest of United States Practice in International Law