In 2008, Brazil demonstrated patterns of noncompliance with the Convention in the areas of Central Authority performance and judicial performance. Additionally, the USCA has concerns about Brazil’s law enforcement performance. The Brazilian Central Authority (BCA)has advised the USCA that because of a case backlog in the Brazilian court system due to a shortage of public prosecutors, LBPs (Left Behind Parents) should hire a private attorney to speed the processing of applications for the return of children under the Convention. The Hague Permanent Bureau’s Guide to Good Practice indicates that one of the roles of the requested Central Authority is to either arrange for or assist the applicant to obtain legal representation, and to monitor progress of proceedings brought pursuant to the application. The USCA observes that once an LBP retains a private attorney, the BCA reduces its involvement and does not appear to engage in monitoring the progress of the application. With respect to its communication and cooperation with the USCA, the BCA has been extremely attentive and very responsive to the USCA’s inquiries. In a recent case, much of the activity of which took place after the end of 2008, the BCA collaborated closely with the USCA and showed persistent support for the child’s return to the United States. In addition, the BCA has met with several Brazilian judges to discuss best practices to uphold the Convention.

A number of Brazilian judges participated in a December 2006 judicial seminar sponsored by the Hague Permanent Bureau and attended by a representative of the USCA. Nevertheless, the Brazilian courts continue to show a troubling trend of treating Convention cases as custody decisions, and often deny Convention applications upon finding that the children have become “adapted to Brazilian culture.” Six abductions from the United States initially reported prior to April 2007, three of which were initially reported in 2004, remain unresolved (as detailed in the “Unresolved Return Applications” section of this report). Our experience indicates that it takes many months before a court receives a case to analyze and many more months before a court issues a decision.

The USCA observed during the reporting period that Brazil’s courts exhibit widespread patterns of bias towards Brazilian mothers in Convention cases. Brazilian courts continue to be amenable to considering evidence relevant to custody determinations but not relevant to the criteria to be applied in a Convention case, including looking at what solution is in the “best interests” of the child. See Convention, art. 16 (courts not to decide merits of custody dispute until they determine that the child is not to be returned under the Convention). In order to ensure that Brazilian judges are well versed in the principles of the Convention, the BCA continues to make efforts to limit the number of judges who have the authority to hear Convention cases. The USCA’s concerns about law enforcement performance are related to the judiciary’s poor performance. The lack of implementing legislation has led to Brazil’s failure to establish jurisdictional authorities in courts of limited jurisdiction, which creates difficulties for law enforcement when there are competing judicial orders. Additionally, law enforcement appears to give lower priority to cases under the Convention because wrongful retention is not a criminal offense under the Brazilian penal code.