Don't Stop the Clock: Why Equitable Tolling Should Not Be Read into the Hague Convention on International Child Abduction

IntroductionEstelle Bocquet and Kamal Ouzid had a child together in Miami, Florida in 1996.1 The couple lived with their child, Noe, in Miami from 1996 to 1998.2 In 1999, Bocquet returned to France and enrolled Noe in a French preschool.3 The family lived together in France until Au1 gust 2000.4 Then, one day, Bocquet returned home from work to find that Ouzid had taken Noe to Algeria.5 Bocquet quickly filed a complaint with the police, and attempted to exercise her custodial rights through a French-Algerian Treaty.6 Bocquet also tried to visit her son in Algeria, but Ouzid and his family refused to help her obtain the necessary visa.7 Bocquet finally obtained a visa to visit Algeria, but Ouzid left for America with Noe on the same day that Bocquet arrived in Algeria.8 After more than a year without seeing her child, Bocquet travelled to Miami in October 2001 and Ouzid finally allowed her to have a supervised visit with Noe.9 In March 2002, Bocquet obtained a French divorce decree that awarded her sole custody of Noe.10 With this decree in hand, Bocquet filed a petition in an American court under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), which allows a court to order the prompt return of a child who has been removed in violation of a foreign custody order.11 Accordingly, Bocquet was finally allowed to advocate for the return of her child, but more than a year after his removal.12Bocquet's agonizing experience is one of many cases that illustrate the human aspect that prompted both the adoption of the Convention and the decision of the United States to ratify it.13 Despite the Conven4 tion's goal of deterring the wrongful removal of children, under normal circumstances Bocquet would have no recourse available because of an exception found in Article 12 of the Convention that was available to Ouzid: the well-settled defense.14 Under the well-settled defense, a court may refuse to return a child if the respondent shows by a preponderance of the evidence that: (1) the petition was filed more than a year after the alleged wrongful removal; and (2) the child is settled in his or her new environment.15 This defense recognizes that the swift return of a child following a prolonged absence, without a judicial review of the merits of the custody claims, may not always be in the child's best interests.16Despite the fact that Noe was retained in violation of Bocquet's custodial rights for more than a year before Bocquet filed her petition under the Convention, in 2002 in Bocquet v. Ouzid, the U.S. District Court for the Southern District of Florida held that the well-settled defense should not apply to Noe's abduction because of the doctrine of equitable tolling.17 Guided by this doctrine, the court concluded that the one-year period under the well-settled defense should not start until the date when Bocquet learned of Noe's address in the United States.18 As such, the court determined that Bocquet's petition had been filed within the one-year period, and therefore Ouzid was barred from raising the well-settled defense.19Equitable tolling can render inapplicable the well-settled defense simply by manipulating the timing of the case, rather than determining whether or not the child is well settled.20 Because the application of equitable tolling manipulates the start of the one-year clock, it eviscer14 ates the purpose of the well-settled defense: to leave in place children who have been living in their new environment for over one year.21 The Bocquet court reasoned-as have other American courts-that without equitable tolling, the well-settled defense would serve to encourage the concealment of abducted children.22 The Bocquet court also joined some of its sister courts in analogizing the one-year period to a statute of limitations, and noted that equitable tolling is traditionally read into federal statutes containing such limitations.23 Accordingly, these courts placed the deterrence of wrongful removal, and therefore the custodial rights of the left-behind parent, above the interests of the abducted child in maintaining the stability of his or her new environment. …