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Equitable Tolling Under The Hague Convention: An In Depth Look at Lozano v. Montoya Alvarez

Equitable Tolling Under The Hague Convention: An In Depth Look at Lozano v. Montoya Alvarez

Katherine Dressel

Lucia Montoya Alvarez and Manuel Jose Lozano met and fell in love in the city of London.[1] In October 2005, they gave birth to a daughter, around whom this case revolves.[2] Lozano described the relationship fondly, while his partner recalled physical and emotional abuse.[3] Lozano also remembers his daughter being generally happy for the first three years of her life, while her mother would argue the contrary.[4] The child began to exhibit crying fits and bed-wetting incidents. Montoya Alvarez also reported that her daughter refused to speak when Lozano was present.[5] Needless to say, Montoya Alvarez was concerned about her daughter’s fearful behavior around Lozano.[6] On November 19, 2008, Montoya Alvarez left home with her daughter, never to return.[7]

Mother and daughter resided in a women’s shelter for seven months before leaving for France.[8] A mere five days later, the two arrived in New York to live with Montoya Alvarez’s sister, Maria.[9] Shortly thereafter, a therapist diagnosed Montoya Alvarez’s daughter with posttraumatic stress disorder.[10] Six months later, the therapist saw “a completely different child” who was quite vocal and a stranger to bed-wetting.[11] Meanwhile, Lozano had made several attempts to locate and communicate with Montoya Alvarez and his daughter, whose whereabouts were unknown to him. Lozano filed an application in the United Kingdom for a court order to compel the disclosure of the child’s whereabouts.[12] He eventually filed with The Hague Convention Central Authority for England and Wales, seeking return of the child.[13] More than sixteen months after his daughter left the United Kingdom, Lozano located Maria’s address in New York and petitioned for return of the child under the Hague Convention.[14] Ultimately, Lozano’s petition was denied, as the child was already “settled” in New York.[15]

Lozano appealed, contending that the one-year period in Article 12 of the Hague Child Abduction Convention should be equitably tolled for the time during which Montoya Alvarez effectively hid his daughter from him.[16] Black’s Law Dictionary defines “equitable tolling” as “the doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until the limitations period had expired.”[17] The United States Supreme Court held that equitable tolling could not extend the one-year period.[18]

The Hague Convention on the Civil Aspects of International Child Abduction was concluded in 1980. Lozano v. Montoya Alvarez was only recently argued before the U.S. Supreme Court in December of 2013. This decision is an entirely new development regarding equitable tolling under the Hague Convention. Further, Lozano repealed Duarte v. Bardales[19] and Furnes v. Reeves,[20] which both held that equitable tolling was available. The U.S. Supreme Court’s decision in support of reproving wrongful removal or retention was correct.

There is no principle of equitable tolling in the Hague Child Abduction Convention. Nor is there even subtle utterance of the concept in its implementing legislation, the International Child Abduction Remedies Act.[21] National courts in other signatory states have repeatedly confirmed this.[22] Typically, in arguing entitlement to equitable tolling, one must establish two elements as defined by the Supreme Court in Pace v. DiGuglielmo: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”[23] The drafters of the Hague Child Abduction Convention did not provide for such an extension. The concept is therefore “neither required by the Convention nor the only available means to advance its objectives.”[24] Ultimately, the doctrine of equitable tolling goes against the purpose of the Hague Convention in protecting the best interests of the child.

This Note intends to analyze and explore the U.S. Supreme Court’s reasoning in Lozano v. Montoya Alvarez. Mainly, it asserts the Court rightly held that the equitable tolling of a one-year period is not available when seeking return of an abducted child pursuant to the Hague Convention. Part I will contain a basic legal and historical overview of the Hague Convention on the Civil Aspects of International Child Abduction (1980) and the international law and customary international law that surrounds it. Part II will address the subject of equitable tolling and the role it plays in various fields of law. Part III will explore the success of both parties’ claims and analyze them beyond the scope of the Court’s opinion. Finally, Part IV will explore the humanitarian concerns and policy arguments encompassed by this case.

Questions and inquiries regarding this Note may be forwarded to the author at

[1] Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1229 (2014).

[2] Id.

[3] In re Lozano, 809 F. Supp. 2d 197, 204 (S.D.N.Y. 2011).

[4] Lozano, 134 S. Ct. at 1229.

[5] Id.

[6] Id. at 1230.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] In re Lozano, 809 F. Supp. 2d 197, 212 (S.D.N.Y. 2011).

[12] Id. at 210.

[13] Lozano, 134 S. Ct. at 1230.

[14] Id. at 1231.

[15] In re Lozano, 809 F. Supp. 2d at 230.

[16] Lozano, 134 S. Ct. at 1231.

[17] Black’s Law Dictionary

[18] Lozano, 134 S. Ct. at 1226.

[19] Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008).

[20] Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004).

[21] See 42 U.S.C. §11601 (1988).

[22] The courts of appeals in several countries including England, Canada, New Zealand, and Hong Kong have rejected the concept of a tolling rule. Brief for Respondent, Lozano v. Alvarez, 134 S. Ct. 1224, 44–50 (2014). In other international jurisdictions, equitable tolling has not yet been deliberated. Id. at 44.

[23] Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

[24] Id. at 1227–28.  

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