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Introduction
The
Hague Convention on the Civil Aspects of International Child
Abduction was adopted on October 25, 1980, during the 14th Session
of the Hague Conference on Private International Law.
Brazil
acceded to the Convention on October 19, 1999, effective January 1,
2000. Decree No. 3413/00 promulgated the Convention in Brazil on
April 14, 2000. Other parties to the Convention have accepted the
accession of Brazil, and the Convention has gone into force between
Brazil and other 38 members. The United States of America accepted
the accession of Brazil to the Convention on September 29, 2003,
effective December 1, 2003.
I.
Domestic Laws and Regulations Implementing the Hague Convention
The
Central Authority for the Convention in Brazil is the Secretariat of
State on Human Rights (Secretaria
de Estado dos Direitos Humanos)
of the Ministry of Justice. Decree No. 3951/01, effective January 7,
2002, provides for the competence and powers of the Secretariat, and
it also creates the National Program for Cooperation on the Return
of Internationally Abducted Brazilian Children.
A.
Return Requested From Abroad
The
Central Authority has only administrative and informational
competence, as established by Decree 3951.
Brazilian Courts decide the cases of parental kidnapping and the
return and visitation schedules for abducted children.
The
application for the return of an abducted minor to Brazil must be
directed to the Brazilian Central Authority, which will, upon
receipt of the return application, analyze and verify all the
information and decide whether it complies with the requirements
provided for under the Convention.
Because
the activities of the Central Authority are informational and
administrative only, a lawyer will be necessary for the judicial
request, and the Central Authority must take the necessary measures
in order to facilitate public funded assistance to those in a need
of legal aid.
The
Central Authority must take the necessary precautions closely with
the Federal Police of the Ministry of Justice, through the division
of the International Criminal Police (Interpol), to assure the
location and the return of a minor illegally taken to Brazil.
B.
Return Requested from Brazil
If the
Central Authority receives an application, which meets all the
requirements under the Convention, from a requester parent, it will
send the return or visitation petition to the Central Authority of
the requested country, which will act under its own procedural
norms. Under the Convention, the courts of the requested country
must order the immediate return of the minor to his country of
origin.
According to Decree No. 3951/01, the Brazilian Central Authority
must take the necessary precautions, jointly with the Ministry of
the Foreign Affairs of Brazil and with the Federal Police, through
Interpol, for the safe return of Brazilian minors illegally taken
out of the country. There is no central police file to report cases
of missing children in Brazil. State Police (at the regional level)
and Interpol (at the international level) are the responsible
authorities to take actions in cases involving missing persons. If
there is no substantial proof that a minor has been taken abroad
from his residence, the abduction must first be reported at the
regional level (State Police), and it will be reported
internationally (to Interpol), only a year later. If such proof
exists, the case is directly reported to Interpol.
Brazil
has also become a member to the Inter-American Convention on
International Return of Children, adopted in Montevideo, Uruguay, on
July 15, 1989, and ratified by Brazil
on May 3, 1994.
The
purpose of this Convention is to secure the safe and prompt return
of a child,
whose
permanent residence is in one of the Member countries17
and who has been wrongfully removed from one Member country to
another or who has been lawfully removed, but has been wrongfully
retained. It also provides for the enforcement of visitation and
custody rights.
In
addition, article 34 of the Convention states that in cases
involving Members of the Organization of American States (OAS) that
are also Members to this Convention and to the Hague Convention on
the Civil Aspects of International Child Abduction, this Convention
must prevail, unless stated otherwise through bilateral agreements
between the parties.
II. Domestic Laws Regarding Child Abduction and Parental Visitation
The
Federal Constitution of Brazil19
and Law No. 8069/90
(the Statute of Children and Adolescents (ECA)) are the main pieces
of legislation regarding the protection of children's rights in
Brazil. The Constitution provides that one of the purposes of the
social assistance in the country is to protect underprivileged
children and adolescents,
and it also sets forth that the protection of children must occur
through government incentives, in accordance with the law.
The ECA
regularizes the constitutional rules on the guarantee of children's
rights in the country, emphasizing the basic rights of children23
and adolescents,
such as the right to be raised and educated among the child's family
(and in some cases, in a substitute family) and the right to have
the support of both parents for the custody and education of their
young child.
A.
Child Abduction
Under
the Brazilian Penal Code, the punishment for any person who takes
and keeps a minor
from the control of his parents or guardian, or from any other
person in charge of him, is imprisonment from 2 months to 2 years.
Any parent who takes and keeps the child away of the control of the
other parent, who has been judicially assigned the custody of the
child, is also committing a crime.
The judge may, however, decide not to apply the penalties provided
for in this article in case the child has been returned to his
residence with no evidence of bad treatment during the period of
abduction.
Law No.
8242/91
created the Conselho Nacional dos Direitos da Crianca e do
Adolescente (CONANDA)
in
an effort to increase the protection of children's rights and fight
child abduction in Brazil. The ECA does not provide for a
classification of missing children categories, and according to
Interpol,
cases of parental abductions are considered in Brazil to be cases of
missing children, and therefore, statistics are sometimes
misleading, because other cases of missing children, such as
abduction by unknown persons, may be included in the available data
in Brazil. The Ministry of Justice35
reports that although it is very difficult to predict the real
number of missing persons
in Brazil, it estimates that there are 10,000 cases annually
involving missing children and adolescents.
B.
Parental Visitation
The
Brazilian Civil Code
and the ECA38
establishes that minors are under the supervision of their families
(paternal power), and that both the father and mother may exercise
such power under equal conditions. Usually a custody agreement is
reached at the time of the separation of the parents. However, in
case of disagreement between the parents, both the father and mother
may turn to the proper judicial authority to solve the disagreement,
in which case the best interest of the child must prevail, and the
physical custody of the minor, assigned to one or both parents, may
be determined by the competent judge.
The
Civil Code, in article 1584, states that if no agreement was reached
with regard to the custody of the minor, the judge must determine
the custody rights, taking into consideration the person who will be
able to provide for the best environment and conditions for the
development of the child. The visitation rights may be modified at
any time by the competent judge, as long as there is a well-founded
judicial act, and the Office of the Attorney General has been heard.
Such a modification must represent the best interest of the child,
and it must account for the best environment for the social and
physical development of the minor as well.
III. Court System and Structure - Courts Handling the Hague
Convention
Brazil
is a federated republic, with a civil law system, and according to
article 92 of the Constitution, its judicial powers are vested in
the Federal Supreme Court (Supremo
Tribunal Federal -(STF)),
in the Superior Court of Justice (Superior
Tribunal de Justica
(STJ)),
in the Federal Regional Courts of second and first instance, as well
as in the Special Courts (Labor, Electoral and Military) of second
and first instance. The sole paragraph of this same article states
that the STF and the STJ have their seat in Brasilia (Federal
Capital) and their jurisdictions over the entire Brazilian
territory.
The
Constitution defines the competency of the Federal Courts in
articles 106 - 110. In the first instance, the federal judges act in
the Judicial Sections (Secoes
Judiciarias),
with seats in the capital of each state of Brazil, as well as in
some states, the Federal Courts of first instance (Varas
Federais),
with jurisdiction over specific municipalities. The second instance,
with 5 Federal Regional Tribunals (Tribunais
Regionais Federais
(TRFs)),
located in Brasilia, DF; Rio de Janeiro, RJ; Sao Paulo, SP; Porto
Alegre, RS; and Recife, PE, oversees the first instance.
When
Brazil is the requested country under the Convention, and there is
no voluntary return of the minor, the competent courts for the
return proceedings are the Federal Regional Courts of first and
second instance. Before Brazil became a party to the Convention,
judicial petitions were decided by the ordinary State Courts (Family
Courts) in Brazil.
In 2001,
the judge of the Federal Court of Santos granted the first court
decision
in Brazil under the Convention that called for the return of a child
to his habitual residence in Sweden, making it a leading case in the
matter in the country. The parents of the child lived in Brazil
until January of 1996, and the child was born in September 1991 in
the city of Santos, Brazil. The couple separated in 1999 under the
laws of Sweden, their country of residence at the time. The
alternate custody rights of the child were granted to both parents
under the Swedish legislation. In 2000, mother and the 9-year old
child traveled to Brazil with authorization from the father.
However, the mother retained the child in Brazil after the
expiration of the authorized travel period, ignoring the custody
decision already established by the Swedish court. The father of the
child filed a judicial return petition before the Brazilian court on
the grounds of the Convention, informing the Brazilian judge of the
custody decision determined by the competent court in Sweden.
The
Brazilian federal judge granted a verdict favorable to the return of
the child to the country of his habitual residence (at the time of
his removal), and the decision considered that the retention of the
child in Brazil by his mother was illegal, applying articles 3 and 4
of the Convention. The child returned to Sweden on the same day that
the federal judge issued the court order to return the child (June
23, 2001).
No
records of appellate remedies have been found in this case, and no
records of other cases in the appellate level have been found at
this time.
IV. Law Enforcement System
To
locate children and to secure and enforce orders, the Central
Authority, as well as the Judicial Courts, have requested the
assistance of the local police
and Interpol. Both play an important role in the prevention of child
abduction and the protection of children's rights.
In an
effort to prevent international child abduction, the Brazilian
government requires valid documentation to identify the minors and
the persons who are accompanying them in and out of the country, as
well as judicial authorization under special circumstances.
The ECA
emphasizes that only when the minor is accompanied by both parents,
or by the guardian,
or if traveling with one of the parents, with the express
authorization of the other (stated in a document that holds the
official signature of the absent parent), the authorization to
travel abroad may be granted. Also, a minor that was born in the
national territory of Brazil may only leave the country with express
judicial authorization, if in company of a foreign resident or a
person domiciled abroad.
If
Brazilian judicial courts issue a prohibition for the child or
adolescent to leave the country, all cross-border authorities are
advised of such a determination.
V.
Legal Assistance Programs
The
Constitution of Brazil establishes that "the state shall provide
full and free-of-charge legal assistance to all who prove
insufficiency of funds"
and that "the Public Legal Defense is an essential institution to
the jurisdictional function of the state and is responsible for the
judicial guidance and the defense, in all levels, of the needy,
under the terms of article 5, LXXIV."
Also, according to the ECA, article 206 states that "full and
gratuitous judicial assistance will be rendered to all in need of
it," and article 111.IV states that the adolescents are ensured,
among other things, "gratuitous and full legal assistance to those
in need, according to the terms of the law. "
Law No.
1060/5056
establishes rules for the concession of judicial assistance to those
in need in Brazil. The Law determines in article 4 that legal
assistance must be provided for the person who demonstrates the need
for legal aid simply through an assertion in the initial petition
that he cannot afford to pay for the legal expenses and lawyer's
fees without affecting the financial ability to support his own
family. Under the Law, those who affirm such a condition, until it
is proven contrary, are considered to be under this needy status.
Article 5 establishes that the judge must decide the legal aid
request within a period of 72 hours, and if the state does not have
judicial assistance available, the Brazilian Bar Association
(through its regional sections) will be responsible and designated
by the judge to provide for such legal aid.
The
Federal Court Council (Conselho
da Justica Federal - CJF)
designated the gratuitous legal assistance in the Federal Courts of
first instance through Approval No. 210/81. The Approval determines
that the Direction of each Judicial Section (Secao
Judiciaria)
of the Federal Courts organizes the lists of lawyers annually for
each respective section of the Brazilian Bar Association to provide
pro bono services to needy persons.
The
Brazilian Bar Association and the State of Brazil provide for
gratuitous legal assistance to those in need of it, and such aid may
be provided for any type of legal question or judicial battle, as
long as proof of financial necessity is demonstrated. For instance,
the Brazilian Bar Association, Sao Paulo Section, has a Legal
Assistance Committee
that may be reached through assistencia.judiciaria@oabsp.org. br,
and has a comprehensive set of information on the issue, including
legislation, and other assistance programs available through it.
It
appears that there is no current partnership or agreement available
between the Central Authority and any other institution in Brazil
with regard to legal assistance programs at this time. However,
under its administrative and informative roles, the Central
Authority may promptly direct interested persons to the available
legal assistance sources in the country.
A.
Information Resources
There is
no national system in Brazil that supports parents in their search
for their missing children. There are, however, visible government
and private-oriented efforts on the matter.
There is
a Federal Government website, where official placement information
of missing children is possible, which is later submitted to the
Specialized State Police Departments in the country. The Sector of
Missing Kids (Setor
de Criancas e Adolescentes Desaparecidos),
a service of the State Secretariat of Social Assistance and
Development of the State of Sao Paulo,
in
partnership with
ComputerAssociates do Brasil (CA),
focuses on family reintegration of missing children, as well as
provides for information and parental orientation through
specialized professionals to prevent child abduction. The Sector is
also structured to provide parents of missing children with
digitally enhanced photos that show how their child would physically
age, in order to assist in the search. The website works on an
integrated basis with Missing Kids websites in more than 10
countries, and it receives, on a daily basis, more than 2 million
visits.
The
State Secretariat of the Social Action (Secretaria
do Estado de Acao Social
(SEAS))
of the Government of the Federal District of Brazil maintains a
service called
SOS Crianca,
which functions 24 hours a day, 7 days a week through a hot line
(61) 346-1407 that receives information on alleged cases of
children's rights violations in the Federal District. The
SOS Crianca
receives
around 800 calls per month, including around 5 missing children
calls per month.
Non-profit organizations also play an important role as a
complementary source in the fight against violation of children's
rights. NGOs, such as
Mmes. da Se,
located in the city of Sao Paulo, have been dedicated to fighting
child abduction for many years, Specifically, there is the Hague
Convention Center for Brazil (Centro
da Convencao de Haia -Brasil),
a website that examines the application and enforcement of the Hague
Convention on the Civil Aspects of International Child Abduction in
the country. There is substantial material on this issue, including
cases and studies, as well as local and international legislation on
the subject that are available in Portuguese and, in some cases, in
English as well.
There is
also an international peace organization called Children in Brazil (Criancas
no Brasil)
with offices in Brazil and in the United States, created to assist
parents of American abducted children taken from their habitual
residence to Brazil. All the materials on their website are
available in Portuguese
and English, and it discloses pictures of missing children to the
public. Upon special request, it may also provide assistance to
parents of non-American children abducted to Brazil.
VI. Conclusion
Local
legislation, judicial, and administrative authorities, as well as
government and private funded organizations, are demonstrating
visible support of the terms of the Convention, which is surely an
example of international protection of children's welfare. Brazil
appears to be implementing the Convention correctly; it is, however,
a fairly new member to the Convention, and it might be, perhaps, too
soon to draw any further conclusions on the outcome of the
application of the Convention in the country.
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