Brazil's Patterns of Noncompliance: 2010

Below is the U.S. State Department's report on Brazil's continued noncompliance with the Hague Convention on International Child Abductions. 

During the reporting period, the United States experienced continued problems with Brazil's compliance with the Convention. As a result, the USCA finds Brazil not compliant with the Convention in FY 2009. (Please read the section below on recent updates for progress in FY 2010) Continued compliance failures result from significant delays within the Brazilian judiciary, which continued to handle applications for return under the Convention as routine custody cases. Article 16 of the Convention specifically prohibits judges from considering the merits of the custody dispute between the parents, yet Brazilian judges have considered the merits of custody in all six of the United States' longstanding cases with Brazil. Further compounding the judicial delays, in at least two new cases opened during FY 2009, Brazilian law enforcement took more than six months to locate the children listed in the return applications, even when provided with a specific address at which to find them. 

The USCA is unaware of any court-ordered Convention returns completed during FY 2009. As described in the “Unresolved Return Applications” section of this report, six longstanding cases to Brazil involving eight children remain unresolved, two of which were initiated as long ago as 2005. All of these cases experienced repeated and significant delays in the Brazilian judiciary. In all six cases, many months passed before the Office of the Attorney General (OAG) referred the Convention application to a court. In the two cases filed in 2005, it took between 18 and 22 months for the cases to be referred to a court, and delays persist in those cases. In four cases, the court has not yet issued any orders at all, and in the two remaining cases the court ordered return of the child to the United States, but the order has not been enforced. Law enforcement's failure to act to secure the children for return to the United States allowed sufficient time for the TPs to obtain a stay of execution of the return order and to file a number of appeals. In some states, notably Paraná and Minas Gerais, the courts treated Convention cases as ordinary custody decisions and considered the merits of the custody dispute, despite the prohibition on considering the merits of custody embodied in Article 16 of the Convention.

For cases in which children and their taking parents needed to be located, the Brazilian Central Authority (BCA) requested law enforcement assistance quickly. In two cases, however, Brazilian law enforcement took more than six months to act on the information to locate the children, even though the LBP provided specific address information and descriptions of the TP's main residence and the residence of extended family members.

As the fiscal year progressed, Brazil showed improvement with respect to fulfilling its obligations under the Convention. During the last three quarters of the fiscal year, the BCA took a more direct role in handling applications for return under the Convention, including cases in which the LBP retained a private attorney. Additionally, the BCA submitted FY 2009 applications for return to the OAG in a timely manner, and the OAG referred these applications to Brazilian federal judges expeditiously. During the second half of the fiscal year, some courts, notably federal courts in Brasilia and Rio, handled Convention applications in a timely manner. The USCA attributes this improvement to the BCA's extensive judicial training and outreach campaign, the Supreme Federal Tribunal's (STF) assignment of Convention cases to the Brazilian federal courts, and STF's directive, through two resolutions that Convention cases be given priority. One of these resolutions, which STF promulgated in 2007, consolidates jurisdiction in the Brazilian federal courts, which appear better equipped than state courts to handle Convention cases. This development has reduced delays cause by confusion over which court—state or federal—had jurisdiction over a given Convention case. The 2007 resolution also reduced the number of judges authorized to hear Convention cases, thus increasing the likelihood that these judges will gain expertise by hearing such cases more frequently. The second resolution, passed by the STF in 2008, establishes Convention cases as a priority, requiring newly filed cases to come before a federal judge within 48 hours. While the STF's working group on the Convention continues to draft implementing legislation for submission to the Brazilian Congress that will address jurisdiction and precedence of Convention cases, these resolutions provide a practical framework to support judges' initiative to take immediate action to meet Brazil's treaty obligations.

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