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).
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
Equitable tolling is a rule applied generally in the
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
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.
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
Giampolo v. Erneta, 90 F.Supp.2d 1269 (N.D.
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  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  HKMP 1238, a