Wednesday, March 05, 2014

Supreme Court New Hague Abduction Convention Ruling

The U.S. Supreme Court has today, in Lozano v. Montoya Alvarez, upheld the Second Circuit ruling that the one year period in the “one year and settled” exception to the Hague Abduction Convention is not subject to equitable tolling. 

The decision is not surprising since that is what the treaty provides and the American equitable tolling gloss was not contemplated in the Hague drafting process and has only been applied in this country. 

What is refreshing in the opinion of Justice Thomas is his use of international authority as the key basis for the decision. 

Justice Thomas relied significantly on case law from England, Canada, New Zealand and Hong Kong in reaching the conclusion that the U.S. reliance on equitable tolling was out of the international mainstream and inappropriate.

Now, if only the Supreme Court would bring the U.S.’s crazily conflicting and confusing interpretations of habitual residence in Hague cases into the international mainstream!