The long and winding lawsuit: how procedural slowness leads Brazil to breaching the 1980 Hague Convention and what to do to change the path we are on

By Rodrigo Meira

When transnational couples split, one of the parents wants to reestablish the status quo ante. But now there is a child. Rodrigo Meira brings to light this problem in Brazil and delivered the first research that has delved into the court files, with a view to understanding international abduction in Brazil. The author worked at the Brazilian Central Authority and is concluding his PhD in International Law, in which he examines Brazilian compliance, analyzing cases from 2002 to 2022 and interviewing other professionals who deal everyday with the problem. Meira shows what lies behind this procedural slowness, critically analyzing the culture of biased interpretation by procedural means. He also suggests good points for future changes in Brazilian Law. A compelling bestseller for students, undergraduate and graduate, treating core issues from a lawyer?s perspective. Rather than responding to child abduction with strict legal proceedings, the work argues that national solutions must be met, based on previous international experience. The Long and Winding Lawsuit is also a vade mecum for practitioners desiring a solid footing to make further enquiries on international child abduction in Brazil. This eye-opening book overlaps the lack of information on international abduction and explains the resilience of Brazilian Judiciary to comply with the conventional terms, suggesting what can be done to change this profile.

• Language: English
• Publisher: Editora Dialética
• Release date: Jul 19, 2023
• ISBN: 9786525279909

Book preview

Introduction

In the middle of the 20th century, especially after the end of the Second World War (1939-1945), the concern for the rights of the child illegally removed to another country was poorly debated in the context of international relations, but the stability of the period provided the opportunity to discuss private international law procedures best suited to combat the international child abduction. There was, then, a consensus that such a situation would be a private matter within families, so there were no legal means for states to curb this practice worldwide.

From the 1960s onwards, this consensus began to deteriorate. The first movements took place in the context of the Hague Convention of 1961 on the Protection of Children, when the international abduction was regarded as an offense to be combated, at which time the concept of habitual residence was built exactly for this purpose. As few countries have joined - only eight -, the effects of the Convention were limited.

It was perceived that few states had laws capable of reducing, hindering or even preventing the international child abduction, which encouraged the perpetrators to return to their countries of origin, where they would find - as in fact they did - legislation that was favorable by reason of their nationality. The perplexity of scholars has resulted in political initiatives to combat such international illegality.

From the 1970s onwards, studies at The Hague Conference have begun to deepen their knowledge of child international abduction, coining in 1976 the term legal kidnapping. That term was contradictory and then abandoned due to the study by First Secretary Adair Dyer (Dyer Report), whose sociological and legal analysis brought more specific elements to the characterization of the phenomenon no longer as kidnapping, but adopting the term subtraction (abduction).

A Special Committee met to discuss the conclusions of the Dyer Report in 1979, drawing up a proposal for a prompt return mechanism, with limited exceptions. This proposal produced the first outline of what would become the 1980 Hague Convention on the Civil Aspects of International Child Abduction (henceforth the Hague Convention). At that time, Professor Elisa Pérez-Vera produced her famous report to explain the operation of the Convention for States in a didactic manner. At the fourteenth session of the Hague Conference in 1980, the Convention was finally adopted.

It took Brazil two decades to enter the Hague Convention in order to combat the international abduction of children. Unlike Japan, which delayed its entry into the Convention because it sought the adaptation of the national institutions involved, with training of public servants and actors involved, Brazil remained inert until 1999. The exact reasons for this neglect are not yet clear, but there are indications that there was no political will to participate effectively in the Hague Conference.

After approval in the National Congress, on September 15th, 1999, by means of Legislative Decree no. 79, Decree no. 3413 was published on April 14th, 2000, confirming Brazil’s adherence, with the exception of article 24 (translation of documents). The following year, the Central Administrative Federal Authority (ACAF), the Brazilian Central Authority (BCA) was established as the State Secretariat of Human Rights at the Presidency of the Republic, then transferred to the Ministry of Justice in 2016.

From 2000 to the present date, it is undeniable that the application of the Hague Convention in Brazil has undergone adaptations, evolving institutionally through error and trial. Federal jurisprudence has gradually changed, according to the understanding of the higher courts, and not by an institutional consensus on how it should work. The debates only gained importance when the media disclosed the agony of the actors in participating in two certain judicial disputes: the Sean Goldman case and the Lanes case.

These specific cases put Brazil in the spotlight. They will be dealt with in detail throughout this book: the Lanes case (Argentina) and the Sean Goldman case (United States). After all, these cases are paradigmatic of the application of the Hague Convention in Brazil, highlighting the main obstacle for the country to comply with its international obligations: the procedural slowness.

Since Constitutional Amendment 45/2004, the reasonable duration of the process has been a central theme in the debate on the reform of the Judiciary. Francesco Carnelutti¹ admitted that the slogan of swift and secure justice contains an intrinsic contradiction, because swift justice is not secure, and secure justice is not swift. It appears that procedural slowness becomes an essential element in the course of the dispute, while the 1980 Hague Convention requires only 6 weeks (Article 11) to complete the request for return, culminating in the prompt return mechanism.

Due to the above mentioned, it can be affirmed that the present research seeks to contribute so that the 1980 Hague Convention and all the interested parties have access to the main Brazilian problems, since there were few specific works to delineate how Brazil operates and judges the return requests received. As this scarcity of information is, perhaps, one of the greatest obstacles to the harmonization of the Hague Convention in the world, this book intends to discuss how to overcome this obstacle in Brazil.

In this sense, 30 practical cases have been selected to demonstrate how the Judiciary has decided requests for search, seizure and return of children. As a complement to these analyses, one cannot fail to mention two researches relevant to this objective, both published in 2010: the master’s dissertation of Natália Camba Martins², former General Coordinator of ACAF, and the doctoral thesis of Teófilo Antonio Miguel Filho³, federal liasion judge and Hague Coordinator for the TRF-2, in Rio de Janeiro.

Martins dealt specifically with the exceptions to the prompt return mechanism, making a jurisprudential and doctrinal evaluation of these exceptions at INCADAT and the Brazilian Judiciary, in order to compare these views. Miguel Filho did a more in-depth and broader study on the constitutional and legal issues that involve social and legal relations in the international abduction of children.

The two studies will be widely used as a bibliographic review, although the central theme of this work is transversal to both of them. One of the objectives of this book is to evaluate whether the consequences of procedural slowness influence the judges’ final decision on the merits of the request for international return of children. For this purpose, a concept was developed about the phenomenon that reflects this slowness in the daily life of the abducted children: the paradox of the adapted child.

If and how often this phenomenon is present in the trials of the Federal Justice of Brazil is the problem of this book. In addition to this Introduction, chapter 1 explains how the request for prompt return based on the 1980 Hague Convention on the Civil Aspects of International Child Abduction works in Brazil, crossing the procedural path of this request from abroad until the final decision on the merits, when there is one.

In chapter 2, a definition of the studied phenomenon, which is the paradox of the adapted child, is elaborated. In detail, this characterization is clarified through the analysis of concrete cases and how the Federal Judiciary responded to these requests. In more detail, we will analyze how time has influenced the judicial decisions, also through the interpretation of the principle of best interests of the child and, finally, the analysis of the Lanes and Sean Goldman cases, the great paradigms of this paradox of the adapted child, in face of the abundant public documentation for these cases. Finally, how often the argument of the adapted child paradox in the available judgments is raised.

In chapter 3, we critically analyze Brazil’s evolution in compliance: from the Draft Bill that was developed by members of the Permanent Commission on the Child International Abduction to the Resolution CNJ 449/2022. Despite bringing interesting innovations for the application of the 1980 Hague Convention in Brazil, aiming at standardization, neither of the proposals has approached on sensitive and current issues, such as parental alienation, domestic violence or the right of children to be heard in these cases.

The greatest difficulty of this research was to bring to light the analysis of judicial sentences protected under the cloak of justice secrecy. As exposed in the official application to ACAF, when the request for access to information was submitted, via the Access to Information Act, the main objective was obtaining knowledge of the applied law, without using personal data of those involved, especially children.

In the first request, made on December 6th 2016, following the Access to Information Law (Law 12.527, of November 18th 2001), data from the files were solicited from requests for prompt return from 5 countries (Portugal, Italy, Argentina, USA and Spain) so that a broad evaluation of international legal cooperation could be made. On December 28th 2016, access was denied on the grounds that the scope of the request would be very too broad, with no logistical conditions for a timely response.

As a result, I submitted a new application, now limited to the essential documents of the last five closed cases from those same countries. Spain was replaced by France, as there were not five closed cases from Spain yet. Although the ACAF partially agreed with the request, it took no less than three months to meet the demand. On 24th March 2017 the feedback was given that the cases would be ready for me.

It is understood that it is not exclusive to ACAF the difficulty to meet requests for surveys, like the one made here. The requests sent to SPM to have access to the reports produced by the secretariat were solemnly ignored; the same occurred in the Federal Justice Council (CJF) and the National Justice Council (CNJ).

This picture of poverty in access to information reinforces the importance of the data raised here. This demonstrates that, despite the scarcity of judicial decisions, there is a very specific interpretation by Brazilian judges in relation to the 1980 Hague Convention. Faced with this reality, inferences are made to complement this data.

All of this illustrates that the practice of transparency is far removed from the legal precepts established in the Law of Access to Information (Law No. 12.527/2011). Scholars in the area of public archives have already reached that conclusion, according to which the Brazilian tradition is preferably restrictive⁴.

Thus, the federal archival scenario is justified, considering that its hierarchical position in the governmental structure is low in most cases, serving only to keep documents discarded by the Public Administration. That demonstrates that there is no perception of the importance of controlling the information produced for research purposes⁵.

However, historically, the Brazilian standard of management in the Central Authority does not stand out by the same level of transparency as the other signatories of this convention. A simple verification on the Child Abduction Database (INCADAT), an international database on child international abduction, illustrates that Brazil is not a frequent collaborator.

In a survey carried out on February 8th 2017, at http://www.incadat.com/index.cfm?act=search.detailed&sl=2&lng=1, in the search for countries of judgment, Brazil simply did not appear. Recently, on May 4th 2023, only 3 old cases are displayed. This introverted posture demonstrates a trace of our young democracy: transparency is always present in discourse, but, in practice, it is still a question to be overcome in relation to the supposed protection of privacy.

Even after obtaining the answer from ACAF, it was disappointing to discover that there were not 25 dossiers from the 5 countries in question, as requested. There were blockages not only on the names of the parties involved (justifiable to safeguard the confidentiality and intimacy of the parties), but also on the names of the judges and courts, including the jurisprudence cited, as well as the dates of the court decisions and case numbers.

As there would be no time to experience in the research itself the slowness of the Brazilian federal justice, the entry with the judicial measure was ruled out. The choice was to negotiate until the last moment the access to other cases, as it was the lawsuit related to a child of diverse origin of those five countries, not contemplated in the initial request. Thanks to the ACAF’s commitment and good will, the judgment of this case was received before the conclusion of this work.

As a result, there were constraints affecting this research, due to lack of data. The unofficial confirmation of the information - via telephone or inquiries in the TRF systems - made it possible to quote the case in the Federal Judiciary, but it was not possible to bring details, sometimes lacking important data, such as the name of the judge or even the date of the sentence.

Despite the delay caused by the request, the vast bibliographical production in the world was sufficient to compensate for the documental limitations. The need to write about Brazilian jurisprudence on international child abduction became more and more evident as no comments or analysis of the Brazilian judges were found in the writings and debates about the Hague Convention, mainly due to the fact that there are no reports in INCADAT. With the exception of Sean Goldman and the famous REsp 1.239.777 of the Superior Court of Justice (STJ), little or nothing was written about the Brazilian trials. The challenge of writing this research became greater when this institutional resistance was detected.

About the Lanes and Sean Goldman cases, the people involved themselves produced interesting narratives that facilitated the understanding from the point of view of abandoned (or left-behind) parents. This was the case with David Goldman’s A Father’s Love. Some good critical analysis was found on the Bring Sean Home Foundation website, whose testimonies of abandoned parents were considered only when Brazil was involved.

In order to preserve the identity of those involved, we chose to use their initials instead of names. With the exception of the Lanes and Sean Goldman cases, this line of work will be sought to avoid breaches of confidentiality, since only the facts are of interest and not the private lives of the people involved. The case number will be maintained in full to allow other researchers to confirm or contest the information and the proposal defended here.

As a research method, it was chosen to bring the concrete cases to the center of the analysis. From them, considerations were made about the application of the Hague Convention in Brazil in light of the national jurisprudence. As the concrete case develops, it is evaluated how the known regulatory framework received a very peculiar interpretation in Brazil. Often the application in Brazil is not supported by the 1980 Hague Convention itself.

As it is not feasible, in the limited scope of this book, to discuss the integrality of the application of the 1980 Hague Convention in Brazil, it became essential to exclude the cases of right of access or visits and the active cases to delineate the gnosiological cut, with the consequent limitation of the study to characterize the paradox of the adapted child, as well as its possible solutions. Thus, the methodological option mentioned above is justified.

From the evaluation of the 30 concrete cases, a critical analysis of the way the Hague Convention has been applied in Brazil was started, illustrating the issue of the lack of celerity as a vector for the argument of adaptation of the child and denial of access to transnational justice for the solution of conflicts. As a technical procedure, the analysis of the 1980 Hague Convention was used, followed by jurisprudential and doctrinal analysis.

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1 CARNELUTTI, Francesco. Diritto processo. Napoles: Morano, 1958. p. 154.

2 MARTINS, Natalia Camba. Subtração Internacional de Crianças: as exceções à obrigação de retorno previstas na Convenção da Haia de 1980 sobre os aspectos civis do sequestro internacional de crianças: interpretação judicial da adaptação da criança. Curitiba: CRV, 2013.

3 FILHO, Teófilo Antonio Miguel. Questões constitucionais e legais da Convenção da Haia sobre os aspectos civis do sequestro internacional de crianças. Tese de Doutorado em Direito (Orientadora Nádia de Araújo): PUC-Rio, 2010.

4 RODRIGUES, Georgete Medleg. Legislação de acesso aos arquivos no Brasil: um terreno de disputas políticas pela memória e pela história. In: Acesso à Informação e Direitos Humanos. Acervo: Revista do Arquivo Nacional. Rio de Janeiro, v. 24, n. 11, 2011, p. 5.

5 BITTENCOURT, Paola Rodrigues. Implementação da Lei de Acesso à Informação no Poder Executivo Federal: uma análise a partir dos serviços arquivísticos. Dissertação de Mestrado. Rio de Janeiro: UFRJ, 2014, p. 16.

Chapter 1 THE INTERNATIONAL EFFORT TO HARMONIZE THE 1980 HAGUE CONVENTION: THE BRAZILIAN CHALLENGE

The purpose of this Chapter is to briefly review the course of the procedure to request the return of a child who has been abducted or wrongfully retained in order to assess the difficulties of implementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) in Brazil. A comparison is made between the Brazilian application vis-à-vis the application according to the Hague Convention. This is a useful tool to make a reflexive exercise on the country’s compliance. In other words, we seek to understand how far the Brazilian practice is from the conventional spirit within the effort of the Hague Conference in favor of harmonization⁶.

It is important to clarify, first of all, that the Hague Convention is not yet fully consolidated in terms of its applicability. There have been adaptations that, over time, have set jurisprudential positions in certain countries. The Conferences held in Hague to discuss specific points and elaborate the Guides of Good Practices were determinant for this evolution of conventional application in the world.

According to Schuz⁷, there was a mixture of joy and disappointment in the world about the timing of the return of internationally displaced children. The average duration of 188 days for the return in 2008 was still regarded as very high. However, the disparities in implementation among member countries have always raised major concerns. The international effort for conventional harmonization still exists, and this dynamic will be addressed throughout this Chapter.

In comparative terms, it can be seen that Latin America, in 2015, presented an average of 163 days for the return request to be processed and obtain a definitive response from the State regarding the child’s situation⁸. That same year, Brazil presented an average of 627 days⁹ to process the return in the ACAF, to send it, via AGU, to the Federal Judiciary and to receive an unappealable sentence.

Throughout this book, we seek to unveil the reasons why Brazil is still so far from the global average, in terms of deadlines for the judicial provision, evaluating how the procedure works, from the arrival of the request at ACAF until the unappealable decision is rendered by the Federal Judiciary, to verify what can be done to change this current scenario.

In the first part, ACAF is placed at the center of the debate, observing the guardian and supervisory functions as important acquisitions not only in favor of institutional stability, but also for the development of international legal cooperation.

In the second part, we will address the jurisprudential view of three basic concepts for the application of Hague Convention in Brazil: habitual residence, right of custody and grave risk to return. The objective is to clarify, based on these concepts, how the Brazilian courts have dealt with the issue of conventional practical applicability.

In the third part, the main legal procedure that leads the country to non-compliance with the Hague Convention will be analyzed: the disrespect to the rule of prohibition of producing evidence outside the strict conventional limits and how this issue has impaired the application of Hague Convention in Brazil.

According to the Hague Conference’s most recent survey, the number of cases is growing as a result of increased international mobility in the world. Rhona Schuz¹⁰ argues that perhaps the main obstacle to a more detailed examination of methods to reduce disparity in the application of Hague Convention is the scarcity of information about the operability of the Convention in several Contracting States.

Brazil is one of the countries that could contribute more actively to this international joint effort. Since there are only 3 Brazilian cases at INCADAT, as we stated before, there is great difficulty in knowing exactly in which aspects Brazil does not comply with the Hague Convention. This part aims to contribute to this goal.

Research carried out by Professors Nigel Lowe and Victoria Helen¹¹ have shown that compliance with Hague Convention ranges from 20% (in countries like Estonia) to 100% (in others, like Scotland). In chapter 2, an outline will be made to know what the Brazilian percentage would be, based only on the 30 cases to which we had access, making an assessment of whether there was a correct application of the Hague Convention. This research also shows that the average duration of proceedings varies from 44 days in countries like Denmark to 347 in others, such as Bulgaria. Brazil is far from reaching this average, with approximately 731 days, as verified throughout the research.

It was observed, on the other hand, that the sentences determining the non-production of expert evidence because more than one year had not elapsed between the wrong removal and the filling of the return request with the Central Authority or the Judiciary increased significantly