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Brazil: 2014 State Department Report

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 2014 report follows, as well as case summaries from the report. 

Patterns of Noncompliance:
Brazil

Brazil demonstrated patterns of non-compliance with the Hague Convention in the areas of judicial and law enforcement performance. The U.S. Central Authority is encouraged by initiatives taken by the Brazilian Central Authority (BCA) and the Office of Attorney General that demonstrate a commitment to improve compliance, and we have noted improvements in administrative case processing. However, significant delays for relief under the Hague Convention in Brazilian federal courts and difficulties in locating children remain a serious issue. The significant delays are the result of lengthy reviews conducted by Brazilian federal judges, which are typically followed by numerous appeals filed by taking parents. Court cases, especially in the appellate stage, can take years to resolve; the oldest return case was filed with the BCA in November 2006 and filed with the Brazilian federal court in January 2008. When the Department raised these concerns, the BCA responded by meeting with judges in individual cases and by examining overall case processing to reduce delays. Failure on the part of Brazilian law enforcement officials to locate children also posed problems in 2013. In one case, the court ordered the return of the child in April 2013, but the taking parent subsequently absconded with the child and Brazilian law enforcement has yet to locate them.

Countries with Enforcement Concerns

Below is a list of countries that are parties to the Convention in which left-behind parents in the United States have not been able to secure prompt enforcement of a court's final return or access order during the reporting period because of the absence of effective enforcement mechanisms.

Brazil: Convention return order not enforced

Unresolved Return Applications, Case Summaries:

1.  In September 2010, the federal court ordered the return of the child. The taking parent (TP) appealed the decision before the Regional Federal Tribunal - Fourth Region, and in December 2011, that court upheld the decision of the first instance court for the return of the child to the United States. In March 2012, the Brazilian Central Authority (BCA) indicated that the TP filed appeals before the Superior Tribunal of Justice (STJ) and Supreme Court. In March 2013, the courts rejected the appeals. The TP appealed the STJ decision and in September 2013, the STJ dismissed the appeal. That same month, the TP filed another appeal of that decision. In November 2013, the STJ declined to accept the TP's latest appeal. The TP then filed a "motion to clarify"; the Office of Attorney General filed an objection to this motion and requested that the first instance federal court issue an enforcement order without waiting on the settlement of the TP's outstanding or future appeals or motions. The U.S. Central Authority and U.S. Embassy Brasilia have regularly requested updates from the BCA on court proceedings.

2.  The Office of Attorney General (OAG) filed the Hague Convention case in a federal court in August 2010. During a September 2011 mediation hearing, the court ordered a psychological evaluation of the child and granted the taking parent's (TP) motion to hear testimony from character witnesses for the TP and left-behind parent. In March 2013, the psychological evaluation took place but results were annulled as the court did not notify the OAG which was therefore unable to send their own psychologist to the interview. Another evaluation took place in October 2013, but as of the close of the reporting period, the case has not moved forward. The U.S. Central Authority and U.S. Embassy Brasilia have regularly requested updates from the Brazilian Central Authority on the court proceedings.

3.  In April 2010, a federal court ordered the child returned. The taking parent appealed, and the Superior Court of Justice suspended the lower court's ruling. In May 2011, the Office of the Attorney General (OAG) appealed the suspension order. In November 2011, the Brazilian Central Authority (BCA) indicated that the appeal was before Brazil's Regional Federal Tribunal - First Region. In June 2012, this tribunal suggested that both parties review a proposed mediation agreement drafted by the judge, but the left-behind parent rejected the proposal. In June 2013, the OAG met with the judge to discuss the case but as of the close of the reporting period, there have been no developments. The U.S. Central Authority and U.S. Embassy Brasilia have regularly requested updates from the BCA on the court proceedings.

4.  In January 2012, the first level court ordered the return of the child to the United States. However, in February 2012, the left-behind parent (LBP) expressed interest in entering into mediation with the taking parent (TP). Since April 2012, the LBP and TP have negotiated a proposed mediation agreement. The TP recently signed the agreement and, in turn, the U.S. Central Authority forwarded the LBP's signed and notarized copy of the agreement to the Brazilian Central Authority in November 2013. The Office of the Attorney General states that it will submit the agreement to court.

5.  In October 2011, the left-behind parent informed the U.S. Central Authority (USCA) that a state court in Rio de Janeiro awarded the taking parent (TP) temporary custody of the child. The USCA informed the Brazilian Central Authority (BCA) of a possible conflict under Article 16 of the Convention. The BCA and Office of the Attorney General (OAG) addressed the issue with the state court, which declined to suspend custody action in the case. In December 2011, a federal court ordered the return of the child to the United States. In January 2012, the TP filed an appeal of the return order. In October 2012, the BCA stated that the appeals court denied the return of the child and the OAG filed an appeal in November 2012. In June 2013, the court accepted the appeal and upheld the return of the child, but the TP and child went missing. Per the BCA, Interpol and Brazilian law enforcement are actively searching for the TP and child but, as of the close of the reporting period, they have not been located. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA on location efforts.

6.  The case has not moved forward since it was sent to the Brazilian Central Authority (BCA) in November 2011 because the taking parent (TP) and child have not been located. The BCA stated that they have frequently requested the assistance of Interpol and Brazilian law enforcement in locating the TP and child, without success. The U.S. Central Authority and U.S. Embassy Brasilia have regularly requested updates from the BCA on location efforts.

7. In April 2013, a federal court ordered the child returned but, hours later, when the court officer went to pick up the child to hand over to the left-behind parent, the taking parent (TP) had absconded with the child. U.S. Consulate Sao Paulo has been working with local law enforcement to locate the TP and child but, as of the close of the reporting period, they are still missing. The U.S. Central Authority and U.S. Embassy Brasilia have regularly requested updates from the Brazilian Central Authority on location efforts.

8. The left-behind parent filed the Hague application directly in Brazilian federal court without going through the respective central authorities. In December 2011, the court ordered the child returned and the taking parent (TP) appealed the decision. In September 2013 the Office of Attorney General (OAG) agreed to assist in the Hague case. The TP and child were missing until December 2013 and, at this time, the Brazilian Central Authority (BCA) requested that the OAG file a motion for the enforcement of the original return order. The U.S. Central Authority and U.S. Embassy Brasilia have regularly requested updates from the BCA.

9. In May 2012, the Brazilian Central Authority (BCA) informed the U.S. Central Authority (USCA) that, due to abuse allegations made by the taking parent, the case would be sent to the Secretariat of Women's Policies for further review. Not until September 2013, and a leadership change within the BCA, was the case forwarded to the Office of Attorney General (OAG). In November 2013, the BCA reported that the OAG had accepted the case but as of the end of the reporting period, it had not yet been forwarded to court. The USCA and U.S. Embassy Brasilia have regularly requested updates from the BCA. 

More Information on Brazil Family Law:
The Office of Children's Issues of the U.S. State Department  continue

During the reporting period, the United States experienced continued problems   continue

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  continue

The Office of Children's Issues of the U.S. State Department  continue

From the State Department's annual report on International Child Abduction  continue

Francois Larivee is fighting for the return of his  continue

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