International child abduction in Brazil and the legitimacy of the child’s voice
May 29th, 2021, Cassio Namur, partner at Tortoro, Madureira & Ragazzi Advogados. President elect of the Asociación Internacional de Juristas de Derecho de Família (AIJUDEFA). Director of International Relations of Instituto dos Advogados de São Paulo (IASP). First Deputy Director of International Relations of the Instituto Brasileiro de Direito de Família (IBDFAM)
Brazil has a broad legislative system that supposedly protects children and adolescents
The child abduction, usually committed by his or her parents, is a recurring theme around the world and does not escape the supervision of Brazilian authorities.
Brazil has an extensive legislative system that is supposed to protect children and adolescents. Proof of this can be found in the Federal Constitution, which, in article 227 in the “Chapter VII – Family, Children, Adolescents, Youth and the Elderly”, states
“Art. 227: It is the duty of the family, society in general and the Government to ensure, with absolute priority, the enforcement, for children and young people, of the right to life, health, food, education, leisure, professionalization, culture, dignity, respect, freedom and family and community life, as well as keeping them safe from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression”.
According to the Federal Constitution, the care of children and young people is a duty that falls on everyone, not just the family, including the State and other citizens, who must ensure that his or her rights are observed, and that custody provisions and other related prerogatives are fulfilled.
At this point it is worth remembering the existence of the excellent legal mechanisms in Brazil to protect the people referred to in this article. In particular, I highlight the Statute of the Child and Adolescent, Law n° 8.069, of 07/13/1990 (ECA), updated over the years, one of the most comprehensive in the world. Having the constitutional guidelines as a parameter, the ECA established norms with this intention in its articles 3 and 4:
“Art. 3 Children and adolescents enjoy all the fundamental rights inherent to a human being, without prejudice to the full protection referred to in this Law, ensuring, by law or by other means, all opportunities and facilities in order to enable his or her physical, mental, moral, spiritual, and social development, in conditions of freedom and dignity/free and dignified conditions.
Paragraph One. The rights set forth in this Law apply to all children and adolescents, without discrimination on the basis of birth, family status, age, sex, race, ethnicity or color, religion or belief, disability, personal development and learning condition, economic condition, social environment, region and place of residence or other condition that differentiates individuals, families or the community in which they live.”
“Art 4 It is the duty of the family, the community, society in general and the public authorities to ensure, with absolute priority, the realization of the rights to life, health, food, education, sport, leisure, professionalization, culture, dignity, respect, freedom and family and community life.
Paragraph One. The priority guarantee comprises:
- a) the primacy of receiving protection and assistance in all circumstances;
- b) precedence of care in public services or services of public relevance;
- c) preference in the formulation and implementation of public social policies;
- d) privileged allocation of public resources in areas related to the protection of children and young people.”
Given this scenario, it is possible to conclude – from a legal standpoint – that the national rules are complete, comprehensive and consistent with the country’s reality.
In this sense, the legal provisions mentioned in the Statute are intended to reproduce not only the Federal Constitution, but also what is provided for in the United Nations Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20/11/1989, ratified by Brazil on 01/26/1990, through Legislative Decree no. 28 of 9/14/1990, and promulgated by Presidential Decree no. 99.710 of 11/21/1990. All this compilation that I recall here already shows Brazil’s concern in attempting to meet the interests of the vulnerable people in question.
But this is a brief introduction to get into the theme mentioned in the title: international kidnapping of children and adolescents. According to the Hague Convention #28 of 1980, in force abroad since 12/01/1983, this concept is defined by the Civil Aspects of International Child Abduction as the wrongful transfer or retention in a country other than the one in which the child was habitually resident, without the consent of one of the parents, legal guardians or judicial authorization.
Brazil ratified the Convention many years after its creation. The deposit of the instrument of accession occurred on 10/19/1999 and the Presidential Decree of Promulgation No. 3413 is from 4/14/2000.
The aforementioned Convention covers children and adolescents, since in its article 4 it provides protection for the age group of up to 16 years. It is worth remembering that the Brazilian legal description establishes citizens with up to 12 years of age as children and those who are between 12 and 18 years old as adolescents, as prescribed in art. 2 of the ECA. I emphasize that from this excerpt onwards, I will use the word “children” to refer to both.
The two main objectives of the Hague Agreement are set out in Article 1: to ensure the prompt return of vulnerable persons wrongfully transferred to or retained in any Contracting State to the Convention, and to enforce between Contracting States the rights of custody and access.
To resolve this dramatic situation and to request the return of the child to his or her habitual residence or to correct a case of retention, the event must have occurred less than 1 year ago (Article 12 of the Convention). For information, I occasionally receive queries from parents seeking news about their “abducted” children after this period, which unfortunately means that the Convention can no longer be invoked and applied. In these cases, parents will have to resort to agreements or seek the Judiciary, through ordinary channels, in order to assert their rights and those of their descendants.
Restitution needs to be immediate, with the judicial or administrative authorities having to make a decision within 6 weeks of the date the application was lodged (Article 11), which means resolution without delay, as provided for in Article 12 of the Convention.
If this deadline is exceeded, which is a recurring occurrence, the Central Authority needs to justify the reasons for the delay.
There are numerous reasons why international children abduction occurs, such as domestic, physical or psychological violence. Or even situations of war, and lately even acts of terrorism can be considered as justification in certain situations. However, in a considerable number of cases, parents or legal guardians do no longer reach a consensus on living together with their spouse or partner.
Here it is important to highlight the seriousness of preventing the child from having contact with one of the parents or the person responsible for his/her custody and to guarantee at least the right to this coexistence, so as not to use the expression “visitation”. Many parents or guardians do this, perhaps unaware of the consequences that such action can cause to their children or children in their care. To remove them from their home, social and school surroundings is a very extreme and harmful decision. And there can be no complacent attitude to that choice.
It is already common sense for children to live with his or her parents or guardians as necessary to better shape the personality of adults, of course with exceptions in cases where cohabitation is impossible in such a way as to harm the development of the vulnerable person. To this end, the Convention is an effective vehicle among the acceding countries. To this end, the Convention is an effective vehicle between the adhering countries. Article 6 of the Hague regulation states that each Contracting State shall designate a Central Authority responsible for the performance of its obligations under the Hague Regulation. It is up to the latter to make all arrangements for the child to return as soon as possible to the country of his or her home of origin or in order to establish the right of visit abruptly disrespected.
To make this possible, there is the Central Authority which is a national internal body responsible for legal cooperation with other states and foreign organizations. It receives, analyses, adapts, transmits and follows up requests for international collaboration, and represents the requesting State – including in court – if the requirements for this are met. It is certain, however, that the final decision is the responsibility of the Natural Judge, the Court where the child is habitually resident.
In Brazil, the processing of cases of child abduction or re-establishment of custody or visitation rights is currently the responsibility of the Federal Central Administrative Authority (ACAF). It is a body linked to the Ministry of Justice and Public Security, through the National Secretariat of Justice and under the management of the Department of Asset Recovery and International Legal Cooperation.
When these processes are brought to court, the Office of the Attorney General of the Union (AGU) will be the body that represents the federal government in court and will look after the interests of the foreign state requesting legal cooperation. Its members are extremely well-prepared and qualified, so that Brazil can provide an enormous high-quality and competent service to foreign Claimants without any procedural costs.
Brazil has not made a reservation regarding the expenses of the participation of a lawyer, legal counsel or regarding the payment of court costs, as provided in article 42, when referring to article 26 of the Convention. As everyone knows, the process will take place in the Federal Court, since jurisdiction is defined in Article 109, item III, of the Constitution, when the causes are based on a Union treaty or contract with a foreign State or international body.
The fundamental, and in my point determining, point, or not, for the return of the child to his or her country of origin or the re-establishment of the right to custody/visitation is subject to the hearing of the child by the Judge. Every child is guaranteed the fundamental right to live with both parents. Demanding that the choice be made between one of their parents to the detriment of the other is perhaps the most serious aggression that can be perpetrated against their best interests. It is more than a duty to listen, the child has the right to be heard. Thus, it is worth emphasizing the provisions of Article 12 of the UN Convention on the Rights of the Child, which states:
“Art. 12 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”.
Thus, guaranteeing for the most interested party, the opportunity to have their report considered in any judicial or administrative process and without ever requesting a supposed preference as to which parent with whom they should live. The hearing of the child, should psychological maturity recommend it, must be deliberated with the strict purpose of defining the arrangements for his or her return to the State of habitual residence, as well as the measures to be provisionally adopted to regulate the coexistence with both parents or guardians, until the cognizance of the case by the natural judge becomes viable.
In this sense, Pietro Perlingieri teaches us that “the interest of the minor is identified as the achievement of personal autonomy and judgment and can also be materialized in the possibility of expressing alternative choices and proposals that may have a bearing on the most diverse sectors, from cultural to political and affective interests, provided that their psychophysical integrity and the overall growth of their personality are safeguarded”¹.
In Brazil, the hearing of the child has a complementary character and normally takes place from the age of 12. In other jurisdictions, such as Spain, for example, it is permitted from the age of 8 years. Still, the important thing is to enable the opportunity to be heard in any judicial or administrative hearing process.
To the extent that Article 20 of the Convention states that:
“Art. 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”.
It is noted, therefore, that the reports can also be a defense argument for the non-transfer to the country of habitual residence and, in this case, it is even necessary for the child to eventually express her/his objection to return. The Convention does not provide for justifications by children based on, for example, issues such as adaptation to school or other arguments referring to their alleged well-being. The objection must deal with relevant issues, such as parental alienation, continuous physical or psychological aggression, committed by the guardians or parents who remained in the place of their habitual residence.
In these cases, when there is no agreement, it will be up to the Central Authority to request the judge to allow the child to speak and the judge, armed with information about the situation of that specific case, has the power to deliberate, according to the best interest of the child. But caution is needed to avoid confusing the wishes of the vulnerable person, considering that they are not always mature enough to decide. From then on, the work of the judge’s professional assistants, such as psychologists, makes all the difference and should be used. It is also recommended that the hearing be held in a neutral environment, to avoid any kind of trauma, in accordance with the procedural rules of the national legislation, as well as by a technically qualified professional, to comply with the standards in the production of psychological expertise.
According to ACAF’s data (restricted to cases where it was sued), in 2020 alone – the first year of the COVID-19 pandemic – 103 cases were registered (66 active and 37 passive), including abductions and visitations. Among this total, 90 cases of abduction were reported (57 active and 33 passive), that is, Brazil demanded more as a requesting country. Regarding the request for visitation, there were 13 cases (9 active and 4 passive). In this same year, 122 cases were also concluded: 96 abduction cases (66 active and 30 passive) and 26 requests for visitation (18 active and 8 passive).
Between 2016 and 2019, there were 509 cases initiated (2016: 102/ 2017: 109/ 2018: 124 and 2019: 174), an average of just over 127 per year. However, it is important to note that in almost all years the active cases outnumbered the passive ones, except in 2016. Regarding those closed between 2016 and 2020, there were 402 (2016: 122/ 2017: 73/2018: 88 and 2019: 119), presenting on average 100 cases per year, lower than in 2020.
It is strange that in passive cases in the periods mentioned, with the exception of 2019, the majority ended by agreement or voluntary act, to the detriment of judicial decision. All these figures also show that situations regarding international child abduction are significantly low, considering that in 2019 it was counted by the Judiciary among the most demanded matters in the first degree of jurisdiction: 1,135,599 cases (3.79% of the total number of cases), in the area of Civil Law – Family/Food, according to the report “Justice in Numbers 2020”2, of the National Council of Justice (CNJ).
Given all the data and information presented in this article, it is possible to state that the legal provision exists, since Brazil ratified and adhered to the International Convention on the Rights of the Child. And it is obvious that we need to respect and comply with these rules also to clarify to the world that the country has the child’s best interests at heart. But care is needed, because most of the time the child’s voice – be it that of someone in infancy or adolescence – is not given due importance so that the magistrate can fully form his conviction and make the best decision for the future of a human being who is still in a formative stage and who deserves a promising future.