International child abduction in Brazil

A 1999 report by Prof. Nigel Lowe of the Cardiff University Centre for International Family Law Studies in the U.K. raised concerns about children not being returned to their place of habitual residence because of a misunderstanding of what the term 'habitual residence' meant (i.e., rather than referring to restoration of the status quo ante the abduction, abducting parents argue that it refers to the status quo and they are more likely to be able to argue this point if they can delay the judicial process long enough).

[7] The slowness of the Brazilian judicial process and the checks and balances built into the post-military-dictatorship Constitution of Brazil as a means of safeguarding human rights also create a long appeals process which means that once a child is abducted to Brazil it is likely that he/she will remain there in cases that the judges feel that this is the best solution for the child until they reach the res judicata.

In two cases, Brazilian judges refused returns to the United States, citing the "best interests of the child" in accordance with Article 227 of the Constitution of Brazil.

"[11] On October 19, 2010, the French MEP, Michele Striffler, tabled a question in the European Parliament on Brazil's refusal to abide by its international treaties in this regard: The Convention on the Civil Aspects of International Child Abduction, of 25 October 1980, known as the Hague Convention, seeks to guarantee the immediate return of children unlawfully removed or retained by one of their parents in a contracting State.

Furthermore, the Hague Convention lays down a simple and swift procedure for resolving the removal of minors outside their country of usual residence, without exhaustive examination of the dispute between the parents.

What measures does the Council intend to take to ensure that third countries, in particular Brazil, comply with the convention, with a view to putting an end to these unacceptable situations and securing the swift return of abducted children?

SEDH is required, therefore, to discover the whereabouts of the abducted child and prevent further harm by taking provisional measures, to secure a voluntary return or to bring about an amicable resolution of the issues, to provide information of a general character as to the law of their State in connection with the application of the convention, to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child, to make arrangements for organizing rights of access.

[13] SEDH is directed by Patricia de Teixera Lamego Soares, a law school graduate with a master's degree in International Affairs from George Washington University in the U.S.

According to a March 2009 report, Patricia Soares is adamant about keeping a low profile personally and for parents involved in international abduction cases.

She is described as working with a tight, highly focused team of five people and is "respected for the assurance with which she accomplishes delicate tasks and stays cool under pressure.

Brazilian family courts continue to show a willingness to consider evidence in order to determine custody but not relevant to the criteria to be applied in a Convention case, including looking at what solution is in the 'best interests' of the child.

Additionally, it is argued that in Brazil law enforcement appears to give lower priority to Convention cases because wrongful retention of a child is not a criminal offense under the Brazilian penal code.

[15] The Coordinator of SEDH visited the US Department of State for a full week in November 2009 to review long-standing cases involving the abduction of US children.

During this trip, she and Brazilian Embassy officials met with the parents of children kidnapped and taken to Brazil, NGOs, members of the US Congress and a federal judge who works on Hague Convention cases.

The country's low ranking was attributed to poor governance, weak institutions and excessive interference by private interests in the judicial process[17] The Brazilian judiciary is commonly viewed as unresponsive and has even been described as a 'black box' by President Luiz Inácio Lula da Silva[citation needed].

[20] Although there are provisions in place to ensure the formal independence of judges, and the broad functional and structural autonomy is guaranteed by the constitution, a 2009 report by Freedom House relates that judicial reform in Brazil has been slower than in other countries in Latin America because the judiciary uses its formal independence to resist change and stop investigations into judicial corruption.

[21] The National Justice Council (Portuguese:Conselho Nacional de Justiça) is currently the only external judicial control mechanism, but Transparency International suggests a potential lack of independence even in this body, since it is made up of judges.

In June 2010 it was reported that a constitutional amendment incorporating parental alienation syndrome into the Brazilian legal code would have a bearing on child custody cases.

[31] In 2001, a federal judge in Santos issued the first ever judgement in Brazil under the Hague Convention, calling for the return of a child to his habitual residence in Sweden.