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US high court takes up parental abduction case

US high court takes up parental abduction case

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The U.S. Supreme Court has agreed to decide whether a petition for the return of an abducted child by a parent under the Hague Convention can be equitably tolled when the abducting parent concealed the whereabouts of the child from the other parent.

“This is a recurring and important issue,” said Shawn Patrick Regan, a partner with Hunton & Williams in New York, who represents the left-behind parent in the case. “Statistics show it arises in large percentages of abduction cases and courts are resolving it inconsistently.”

The court will review a ruling from the U.S. 2nd Circuit of Appeals that involved a five-year-old girl born in London whose mother took her first to France and then to the U.S., allegedly to escape the father’s abuse.

The father finally learned his daughter’s whereabouts, but not until 15 months after she was abducted. He filed a petition for return of the child under Article 12 of the Hague Convention on the Civil Aspects of Child Abduction, which provides that a child who has been “wrongfully removed” to another country shall be returned.

He argued that the court should equitably toll the one-year statute of limitations until the date on which he could have reasonably located his child.

The 2nd Circuit ruled that the one-year statute is not subject to equitable tolling.

Instead, a petition for a child’s return filed after the one-year deadline will be considered based on whether the child has been resettled in the new country, the court said.

“The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year … shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. …
“In sum, the Convention’s drafting history strongly supports [the mother’s] position that the one-year period in Article 12 has was designed to allow courts to take into account a child’s interest in remaining in the country to which she has been abducted after a certain amount of time has passed. If this understanding of the second paragraph of Article 12 is correct, allowing equitable tolling of the one-year period would undermine its purpose. A child may develop an interest in remaining in a country in which she has lived for a substantial amount of time regardless of her parents’ efforts to conceal or locate her,” the court said.

A decision from the Supreme Court is expected next term.

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