will hear argument first this morning in case twelve eight twenty grosses alvarez thank you mr chief justice may it please the court i represent men well pose no father who loves his daughter respondent kidnapped that daughter and concealed her from mr lazaro first in the united kingdom for nearly eight months then in france then in the united states in abit this court recognized child abduction to be one of the worst forms of child abuse and that the convention therefore aims to deter and prevent child abduction from occurring in the first instance equitable tolling furthers that we believe that equitable tolling would does provide within the context of the convention consideration opportunity for courts to consider the interests of the child and that's most poignantly illustrated by some of the cases in which it has been applied if i make provide an example and example in respondents brief mendez lynch v mendez lynch on page thirty one of their brief is a case in which the court found acquittal tolling is available it found equitable tolling applied factually the court however considered the facts and circumstances of the child's life including those facts and circumstances that relate to the extent to which the child is settled but it considered those facts and circumstances within the rubric of the article thirteen analysis and that is consistent with what other courts have done in what i would describe what i would term more natural article twelve is ed equitable tolling how would operate how it operates within the context of the convention equitable tolling would prevent the abducting parent from taking advantage of the article twelve to exception that th child should not be returned because the child is now because the parents met that minimal routine showing of the child is now settled he's going to school he or she is has some friends so on and so forth they are living a normal life here what it does not prevent and mend illustrates this as do other cases it does not prevent the four from looking at the article thirteen considerations so for example as in mendez another case the court will still consider if the child if the child is of sufficient age and maturity to mendez v lynch article thirteen will article thirty or i'd like to read it i'm sorry article thirteen is it is that i'm sorry it's one thirty five two different axes here one is the best interest of the child and the other is an adequate deterrent so that parents don't abduct but those axes don't cross very often i think though i respect justice kennedy it's difficult to balance them they're somewhat incommensurate or you know competing considerations but both very important we think that equitable tolling properly balances them within the structure of the convention because equitable tolling it prevents this article twelve to exception that doesn't prevent the article thirteen exception in fact in many ways what we're talking about is not inconsistent still is different from what's in the best interest of the child i think it's true that all we're talking about is for the during the time in which the hearing takes place but these hearings take years and expert witnesses are not available or readily available which just is kind of your point about timing and such a provisional return i do think you know courts district courts have shown great adeptness at dealing with those issues they've entered conditional orders that require the child be returned at a time when the proceeding when the test when the testimony is necessary let me give you this example suppose a child this abducted add at age one and is concealed for ten years  then the location of the child is discovered the other parent fos a petition so that if there's equitable tolling the petition was filed within one year but during those ten years the child has become very well saddled in the new country has learned the language of that country the customs developed quite a school developed relationships and so forth if there is no equitable tolling but the abduction can be taken into account under the doctrine of equitable  discretion that's that's one thing but the way you read this the way you read the convention the equitable toing would mean that the petition was filed within a year and unless one of the conditions in article thirteen was met for example a grave that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation then there would be then the child would have to be removed so there is that major difference isn't there between those two positions there is a significant difference and we think that significant difference is warranted and necessary in order to achieve the effect of deterrence because the second circuit's rule essentially says to abducting parents if you duck your child and you conceal your child for twelve months you will be rewarded well then return the position of the respond and then the government would give a great incentive for parents to abduct children and hide them for a period of time but on the other side is my example i think it was straits your rule would mean that a child who is very well settled in a particular location would have to be returned to the other country for purposes of a custody determination so why do you think the convention should be read one way rather than the other just as leo i hope to make abundantly clear that our position equitable tolling would not mandate that that child be returned all it does but it's significant well how would it not it changes the question that the court asks absent equitable tolling that the courts the question on which the question before the court is is this child settled and the factors that course looked at the courts have looked at that are really th you know settlement is not defined in the convention and congress has left it to courts to decide and courts look at which of the articles which of the provisions in article thirteen would would prevent the return in the hypothetical that justice alito just gave you the courts have looked at i'll say in the decade what i mean what what does article thirteen allow the court to consider says it's not bound to order of the return if the person in his hypothetical or in this case it's really b b there is grave risk that his or her return would expose the child to physical or psychological harm i mean where we have no reason to believe that your client would would harm a child or that the parent in justice alito it's hypothetical would harm the child or otherwise place the child in an intolerable situation what i don't see how any of those things would would would come to the assistance of the child in justice alito hypothetically if i may explain by way of illustration some of the cases what courts have looked at and let me give blondin is another example cited in our brief cited by solicitor general second circuit well known second circuit case that's a natural article twelve one edition is filed before the period of one year expires the second circuit looked at or three judge chin then judge chin in the district court looked at the child's facts and circumstances related to settlement as part of that grave risk analysis there was expert testimony as there often is in these cases that the child is suffering from from potential from post traumatic stress disorder experts testified that return of the child the child should not be returned because it presented a grave risk of harm to the child physical or psychological or that's correct and there are cases years if i may answer in two ways in the example justice alito gave with a ten year old child it's it's very likely that the court would hear from that child i think the more difficult example is let's make that child seven or eight but and  you're watering down the very rigid rule that you want in order to say that there has to be deterrence i understand that point however if there is a difference and so what we're trying to balance here and i think that we what the convention balances what courts applying the convention have found is the proper balance is not for courts to say well let's try and figure out what the best interest are in fact the convention couldn't be clear and congress could have been clear that that is not where it that's where at least wanted courts way waiting into those waters at the convention says in the preamble but the parties countries are firmly convinced that the interests of the children are of paramount importance in matters relating to their importance the provision you're talking about article thirteen says well would returning the child be to physical harm psychological harm or otherwise put the child in an intolerable position so they mean intolerable what so i think this would be a pretty typical case the husband says he was following the wife says no he kicked me in the stomach and did a lot of other things the judge hearing two side says i can't say the husband's right ok so we don't know now your idea is to send the child back to the husband unless the child gets up there and chooses between parents that's pretty tough on eight or nine or ten year old children and very tough and you're going to keep the child going to send it back to the father in this situation unless the mother can prove it's intolerable either because of physical i mean my goodness of physical or psychological have all the doctors saying you should stay in new york a typical problem for a family court judge really tough so you have the convention which says in the preamble look to the interests of the child you have every of the country saying that's what it really means you know the words that are against you you have the department of state in charge of the treaties saying that's what it really means no the was against you and so what do you have going for you that isn't your fault if there isn't too much going for you but nonetheless i'd like to know what to do i think we have a lot going for us you've asked that i think you hit justice brier on just about every issue that i could possibly want to address today but and let me say i respect the position of the eight or nine year old child the difficulty i was that child before judge and given that sort of testimony so i certainly appreciate it but on this question on this question of best interests the convention makes the decided choice that courts that the convention defines how courts are to determine that best interests it doesn't say courts should determine what is in the best interest the child it says look at whether the child is settled under article twelve fourth is not a political you may look at article thirteen other than that the presumption is the best interest of the child is fair or return you mention that the state department is against us which i'm happy to take the opportunity to address here  we don't believe that the state department's view should be accorded great weight in this situation their brief does not speak to the diplomatic consequences of equitable tolling it doesn't speak to that doesn't speak to the idea that the determination that's being made at this stage is really one of venue it's where the main battle would be for that and so we don't want that to linger for a long time and want that decision to be made with for the main then the main that i suppose if we had a case where the judge is uncertain whether the father abused her or not that judge would feel an obligation to stretch out this venue entirely sensitive to and appreciate illustrates the difficulty of these cases and that courts can't really figure out what's who's right or who did what in these circumstances most of usually all of the evidence is overseas on that issue but the convention across the convention decides on taking is that first there is no self help remedy certainly for concealment that nothing excuses concealment of the child  in fact to the extent you said there's a goal and a value of shortening these proceedings to the extent equitable tolling disincentive ises concealment it does that mean the opposite rule says if you conceal i e you extend that period of time during which there's no relationship you'll be rewarded it's an enormous incentive and i point is there is the proper safety valve the standard under article twelve two is so pedestrian it is essentially have you failed to be aside from abducting your child since then have you failed to be a normal parent is your child in school does he or she go to ballet class you take him or her to church they have friends all those things were satisfied here can you be employed what your legal limit what your immigration status now in this case illustrates just how simple and routine that is to achieve in here she didn't have a job she's not here legally i guess the court found that she had the depth and quantity of friendships that your typical pre kindergarten year has and that was enough for her to defeat return the convention properly balanced is the by saying where it presents in courts have done this the district courts are doing this no one says no to the the general norbert spawn it points to a single case where they say here's equitable tolling and boy you know the court got it wrong it was the wrong outcome because they applied equitable tolling as they have been doing for nearly two decades courts can do this but this question as it is in can and can't be as simple as well i r r are you doing fine here in the united states mr reagan justice brian pointed out that all other countries seem to disagree with you that's obviously a concern of ours when we interpret a treaty that all other countries interpret it in a in a single way do you contest that are there any other countries that apply equitable to all in most we believe that it's neither surprising normal meant to say that foreign courts have failed to adopt equitable tolling it's not surprising because they lack the presumption that we do it's not significant for two reasons one we think as i've alluded to i think they miss comprehend equitable tolling the canon court calls it too crude that it won't allow for an accounting of the child's interest and as the courts in the united states have made clear it does it provides a maybe rule who cares if they're wrong the point is a treaty should be interpreted uniformly by only parties to it and you're telling me well all the rest of them interpreted another way but they're wrong you know everybody's out of step with me that's that's just not right not at all justice scalia it was actually your question relates to my third point what those decisions reflect is that the convention leaves room within article twelve for the operation of domestic law article twelve speaks to commencement of proceedings you must commence proceedings within one year it speaks to settlement which are at one seventeen through one twenty one a petition appendix congress decides that's how you stop that period by filing in a court having jurisdiction other countries provide nation courts of nationwide jurist can some countries provide that that the central authority itself will file the petition for the applicant or will file in its own interest on behalf of the child none of that is covered by the treaty yes each state may apply its own rule with respect to not covered by the treaty but i do not read that to say to me that each state may apply its own law in the interpret ing the provisions of the treaty and so can create exceptions on the basis  our of of bringing into effect some other principle of state law that overrides the treaty that's how i read that and our position is that if you look at the drafting history here the drafting history was plenary draft article  levin provided for two periods automatic return if you will return subject to the article thirteen and twenty defenses if you file within six months or for a period discovery rule kept at one year if you didn't know that whereabouts of the child some country said those periods are too short some said they're too long some said we don't want have to deal with this discovery rule issues we're concerned about the of entry burdens what's important is what the drafters did they extended that first period to a year and then with respect to this discovery rule concept they said we're going to that we're going to give you article eighteen provides for return any time we're going to provide article thirty four which can which the explanatory report highlights is meant to provide the invocation of domestic law or rules particularly where twelve to is implicated and it left four countries to define the to define key elements of article twelve two in doing i'm sorry that's turning legislative history in my mind on its head they consider directly and study the s t s brief a discovery rule that would have had a five equitable to and there was lengthy discussion about it and a decision that they wouldn't do that that instead they would expand the period to a year were automatic return was required and they introduced the best interest of the child after that year and that that was now a balancing of all interests the parents and the channels and you're right they had other provisions that head a little bit justice sotomayor we believe that the state department's reading of that history of that drafting history is simplified because there were objections to that period to that quibble to say to that to th discovery rule that were simply to a discovery rule as a general matter it was some countries said we don't want to have to deal with that others cunt other countries said it needs to be longer and so what the the choice that was made was a mr chief justice and may please the court to reverse the second circuit's holding and to apply applicable tolling to article to follow would be squarely at odds with the conventions tatts purpose and drafting history as well as contrary to the understanding and interpretation of every other signatory state consider the issue your honor as we ended on a note of drafting history and to return to justice sotomayor as question about turning that a bit on its head i agree the  drafting history specifically shows that the country is considered to period one of prompt return return forthwith within six months of the removal and six months from the discovery of the whereabouts of the child if the child were not known and what the drafters thought some thought the period needed to be longer but there were countries that wanted it to be shorter that there were countries that were very concerned that the child would become settled in the new over over several drafts and finally arrived at a single period of one year but that wasn't going to be a cut off instead of having a statute of limitations statute of repose construct they said the obligation is going to continue and it's going to continue until the child turns sixteen in last it is demonstrated that the child is now settled in her in its new environed what would troubles me about your position is that it undermines the best interests of children in a very powerful way in so far as it does not deter and indeed encourages provides a great incentive for parents to have doc their children and that was the central purpose of the convention to prevent harm to children and also to parents but centrally to children who are abducted and if you have a world that says if you cannot duck the child and you can hide for a year which isn't very difficult then all you have to do is provide some evidence of settlement and you're going to you're going to win you're going to deter return that m i wrong to be concerned about that your honor your concern is not wrong but i think it's not founded on what what will happen here i don't think it encourages abduction and concealment because that those facts of concealment are going to be taken into account into whether the child in fact is that old well all right perhaps that's the solution to the problem and i wonder if you would accept that that there is no equitable toll when let's assume for the sake of argument but abduction is a is a strong factor that weighs  against the return that weighs against the failure to return the child not just something that can be disposed of in a sentence which is basically what the district court did here but a very strong factor that has to be taken into account in the in the exercise of a little discretion which you disagree with a bit your honor and it's the abduction itself is the what triggers the convention to begin with every single case that is heard under the convention involves a wrongful removal or retention there will be illegal abduction every time and the drafters in fact absolutely we're trying to address that harm to children and they the paramount interest of the children were designing this convention and they did state that there were two but he had it in mind much as the interest of children but the interest of parents it's simply not true than in all cases involving children the paramount interest of the child governs that's not the case or else we would remove many children from their parents in this country absolutely their parents have rights and that is one of the things that this treaty considers your honor it does not consider also mentally the custody determination and with which parent the child should live that is expressively not part of the convention and i think the whether or not the child is settled in a particular case is certainly going to be a significant consideration in the custody termination and yes your i would presume so but as well as any wrongful acts of either or both parents would be taken into account in a full blown merits best interest of the child custody extermination but the convention is trying to address in the instances of where child is now settled in a new environment after having been at least one year in the new environment is should the child be up rooted in anticipation of the full blown  each using the child as the tool in the objective that you have been representing the parents on the one side the allegation in equitable conduct in concealment on the other side of the interest and settlement  designed to deter that kind of kidnapping in you it adopted a fairly strict rule and you're each trying to say the old rule doesn't mean what it means because don't worry we'll take those considerations into account in addressing custody and on the other side will don't worry because there's not that much difference between twelve and thirteen so how are we supposed to decide between those two conflicting considerations of the parents w yes your honor and just to address the one point that the petitioner raised of don't worry about article twelve because there's article thirteen those are completely different constructs in fact congress recognized that when it set a different burden of proof for defenses under article thirteen as opposed to the well settled settled analysis under our direct threats against you in some respects you say there is such a big difference and therefore it is very important that the kidnapping parent do the best he or she can to conceal the child's presence so they get beyond thirteen and twelve you know your honor because if the parent is concealing the child for example if the parent is moving from place to place to evade detection or changing the child to me or not in rolling the child in school to avoid detection why government shill it takes is moving to to peoria i mean i don't mean to denigrate peoria put it all it takes is moving to a place that has no connection though what sense does this make when that a child who is filed within the here but the litigation takes two or the child to a filing is a day after the year and the litigation takes a year and they both in the same situation why should those two children be treated differently why should one have the benefit of settle kidnapping of children your honor absolutely that is one of the objectives with the convention and it exists because that was presumed to be contrary to the interests of children and i don't dispute that in the majority of the cases that but the concept that the drafters had to grapple with this issue they wanted to deter child abductions absolutely but they also recognize that at some point in time it wasn't going to be just parent but by the situation for the return you agree with that yes your honor i do think it's it should be broader than that i think there are courts that the article thirteen defense is supposed to be narrow just like the article twelve t settled exception but the settled exception isn't enough excuse me article thirteen isn't enough because the drafters wanted article twelve two they wanted to be able to take into account the situation of the child after this one year and why one year and not one year including the hearing i think it was about the drafters were concerned both that it was going to be too long and that it was going to be too short misquotes going back to justice alito is question could you tell me how you think this works you said in  response to justice alito that sometimes concealment can be a factor in determining whether a child is settled and i presume you mean if the body conceals the child by moving the child from place to place the child will not be settled  isn't also a factor in determining whether a settlement child should nonetheless be returned your honor i have i that's the question of whether and to what extent there is discretion to return a child a settled child under article twelve and i think we're under an article eighteen your article eighteen my understanding of article eighteen in the and the government's interpretation of article eighteen is that article the teen was designed not as a duty or something arising under the convention honor i struggle with this because i think that there is a reading of the plain language that says no but it's there is the general feeling that there should be some sort of a steep hand what is the answer because i'd like a straight answer year a month later the father finds the both of them goes to a family judge very tough job by the way and the family judge reads this and he says well i have to admit the child is settled here now in iowa is settled but he returns on the child back to london he's going to be just about it settled i mean really it's not that much difference but i can't say the child's not so far this is the most unfair thing i've ever seen she hides out for a year the child to be just as well back in london almost as well you know maybe better but you know what can the family court  judge do that's the straight question we've been trying to get your answer to that and it isn't an answer to say you could say that's the answer i don't know your are in in that question there's there's the question of what can they do under the convention and what you know what can they do i just want to know if the family court judge will say please settle this and the two of them won't yes you're on so now what can the judge do is the father simply out of luck or not know your honor because a full blown merits best interest of the child analysis under the the cost of the type family court proceeding that is in vision to follow a return petition under the convention will take all of those facts into a prior to that if i could go back to it do you agree with justice scalia that really at that point there's nothing to do once the determination has been made that the child is settled there is no remain in discretion and the judge has your honor i think there is some discretion under article twelve to return a subtle child but it cannot be under a set of facts that were completely within the minds of the drafters when they chose the one year period i don't understand what you're saying give us an example your honor it's hard to come up with a specific example but there can't be can't be you just i want to say no it seems to me a case requires you to say no and is discretion under article thirteen and twenty as well the way that the language is written in article thirteen for example states that the state is not bound on one thirty six and a if the petition appendix that the state  not bound ordered the return if it is established so it's not saying that the return must be denied if these defenses are established there's slightly different language in article twelve which i think is the reflection of the different draft well you're confusing me let's say i'm the judge who has to decide this the one year period has just passed and i have evidence that this child who's now two years old has some friends to play with the friends goes to the park  become accustomed to some american customs knows the neighborhood so the child has settled to that degree and you say even if there's been very elaborate a very elaborate effort of  concealment no proffer justification for the abduction no indication that there would be any serious harm if the child were sent back to the u k you say  that's just too bad that's your answer no your honor i think some of the factors you pointed out for example that there would be no serious harm if the child were returned not necessarily physical harm or article twelve says is that if it's less than a year the child is returned forthwith if it's more than a year the child shall be returned forth well with unless unless it is demonstrated the child is now settled in its new environment it doesn't say you don't return it if the child is now well settled in the environment it just says you don't have to return it forthwith yes or no i would have thought that that would have opened room for discretionary factors but you have not given me a case that said that so you have not given me to anybody who said that what i thought was the natural reading and what you'd like to be the natural reading you're not given any support for the proposition that is the natural read and i only assume from your brief that that was not the reading you were given no and that is not the reading it has to be given frankly i read it the other way shell ordered the return unless it is demonstrated that the child is now settled i assume it to me in which case you shall not order the return isn't that the way you've been reading you know your honor we do what is not ok well gee we don't have  may or may not at your discretion but boy that would open up a big discretionary hole if you read it that way wouldn't it no your honor it should be read that broadly its certainly in the house of lords in england and  m did find that there was a residual discretion after finding a child so i should read that case because the language says unless it is demonstrated the child is now settled you return it forthwith unless article of the preceding article twelve the judicial order ministry of authority request really isn't much background to order the return of the child if the person blah blah blah says to me that under twelve you are bound and you're shall also order the return after this one year period unless that is demonstrated and the question is what happens if it's demonstrated that do you have to return still or can you or do you have to keep the child here and i think what the generally the courts have found and it's not unanimous internationally it's not hong kong says in many cases this would be an example the cost of experts to testify about the child's adoption an adaption or settlement in new york would be very substantial the experts who did famine the the child the experts who knew about the school the school officials themselves would all have to go to england to test it is that a factor that the there the courts are divided internationally on whether equitable discretion exists to return a child that has been determined to be settled but i think on balance there should be some level of equitable discretion to return a subtle child but not under simply because of facts of concealment that were firmly within the minds of the drafters when drafting article twelve what what what the government's position on this question we've just been discussing whether article twelve is absolute or whether there is discretion even within our to two twelve even those specific elements of discretion are contained in article eight it's our position that under article twelve there is discretion to return a settled child and that that comes from articles twelve itself as you pointed out the the language of article twelve says that if more than a year has passed the court shall order the return of the child unless the child is settled in her new environment and then i mean i think it's clear that that could be read in two ways and the court has said that when the similar except shell formulation and we cited in our brief the department of commerce versus u s house of representatives case the similar except shall language it's interpreted depending on the context in which it appears and we think it's very clear from the convention that in the context of the convention and it specifically article twelve that the better reading is that a settled child may be returned what is in the context includes section thirteen which lists specific reasons why you can depart from well i mean it seems very strange to say in addition to that there is a whole pot load of of other reasons within within twelve itself well article it's true that articles thirteen and twenty are written in expressly discretionary language but those are sort of set out as exceptions to the rule of article twelve article twelve is written up differently but there's nothing in the convention that ever says that a child has to stay in the country where she has been a what an example of words subtle child might be returned a very very good thing the child is is exercising under article twelve we think it's guided by the purposes stated in the convention so yes first you look at whether the child is settled and that could be enough to defeat the presumption that a abducted child should be returned you can also look at whether the child could easily resettle if if the child was sent back for example a ten year old child who hat was in school and had a a lot of friends in a routine in london was object abducted to the united states for a year that child may not may be settled in the united states but she may not have a difficult time resettling you expect all the signatories to this treaty to come up with essentially the same exceptions under under what you say is the interpretation of article twelve well i mean it seems to me it just makes that article impossible to apply consistently country to country no i don't think so and the country the other signatories have have almost all i mean i think the hong kong court does says that it doesn't have discretion but it said in that case nevertheless it would even if it had discretion it wouldn't order the children returned but the other courts of signatory countries that have interpreted article twelve have all found a discretion whether it be an article twelve or an e yes i mean it's a courts in the united states have done that i think courts in other in courts have as well yes but if i understand the way you think this works you don't need there's not even a presumption that a settled child will stay you're just saying once you've found a settled child the obligation to return the child goes away but at that point it really is a kind of all things considered inquiry with no presumption operating at all just late of the purposes of the treaty well i think that the last part justice kagan is the most important part that it has to be guided by the objectives of the treaty that it's not a freewheeling best interest of the child analysis or where this child should be but you could take into account the principle in article twelve that it's harmful to uproot a settled child but you can also weigh against that the idea that this convention is really geared in the first place toward preventing abduction i would think it would be very unusual for a family court in that situation not to go ahead with the custody proceeding for it because i think the child is settled now do i send the child back so that they can do the custody proceeding in england or just go ahead and do it here don't you think most family court judges would say let's just go ahead and do it here well if there's if there's reason to send the child back even if even a settled child we think that the purposes of the convention should should prevail they are what kind of reasons what kind of reasons would there be that those send the child back that the parent engaged in behavior like concealing the child that is that is not condoned under the convention that so you would visit on the child the behavior of the parent we think the court i mean the court h discretion we think to order a child returned even if she settled i mean that of that discretion could be a abused if a child has been in the united states for example for five years and the court says well the child was being concealed so we will send the child back but but we think that there are still be some cases in which the court could probably not abuse its this question by deciding the case either way but yes we think on the one hand equitable tolling is not a good way to deal with this problem because article twelve specifically wants courts to take into consideration the interest of how to whatever fears my colleagues have i've only found two or should say my clerks have only found two published decisions in which courts have returned to china so it's not as if theory norene the settlement issue in fact some might say that they're not giving a duck session enough weight in enough cases but  the hong kong court who said there might not be a discretion to return a settle child who is not the highest court of on that that's right i don't think any of these decisions are from the highest and so if we're going to give uniform meaning the uniform meaning of international weight is that abduction is one factor for a court to consider and it's and what a bull wing on settlements because that's the whole purpose of the convention center reason in the preamble that's right but isn't your own weezer isn't there always abduction as your friend pointed out the whole treaty only applies where the child's been abducted so you say oh well there's a special exception to the rules of the treaty where the child's been abducted with the treaty applies to we understand that induction is going to take place in every case i think we are looking for something more than what happened in this case some sort of concealment that happens so that  the parent that is left behind and looking for the child cannot find him i don't know how much sense on all what sense that makes let's say such a child is abducted in mexico and let's say that the parent who is left behind is not a rich or sophisticated person and now the child is brought to the united states and the parent in mexico has a year to find the child in the united states doesn't speak english can easily find a lawyer to handle the case she's got enormous country to try to find the child in the united states how in the world is flat going to be done well you don't need to do very much concealment you can go to peoria you can go to new york city and and it's going to be an enormous struggle to find that child within that year the first thing i'll point out is that article twelve the drafters assumed that there was going to be some difficulty in locating children and they decided on this one year period but also point out that the state department dedicates significant resources to finding children that are thought to have been abducted to the united states they country and typically with an idea of what the abducting parents connections are to other countries and so if the united states is singled out as a country to which the child might have been taken the mexican central authority would contact the united states central authority and immediately somebody would be assigned to start looking for that child within the united states and there are a great number of resources that are channeled toward that through the state department and working with other federal agencies the crime databases the federal locator service that's used to track down people in the united states to pay child support it works with state law enforcement agencies who can check school records and driver's license records and things like that so it's not like it's i mean it is difficult we are acknowledging that it's quite should be returned that that an abducted child should be returned but when the determination that the child is settled can overcome that presumption and then the other equitable factors like concealment come into play justice scalia you know i have one more question at the end of the day i know but i understand the government's position i don't see any difference between your position and in the position of the petitioner here except that he wants to call it equitable tolling and you want to say we can take concealment into account under section twelve no i'm not apply the absolute rule where there's been concealment i don't care whether you call it equitable tolling or not i think the positions are quite different because under an equitable tolling analysis putting aside that you may be able to satisfy a different convention defense like one under article thirteen or twenty under an equitable tolling analysis the court would be prohibited from taking into account whether the child is settled in her new environment in determining whether to send her back take the facts or circumstances the child's life into account it can and that is that is the mendez case that raise o'quinn that's blondin there are innumerable cases that show that they can the court can take that into account it's just a question of what is the question to which the court applies those facts under our circumstances it's not this article twelve two is the child doing fine here is the child living a normal life it's a different question is is is the is the goal and motive a presumption for return going to be defeated here because it would present a risk of harm to the child we think that's the right question because that's the only question that deters concealment can i ask you how it works here i don't know a year has passed the father never found out where the child was now he suddenly finds out he runs to iowa the judge looks at this convention and he says what all the years you've lost but said i don't have to i don't have to return and forth with the child's not going to suffer intolerable injury i can't use that i don't have to return him forthwith now i look is the settled yes he's settled all right end of the matter but do we now in the discretion of the father have a custody hearing the father can say yes all that's true but i should have custody and he goes and under i we see who is entitle to custody and he has something going for him namely the mother's acted pretty badly unless she has excusing circumstances in abducting the child does that happen or not well the custody proceeding would occur in a different court of course it wouldn't occur in the federal window it would go to the family court her so is that would that happen could that happen of course i think of course ok if the answer is of course what we're talking about here is on the one hand we don't want to encourage abductions on the other hand we don't want to treat the child as a yo yo absent so the question is whether the custody hearing will be in a family court in britain or whether it will be a family court in the united states that's right that's  right and also the question is how do we determine so are you sure about whether there's discretion and that's a little bit secondary because we can have a big full blown hearing about who should have custody the would be in a different court it's true if you lose there is more incentive to kidnap the child it's also true if you win there is a much greater likelihood that the custody hearing will be in britain rather than the united states which is the yoyo problem and our cars are now you know what now say what you want to say our if i understand it correctly our concern is the deterrence prevention which is the goal of the convention justice scalia asked about other nations and uniformity and there could be no better reflection about the room created in article twelve and that this that that uniformity is not or that this is not a problem where we need to be so concerned about uniformity in two thousand and six through the special commission process the meeting of the death of the of the members of the convention the united states specifically  apprised the other nations that was employing equitable tolling in the twelve to context as the government concedes no one else disagreed no one expressed any concern about the know you i did states doing that and that's a clear reflection that there is this room in article twelve governments and response position is that concealment may be taken into account the problem there is the respondent still has this enormous incentive to conceal which is the purpose that's the primary goal to prevent it from happening concealing the duction that's the goal of the convention but also there's no standard they haven't articulated the standard the government doesn't articulate want it it amounts to a standard that says concealment matters unless it doesn't that's an enormous that ephemeral standard is very difficult for a respondent overcome it's very difficult for a district court to apply and what it does is it creates this incentive to conceal because no one even knows what the question is equitable tolling defines the question within the context of the convention it says by tolling this is the question you should answer if there's not to be tolling and there are lots of courts lots of cases where courts have found we shouldn't toll because the child wasn't concealed or the parent didn't exercise due diligence finding the child then will ask the article twelve to question whether the child to settle to the bottom line is  will result in the abduction of more children equitable tolling will disincentive eyes that i would urge the court to look at those cases i mentioned mendez blondin razor the queen is another one two thousand and five westlaw six seven