International child abduction in Brazil comprises cases in which the removal of a child by one of the joint holders of custody or non-custodial or contested parents to Brazil in contravention of other laws of other countries and/or the desires of other custody claimants. The phenomenon of international child abduction is defined in international law and legislated on by the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force in Brazil on January 1, 2000, and aims to trace abducted children, secure their prompt return to the country of habitual residence and organize or secure effective rights of access.Status table of the Hague Convention on the Civil Aspects of International Child Abduction In 2010 Brazil was accused by the US State Department of being non-compliant with the Hague Convention.2010 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction
The International Centre for Missing & Exploited Children (ICMEC), a nonprofit global organization that combats child sexual exploitation, child pornography, and child abduction, has a regional presence in Brazil."Leading Brazilian Bank Joins International Fight Against Child Pornography; Banco Bradesco is the First Institution in the Latin America Region to Join the Financial Coalition Against Child Pornography" , WLOX 13, November 12, 2008
Brazilian non-compliance with the Hague Convention
Articles 12 and 13
Accusations that Brazil does not comply with the Hague Convention hinge on conflicting interpretations of Article 12 and Article 13 of the convention. According to Article 12, "The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year […] shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment,"Convention of 25 October 1980 on the Civil Aspects of International Child Abduction It is the second part of this article that is used as a defence in all Hague disputes in Brazil and one of the reasons why they are held up for so long. Brazilian federal courts routinely accept evidence from Brazilian abducting parents to the effect that the abducted child has become settled in his/her new environment and the U.S. State Department has claimed that Brazilian Courts erroneously treat Hague cases as custody disputes, unnecessarily delaying cases and demonstrating an unfair bias toward Brazilian citizens, especially mothers.US State Department 2009 Hague Convention Compliance Report on Brazil. In addition to this, Article 13 of the Convention states, "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views," while Article 13(b) states that children should not be returned to their habitual residence if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Brazilian abducting parents often present evidence to the court in the form of statements from the abducted child to the effect that they wish to stay 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). Lowe states, "courts need also to consider any undue parental influence on the child, either through deliberate indoctrination by the abducting parent or simply by the natural inclination of many children to support a present parent against an absent parent." The report stresses that abducted children's wishes should not override the spirit and the intent of the convention and implies that the part of Article 13 that affirm "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." should be considered null and void by making that part of the Article not have any use, because for children to be considered to have the maturity to decide where they want to be they should have reached the age of 16 - the cut-off point for Hague Convention cases.Lowe, N., and Meyer, C. (1999), International Forum on Parental Child Abduction: Hague Convention Action Agenda, September 15–16, 1998
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. The hierarchical position of international conventions in the Brazilian legal system is less than the Constitution of Brazil and can not contradict it, which means that in cases where it is alleged that the convention is contrary to a constitutional principle, the convention may not be applied in whole.Brazil Constitution: translated, updated and commented ("sic")
The U.S. Department of State 2008 Report on Compliance with the Hague Convention says: "Brazil continued to demonstrate patterns of noncompliance with the Convention in its judicial performance. The USCA notes several instances during FY 2007 in which Brazilian courts treated Convention cases as custody decisions, rather than applying the principles of wrongful removal or retention laid out in the Convention. 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. These decisions contradict the convention, because the concept in the Brazilian legal system of "best Interests of the Child" is broader than the narrow concept described in the convention, as the Preamble of the Convention declares that the interest of children is attained through their return to their country of habitual residence. In addition, the USCA notes that judges in some cases continued to demonstrate a bias towards mothers and towards Brazilian citizens. Further, the judicial process is excessively lengthy, with cases going on well beyond the six weeks mandated by the convention."
The U.S. Department of State 2009 Report on Compliance with the Hague Convention states: "In FY 2008, Brazil demonstrated patterns of noncompliance with the Convention in the areas of Central Authority performance and judicial performance. The Brazilian courts continue to show a troubling trend of treating Convention cases as custody decisions, and often deny Convention applications upon finding that the children have become "adapted to Brazilian culture." It takes many months before a court receives a case to analyze and many more months before a court issues a decision. Brazil's courts exhibit widespread patterns of bias towards Brazilian mothers in Convention cases. Brazilian courts continue to be amenable to considering evidence relevant to custody determinations but not relevant to the criteria to be applied in a Convention case."
The U.S. Department of State 2010 Report on Compliance with the Hague Convention states: "During the reporting period, the United States experienced continued problems with Brazil's compliance with the Convention. As a result, the USCA finds Brazil not compliant with the Convention in FY 2009. Continued compliance failures result from significant delays within the Brazilian judiciary, which continued to handle applications for return under the Convention as routine custody cases. Article 16 of the Convention specifically prohibits judges from considering the merits of the custody dispute between the parents."2010 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction
Complaints by European countries 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. It also seeks to ensure that the custody, visitation and accommodation rights of children in contracting States are respected. Under Article 3, the removal abroad of a child by a parent is considered unlawful when it takes place in violation of the custody rights granted to the other parent, or to any institution or body, under the laws of the State in which the child normally resided before being removed. 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. Rulings on the custody of such children can only be issued by a judge in the child's usual place of residence Moreover, a best practice guide has been drawn up by the Hague Permanent Office (responsible for monitoring implementation of the convention), to avoid disparities in the scope and level of services offered by the various central authorities entrusted with the task of enforcing the convention. Nevertheless, the legal systems in numerous States which have signed the Hague Convention (in particular the Brazilian legal authorities) continue to consider these cases as child custody disputes, in flagrant contravention of the letter and spirit of the convention, thereby significantly delaying the implementation of its provisions and the resolution of disputes. It should be borne in mind that these displaced children are the main victims in such situations. Their prolonged removal has serious psychological repercussions which may dramatically affect their future lives. There are many unresolved cases involving European children who have been taken to third countries which are signatories to the convention (particularly Brazil) and whose return is being obstructed by poor application of the convention. 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?European Parliamentary Questions - 19 October 2010
The Brazilian Central Authority The Special Secretariat for Human Rights (Portuguese:Secretaria Especial dos Direitos Humanos, or "SEDH"), which is part of the Brazilian Ministry of Justice, has been designated as the Brazilian central authority as per Article 6 of the Hague Convention, making it responsible for the operation of the Convention in Brazil. Article 7 of the Convention states, "Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of