‎International Child Abduction Lawyer in Brazil

Concept

International child abduction (or international kidnapping) is the act of illegally transferring or retaining the child in a country other than that in which the child was habitually resident, without the consent of one of the parents (father or mother), legal guardians or authorization judicial.

In addition to the unilateral alteration of the child's country of residence, it is also considered illegal to retain a child in a country without the consent of the other parent (or judicial authorization), after a vacation, for example. This is true even if the parent has authorized the vacation period.

As determined by art. 11 of Resolution No. 131, of May 13, 2011 of the National Council of Justice, travel authorizations do not constitute authorizations to establish residence abroad, unless expressly consigned.

The Hague Convention

The concept of international child abduction is present in the 1980 Hague Convention on the Civil Aspects of International Child Abduction and also in the 1989 Inter-American Convention on the International Restitution of Children.

The main objective of these treaties is to protect the well-being of children who live in a situation of family breakdown and who have been abruptly displaced from their country of habitual residence or who are being detained without authorization from a parent in another country, seeking his immediate and safe return to his country of habitual residence, this being the country in which the child was residing immediately before his illicit transfer or detention.

In this sense, it is the responsibility of the Central Federal Administrative Authority (ACAF) to receive and send requests for international legal cooperation for the return of child victims of international abduction to their country of habitual residence, as well as the implementation of the right of transnational visits (in cases where the occurrence of unlawful international abduction of children or adolescents), in accordance with the terms of the Hague Convention and the above-mentioned Inter-American Convention. Upon receiving requests from foreign Central Authorities, ACAF works with Interpol and the Federal Attorney General to locate the child and obtain a court order to implement such treaties, ensuring the child's safe return to his country of residence habitual or to reestablish contact between the child and the parent or any other family member who is prevented from exercising the right of visits.

In the case of children taken illegally from Brazil to other countries that are States Parties to the Hague Convention or the Inter-American Convention, it is up to ACAF to send a request for return or visits to the Central Authority of the country where the child is illegally detained.

The Convention was concluded in The Hague on 25 October

1980, and promulgated in Brazil by Decree 3.413 of2000;

• It arose to address the problem of children removed from

country to another, the absence of one of the parents (subtraction

international law), as well as to guarantee the right to

access of the child to its parents and other members of the

family (transnational visitation);

• It has become an even more important instrument in recent

decades, with the growth in the number of marriages, unions

relationships and relationships between people of different nationalities

diverse;

• In recent years, the Central Authorities have registered a

significant increase in the number of orders based on

Convention.

General considerations

Art. 1

a) Ensure the immediate return of illegally transferred children

to any Contracting State or improperly retained therein;

b) Enforce effective enforcement in other Contracting States

custody and visiting rights in a State

Contractor.

• The objective of the Convention is to return the child as soon as possible

possible to your previous situation, ensuring that issues related to

custody, care for the person of the child, visits and responsibility

parenting, etc., are discussed within the jurisdiction of the country of

habitual residence of the child or adolescent.

• The treaty, moreover, aims to prevent children from being removed

abruptly living with any of its parents, and remedying

this situation, whether returning the child to his country of habitual residence,

whether guaranteeing the right of visits of the parent who lives in a different country

of the child or other family members in a similar situation.

Goals:

1) The States involved in the request for return must be States Parties to the treaty. The updated list

States Parties to the 1980 Hague Convention on the Civil Aspects of Subtraction

International Children's Day can be accessed at:

https://www.hcch.net/en/instruments/conventions/status-table/?cid=24.

2) The child must have habitual residence in the requesting State, immediately prior to detention or

illicit transfer to another country;

3) There must have been a violation of the right of custody or visit, in accordance with the law of the country of residence.

habitual residence of the child;

4) Any person, organ or body that, at the time

from the beginning of the illegality, held the care of the child's person or the right to decide on his

place of residence, unilaterally or shared;

5) The child must be under the age of 16

For a request to be properly processed between the authorities of the countries involved, it is necessary to

that the child's withdrawal or retention in another country has violated the right (unilateral or joint) to

custody, visits, care for the person of the child and / or the applicant's right to decide on the location

of residence of the child, being considered unlawful by the laws in force in the country of habitual residence of the child.

kid. The analysis of the application, therefore, must be based on the law of the requesting country. The concept of custody, in

Convention, is an autonomous concept, which is not to be confused with the definition of the term in

and includes both the exercise of care for the person of the child and the right to decide

about your usual place of residence.

• Although the Hague Convention did not set specific criteria for determining residence

usual, the time required to characterize the child's habitual residence may vary, in each case,

gaining greater relevance in proving that the child was residing in that country, with

habitual character. Therefore, even if residing for a short time (months, for example), the

habitual residence of the child in the country from which he was abruptly removed will be configured if the child,

among other elements, he attended school, day care, had a fixed residence.

• The basic questions, therefore, for an application to be considered valid are: The applicant

was, at the moment of the beginning of the illegality, holder of the care for the person of the child

and / or the right to decide on your place of residence, unilaterally or jointly with

the other parent? Did the child have a habitual residence in that country?

• Even when the requirements of articles 3, 4 and 5 have been fulfilled, the request can be denied, by the

judicial authorities of the country where the child was taken (State of Refuge), if:

- After more than 1 year of withdrawal or retention, at the time of receipt of the order,

and be fully proven, before the judicial authorities of the State of Refuge, that the child has already

finds it adapted to its new environment;

-Resting the actual occurrence of a serious risk of the child, on his return,

the child or adolescent being subjected to physical or psychological dangers, or any other

way, in an intolerable situation;

- When the child himself opposes the return and, due to his age and maturity, the authority

convince itself that its opinion is expressed freely and free from defects in

consent. Therefore, the child's hearing should preferably follow the dictates of the

testimony without damage, regulated by Law No. 13.431 / 2017.

• Exceptions should be analyzed and applied restrictively and only when there is the production of

evidence, with ample and contradictory defense of its complete occurrence. In addition, art. 18 of the Convention

The 1980 Hague guarantees that even if any of the exceptions to the return of

child, the judicial authorities of the State of Refuge may determine the child's restitution, if

in the country of habitual residence, appropriate conditions are fixed for the child's return to occur in

securely, through the fixing of safeguards or mirror orders.

Exceptions

For example, the claim that the return can be emotionally difficult for the child cannot, for

example, to be interpreted as “psychic risk”. Likewise, the separation between the child and the parent

subtractor or separation between siblings. It is essential to fully configure a real and serious risk

for the child, which cannot be remedied by the authorities of the country of habitual residence (egg wars,

calamites, provem sexual abuse, etc.)

• The exception of art. 12, regarding the term, should also be applied in a restrictive manner. Strictly speaking, if the request is

done within 01 year, the child MUST be returned immediately. By comparing paragraphs 1 and 2 of the

art. 12, only if between the beginning of the illegality and the filing of the request for return to the authorities

administrative period has elapsed for more than 1 year, it is necessary to carry out expert evidence (for

professional) on the child's possible adaptation to the State of Refuge).

• Order made within 01 year = immediate return, except for the complete configuration of another exception hypothesis

that cannot be remedied by the authorities of the State of Habitual Residence.

• Request made after the 01-year deadline = analysis of the situation to determine whether the child is really

adapted and whether the return will be harmful, with the production of specialized expert evidence.

• The 1980 Hague Convention does not provide for the production of expert evidence on the social situation

of the child in the country of refuge. Any information about the child's social situation should be

obtained from the authorities of the country of habitual residence (through the Authorities

Central), under the terms of art. 13, paragraph 3 of the treaty.

• Article 16 - Dep have been informed of the unlawful transfer or retention

of a child under Article 3, the judicial or judicial authorities

administrative authorities of the Contracting State to which the child has been taken or

where it is retained will not be able to take decisions on the fund of the right to

custody without it being determined that the conditions foreseen are not met

present Convention for the return of the child or without the

reasonable period of time without a request for application of the

this Convention.

• In many cases of international abduction of children and adolescents, when the

return request is received by the Brazilian authorities, it is already underway

lawsuit to regulate the custody of the child initiated by the person who

removed or retained the child before the State Judiciary. However, the

existence of an action of this nature, even though it has been

provisional custody decision in favor of the subtraction parent cannot serve as a

obstacle to decide whether or not to return the child;

• In addition, under the terms of art. 16 of the 1980 Hague Convention, when the

state authorities are communicated directly by any

interested party, by the Brazilian Central Authority or by the Advocacy-General of

Union, the custody process should have its procedure suspended, until a decision

final decision regarding the occurrence of illicit international child abduction,

Federal Justice (external prejudice);

Conflict with Guard Actions

• The competence of the Federal Justice to decide on cases based on the

Convention, by almost peaceful understanding today, derives from articles 21 and 109 of the

CF / 88, since it is a cause founded on an international treaty and of interest to the

Unity.

Decree No. 3,951 / 2001 designated the Human Rights Secretariat as the Central Authority

Federal Administrative Council for the coordination and implementation of this treaty in Brazilian territory,

under the terms of art. 6 of the Convention.

COMPETENCES OF THE CENTRAL AUTHORITIES:

a) Locate an unlawfully transferred or detained child;

b) Avoiding further harm to the child, or damage to interested parties, by taking or making

Preventive measures;

c) Ensuring the voluntary surrender of the child or facilitating an amicable solution;

d) Proceed, when desirable, to exchange information regarding the child's social situation;

e) Provide information of a general nature on the laws of your State regarding the application of

Convention;

f) Initiate or favor the opening of judicial or administrative proceedings aimed at the return of

child, or, as the case may be, that allows the organization or effective exercise of the right to

visit;

g) Agree or facilitate, depending on the circumstances, obtaining legal and legal assistance,

including the participation of a lawyer;

h) Ensure, at the administrative level, when necessary and opportune, the safe return of the

kid;

I) To keep each other informed about the functioning of the Convention and, whenever

possible, eliminate the obstacles that may be opposed to its application.

The Convention in Brazil

Agents involved: ACAF, INTERPOL, MPF, MRE, AGU, Judiciary, Judges of

Connection

Requests Received by Brazil (passive cooperation) - children or adolescents who allegedly were

illegally transferred and retained in Brazil:

ACAF:

1. Child not located = case goes to INTERPOL, for assistance in locating it in territory

national;

2. Localized child:

a) Attempt to reach a satisfactory agreement for both parties (as a rule, the parents);

b) If it is not possible to reach a mediated solution, if it is sent to the AGU for legal analysis, with

with a view to seeking the proper application of the 1980 Hague Convention, by submitting

demand for search, seizure and restitution (or implementation of the transnational visitation right);

c) ACAF continues to inform the AC / Claimant and, if there is a positive decision for the return,

management to the bodies involved, in national territory and abroad (through the

Foreign Central Authorities) to achieve the most appropriate conditions for the return of

child, requesting action from the MRE, when necessary;

d) If there is a proven risk for the child, ACAF sends a complaint (for example: mistreatment, abandonment

material or moral, in national territory) to the Public Ministry, for the adoption of judicial measures

for the cessation of risk.

Order Processing in Brazil

AGU:

a) If it is subject to legal analysis, with a view to fulfilling, prima facie, the requirements for

filing of judicial demand;

b) Having fulfilled the requirements of the Convention, a lawsuit is initiated before the Federal Justice,

aiming at restitution of the child or the implementation of the transnational visitation right.

Requests sent by Brazil (active cooperation) - children or adolescents who

had habitual residence in Brazil and allegedly were transferred or retained in another

parents:

a) ACAF receives, analyzes and forwards the request for international legal cooperation to the Central Authority

the country the child is in;

b) If necessary, the requested Central Authority activates INTERPOL;

c) If necessary, Brazilian Consulates are called upon to provide support for the return of the child to Brazil.