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Friday, March 7, 2014

Lozano v. Montoya Alvarez [United Kingdom] [Equitable tolling]

In Lozano v. Montoya Alvarez, --- S.Ct. ----, 2014 WL 838515 (U.S.) Respondent Montoya Alvarez and petitioner Lozano resided with their daughter in London until November 2008, when Montoya Alvarez left with the child for a women's shelter. In July 2009, Montoya Alvarez and the child left the United Kingdom and ultimately settled in New York. Lozano did not locate Montoya Alvarez and the child until November 2010, more than 16 months after Montoya Alvarez and the child had left the United Kingdom. Lozano filed a Petition for Return of Child pursuant to the Hague Convention in the Southern District of New York.

The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the International Child Abduction Remedies Act (ICARA). 102 Stat. 437, 42 U.S.C. §§ 11601–11610. That statute instructs courts to “decide the case in accordance with the Convention.” § 11603(d). Echoing the Convention, ICARA further provides that “[c]hildren who are wrongfully removed ... are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” § 11601(a)(4). ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies. § 11603(e)(2)(B). Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court “shall order the return of the child forthwith.”  Article 12 further provides that the court, “where the proceedings have been commenced after the expiration of the period of one year [from the date of the wrongful removal], shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Thus, at least in some cases, failure to file a petition for return within one year renders the return remedy unavailable. 

Finding that the petition was filed more than one year after removal, the district court denied the petition on the basis that the child was now settled in New York. It also held that the 1–year period could not be extended by equitable tolling. In re Lozano, 809 F.Supp.2d 197, 204 (S.D.N.Y.2011). “Viewing the totality of the circumstances, ” the court found sufficient indicia of “stability in her family, educational, social, and most importantly, home life,  to conclude that the child was settled in her current environment and that repatriation would be “extremely disruptive Lozano argued that the child should be returned forthwith because the 1–year period in Article 12 should be equitably tolled during the period that Montoya Alvarez concealed the child. The court rejected that argument, holding that the 1–year period could not be extended by equitable tolling. The District Court held in the alternative that even if equitable tolling could apply, it would not be warranted in this case because Lozano had contact information for Montoya Alvarez' sister Maria in New York. Lozano's solicitors did not attempt to contact Maria to determine if Montoya Alvarez and the child were there. 809 F.Supp.2d, at 229–230. Consistent with Second Circuit precedent, see Blondin v. Dubois, 238 F.3d 153, 164 (2001), the District Court also considered “whether to exercise its discretion and repatriate the child even though she was now settled in New York.” 809 F.Supp.2d, at 234. The court declined to exercise that discretion because the “strong evidence that the child is quite settled in New York” outweighed Lozano's “fairly diligent” search efforts and Montoya Alvarez' conduct. On appeal, the Second Circuit affirmed. 697 F.3d 41 (2012). The Court of Appeals agreed that the 1–year period in Article 12 is not subject to equitable tolling. The United States Supreme Court, in an opinion for a unanimous court by Justice Thomas, held that Article 12's 1–year period is not subject to equitable tolling and affirmed.