The Office of Children’s Issues of the U.S. State Department’s Bureau of Consular Affairs has recently released the annual report on Hague Convention compliance. The report details various issues of non-compliance with member countries. It places countries under two categories; “Not Compliant” and “Demonstrating Patterns of Noncompliance,” with the former category signaling more serious compliance problems. This year Brazil has been classified as “Demonstrating Patterns of Noncompliance." The text of the 2012 report follows, as well as case summaries from the report.
Patterns of Noncompliance:
Brazil demonstrated patterns of non-compliance with the Convention in the area of judicial performance. Despite excellent central authority performance, the Brazilian judiciary demonstrated continued delays in case processing and a tendency to base judicial decisions in Convention proceedings on factors beyond the scope of the Convention. The judicial process is drawn out in Brazil; appeals add months, and sometimes years, to Convention cases. One return case has been pending in Brazilian courts since 2005.The Brazilian Central Authority (BCA) and Office of the Attorney General (OAG) utilized mediation to successfully resolve three Convention cases in 2011. Two children were also returned to the United States by court order. Notwithstanding some successful returns, enforcement of Convention court orders was a problem. In one case, the federal court and law enforcement refused to enforce the return order after the child displayed aggressive behavior toward the left-behind parent; the court subsequently suspended its own return order citing an interest in the child’s welfare. The OAG met with the federal judge to request an expeditious and final ruling in the case, but to date the case remains open and unresolved. Further, in an access case that was initially filed in 2004 and finally resolved by the court in 2010, the court-ordered access never occurred because the taking parent refused to apply for a passport for the child to travel to the United States for visitation and the designated escort did not appear for a scheduled visa interview. The USCA requested that the OAG ask the court to enforce the order; however, it is unclear what the status of the request is at this time.
1. The court ordered the child returned under the Convention in June 2007. The TP appealed, and simultaneously obtained temporary custody from a different federal court, in conflict with Article 16. An appellate court vacated the return order in September 2008. In May 2010, the Office of the Attorney General (OAG) filed a special appeal in the Convention case, however, the court has not yet ruled on that appeal. In August 2011, the OAG asked whether the LBP would be willing to participate in mediation with the TP. In September 2011, the LBP indicated that he is willing to participate, but requested more information before agreeing to do so. As of the close of the reporting period, the LBP had not received that information from the OAG. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on court proceedings and mediation services.
2. The OAG filed the Convention case in court in August 2010. During a September 2011 conciliation hearing, the court ordered a psychological evaluation of the child, and granted the TP’s motion to hear testimony from character witnesses for both the TP and LBP. The date for the next hearing has not been set. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on court proceedings.
3. In June 2011, the judge cancelled a conciliation hearing. In October 2011, the child underwent a court-ordered psychological examination. The BCA asked whether the LBP would submit to a home study prepared by a U.S.-based psychologist or social worker. The LBP and his attorney are considering the request. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on the court proceedings.
4. In April 2008, a federal court ordered the child returned. The TP appealed and the Superior Court of Justice granted a suspension of the lower court’s decision. In May 2011, the OAG appealed the suspension order. In July 2011, the federal court awarded the LBP access rights to the child pending the outcome of the appeal of the suspension order. The LBP was unable to travel to Brazil in August 2011 to exercise access rights due to Hurricane Irene. The court must reschedule the access for the LBP; however, the LBP has not provided a suggested date to the court. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on the court proceedings.
5. In September 2010, the federal court ordered the return of the child. The TP appealed the decision. An appeals hearing was scheduled for October 19, 2011, but the judge cancelled the hearing. The OAG attempted to contact the judge to discuss rescheduling, but the judge repeatedly refused to discuss the matter with either Brazilian or foreign authorities. An appeals hearing was held December 2, 2011. The court’s decision has not yet been published. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on court proceedings.
6. In November 2009, the LBP and the TP independently reached a visitation agreement. The LBP and the TP plan to finalize the agreement in the United States and Brazil. Once they do so, they plan to withdraw the Convention application. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA regarding the progress of the visitation agreement.
7. In May 2011, the LBP declined to attend a conciliation (mediation) hearing. The court heard testimony from the TP and the LBP’s parents and is expected to make a decision on the Convention application based on that hearing. In October 2011, the LBP informed the USCA that a state court in Rio de Janeiro awarded the TP temporary custody of the child. The USCA informed the BCA of this conflict under Article 16 of the Convention. The BCA and OAG have addressed the issue with the state-level court, which was not receptive to the request to suspend custody action in the case. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on the court proceedings.