May 23, 2024

The Supreme Federal Court (STF) began judging, this Thursday (23), a case questioning the rules of the Hague Convention on the Civil Aspects of International Child Abduction. After the presentation of the report by Minister Luís Roberto Barroso, the rapporteur, arguments were heard from the Office of the Attorney General (AGU), the Office of the Prosecutor General (PGR), and entities interested in the case. The start of the voting will be scheduled later.

Convention

The treaty establishes procedures to ensure the immediate return of children and adolescents under 16 years old who have been illicitly transferred to or wrongfully retained in countries that are signatories to the document. These situations typically involve conflicting relationships between parents or their relatives in disputes over child custody.

In Direct Action of Unconstitutionality (ADI) 4245, the then-party Democrats (now União Brasil) argues that some measures provided in the norm, such as the immediate return of the child, must respect the constitutional guarantees of due process, adversarial proceedings, and ample defense.

Serious Risk

The National Prosecutor for International Affairs of the Union, Boni de Moraes Soares, noted that the treaty establishes the existence of a serious risk as an exception to the child's return. On this point, he highlighted that Brazil has taken a pioneering stance by including in the exceptions situations of domestic violence perpetrated by the father against the mother, which impact the children's lives, and not only the classic scenario of violence directly against the child.

Best Interest

Representing Instituto Alana, lawyer Pedro Affonso Duarte Hartung emphasized that, according to the doctrine of comprehensive protection, all actions and decisions involving children and adolescents must prioritize their rights and best interests. In his view, the assessment of the best interest "should not be a free pass for the decision-maker, based on subjective analysis and high discretion," allowing "conscious or unconscious biases."

Exceptions

Janaína Albuquerque, representing the Maria da Penha Institute, the Institute for Overcoming Domestic Violence, and Revibra Europe, stated that, according to a Revibra report, in 98% of the 272 cases analyzed, domestic violence was the reason cited for bringing a child back to Brazil. She argues that these allegations raised by mothers who remove children from their habitual residence should be considered by the federal court. "Applying the exceptions is also fulfilling the convention," she said.

In this regard, federal public defender Daniela Correa Jacques Brauner pointed out safeguard measures that, in her view, should be observed in the application of the Convention. Among them are examining whether the removal of the child is a crime in the country of habitual residence, whether there are rules ensuring secure immigration status for the father or mother, and whether they have effective access to justice.

Due Process

In the assessment of the Prosecutor General of the Republic, Paulo Gonet, the term "immediate" related to the child's return provided in the norm does not mean the overcoming of due process. He cited Resolution 449/2022 of the National Council of Justice (CNJ), which lists situations where the child's return should be prevented. "The convention itself provides for the refusal of the request when there is a serious risk of the child being subjected to physical or psychological dangers or, in any other way, being placed in an intolerable situation," he declared.

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