Tuesday, February 09, 2010

The Scales of Justice Must be Balanced by Ricardo Zamariola

I came across this highly succinct article published in Brazil (obviously in Portuguese but I do not know who made the translation so cannot give credit) - the article itself was written by the Brazilian lawyer, Ricardo Zamariola Jr. Zamariola represented David Goldman in his six-year battle to recover Sean Goldman back to his home in New Jersey.

While this article is written from the perspective of improving the Brazilian legal process for handling Hague Convention cases, the truth is every country has something to learn and could overhaul existing processes to ensure the four-fold issues highlighted by Mr Zamariola regarding judicial sluggishness, are addressed:
  1. legal delay encourages international child abduction;
  2. it encourages left-behind parents to pursue the "self-help" route and re-abduct the child;
  3. abductors are rewarded with custody whether legal or de facto; and
  4. it cheats the Hague Convention treaty partner from which the child has been abducted and compromises the trust and reciprocity enjoyed when a Brazilian parent invokes the treaty for the return of a child to Brazil.
One issue which appears to be left is the lack of compliance after a child is returned to their state of habitual residence - Hague Convention orders for the interests of the child, must be complied with (undertakings); proceedings which are then initiated or recommenced must be heard promptly and effectively and it goes without saying, fairly. As the Convention is a civil remedy, it is important that the child is not simply moved from one parent/jurisdiction which is denying the child their rights, to a left-behind parent who then re-imposes the denial of the child to the abducting parent to the detriment of the child.

If David Goldman's wife, Bruna Bianchi was still alive, Sean Goldman should not be denied contact and visitation with his abducting mother, unless there were adjudicated reasons why it would not be Sean's best interests to have that contact. In Sean's case it is moot as Bruna is dead, but one issue which is frequently overlooked amidst the very charged emotions involved is that the Hague Convention is a civil and not a criminal remedy. The Hague Convention should not be used, and its stated aim is certainly not, to deny a child their basic human rights - a right to both mother and father. It is a fine balancing act requiring sensitive, yet robust, judicial management.

Numerous countries should take note - the United States not least.

Here is the article and a link to the original:

The Scales of Justice must be balanced

The Sean Goldman case showed how the issue of sluggishness in the Brazilian Justice system goes beyond the limits of our borders

THE CONTROVERSIAL case involving the minor Sean Goldman reveals how the issue of the sluggishness of Brazilian Justice goes beyond the limits of our borders, compromising Brazil’s international responsibility. We took almost six years to comply with an obligation that we should have honored in six weeks under the Hague Convention on the Civil Aspects if International Child Abduction.

The Hague Convention is an international treaty that 81 nations have signed up to, includingBrazil. Under its terms, when a child is taken from the country they live in without due respect for the laws in place there – conduct that the treaty classifies as abduction – the country they are transferred to will have to rule on their return to the first country. The convention stipulates that this return take place within six weeks, emphasizing urgency as a way to guarantee the child the least emotional disturbance possible.

Today, however, our Justice system is incapable of complying with the deadline established by the convention because of the ideology that forms the basis of the Brazilian civil procedure.

The judicial process works with two opposing requirements: speed and justice. A just decision demands reflection, which is an activity that requires time. However, the time taken in finding a solution to the case prolongs the uncertainty experienced by the parties and compromises the very effectiveness of the decision.

It is from balance in protecting these two values - speed and justice – that results a process able to pacify society. And it is precisely here that the balance of our Justice system fails.

The current Brazilian Code of Civil Procedure, published in 1973, above all privileges the value justice, allowing exhaustive re-discussion of each decision and prohibiting the decision on a victor prior to the end of the process. When the Hague Convention is involved, this obsessive pursuit of the fairest decision is reduced, paradoxically, to a situation in which justice is not served for anyone.

This is no exaggeration. On the one hand, the delay in the process prolongs the child’s stay inBrazil, which allows its adaptation to the new environment and means that a return to the country they lived in imposes a second emotional trauma. Sean’s case is a perfect example of this fact.

On the other hand, however, ruling that the child remain in Brazil because they have adapted reveals a cowardly injustice for the parent who rapidly initiates the return process, then having to wait for a response from the Brazilian Justice system – it goes without saying, this is what happens in the majority of cases.

Furthermore, more broadly speaking, not returning the child because they have adapted [to the new country] leads to other serious consequences: (i) it encourages abduction, because the abductor will know that the sluggishness of the Justice system will work in their favor, regardless of the unlawfulness of their conduct; (ii) it invites the parents who have suffered to rescue their children from Brazil independently of judicial order, to get justice for themselves; (iii) it gives custody to the one who broke the law, to the detriment of those who used legal means to protect their rights; and (iv) it cheats the other 80 signatory countries to the convention, compromising the reciprocity expected of them to return children to Brazil who have been taken unlawfully from our country. In the middle of this confusion of values, there is always a child...

This situation illustrates the obvious: we need to shake off our fear of making mistakes and speed up Brazil’s civil procedure.

Fortunately, recent legislative alterations have indicated a way forward. However, the most laudable initiative is from the Federal Senate –yes, we must praise it, when it deserves it – which last October set up a commission to draw up a new Code of Civil Procedure.

Made up of legal scholars of the highest level and presided over by Judge Luiz Fux, of the Superior Tribunal of Justice, the commission will introduce a draft by May 2010.

Dozens of international child abduction cases arise around the world every day, including in Brazil. If we do not balance the scales of Brazilian Justice, adding more weight to speed, the HagueConvention will have no meaning in Brazil.

It will be one more example of that typically Brazilian phenomenon, perhaps unparalleled, of law that does not work. But, should this happen, it will be an example of global proportions, causing us to blush in the international community.

May the case involving little Sean serve as a warning.

No comments: