The Hague Convention: Brazilian Style

Tim Weinstein has taken the plunge and put pen to paper and here is the third in his series of articles on the Hague Convention and Brazil born from his personal experience with the process but let us be clear - "experience with the process"?

The reality for Tim is his children have been retained in Brazil for almost 3 years and the emotional loss and separation,feelings of despair and bewilderment even when the relationship with his children is strong is still more than many can bear compounded by the frustration with uncaring, insensitive bureaucrats plentiful wherever you wish to look.

Hague Convention: Brazilian Style

by Timothy Weinstein

In August, 2006, when my two children were illegally retained in Brazil, I was comforted by the fact that the Hague Convention on the International Aspects of Child Abduction had entered into force between Brazil and the United States nearly 3 years earlier in December, 2003. The Convention, having the same legal standing as an international treaty, has been accepted by 81 countries since its drafting in 1980. Article 2 of the Convention states that, 

“Contracting States[countries] shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” 

It further establishes the goal in Article 11 that a child be returned within six weeks from the date of commencement of the proceedings. With this in mind, I dutifully filed my petition through the Department of State, fully expecting to have my children back quickly.

A treaty is like a contract and there are several fundamental principles relevant to treaty law. 

The first is best expressed by the Latin phrase, pacta sunt servanda - in English, pacts must be respected. The second, according to the Vienna Convention on the Law of Treaties, states that "every treaty in force is binding upon the parties to it and must be performed by them in good faith." With this comes the implication that a party to a treaty cannot utilize provisions within its domestic laws as justification for a failure to comply with the terms of the treaty. In the United States, an international treaty is second only to the constitution.

 

According to Article 3 of the Convention,

"The removal or the retention of a child is to be considered wrongful where 
    a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
    b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." 

The left-behind, or requesting, parent will often obtain a local court order to establish that these conditions existed at the time of abduction and then attach this order as evidence for the petition. Like most requesting parents, I obtained a court order and attached it to my petition.

 

Article 12 very clearly outlines the procedure that a Contracting State(country) must follow when faced with a petition under the Convention,

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

It would seem that getting one's child back from a country that is a signatory to the Hague Convention is a black and white issue. In most countries, it is; however, not so in Brazil.

Paraphrasing from Article 13, a return order may be refused, if the court believes that:

 a) the child would be exposed to a "grave risk of physical or psychological harm" or put "in an intolerable situation" if sent home; or

 b) the child "objects to being returned" and is old and mature enough to have his or her views taken into account. 

A provision of Article 12 however, is often also cited by Brazilian courts as reason to refuse issuing a return order. This provision, which states that,

"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." 

This was cited in the case of David Goldman, when in October, 2005, the Federal Court recognized that although his son had clearly been abducted, because more than one year had passed since the date of abduction and the date of ruling, the child was to remain in Brazil. A correct interpretation is that a court may only invoke this provision of Article 12 if the requesting parent waited more than one year to commence proceedings, clearly not the case for Mr. Goldman.

 

In clear violation of Article 16, which states:

"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

The US Department of State noted in its 2008 Report on Compliance with the Hague Convention,

"The USCA notes several instances during FY 2007 in which Brazilian courts treated Convention cases as custody decisions, rather than applying the principles of wrongful removal and retention laid out in the Convention." 

Furthermore, many cases end up in local, rather than federal courts. Not only is this in clear violation of the treaty itself, but also with the principles of treaties in general. As a result, the Department of State gave Brazil a failing grade in the category of Judicial Performance.

 

These are not the only examples however, of how the Brazilian judicial system has failed to properly implement the Hague Convention. 

Ask Ariel Ayubo whose son was abducted in August, 2004. Since then, he has had 13 judges assigned to his case. According to Mr. Ayubo, it appears that no judge wants to make a ruling on this issue and simply passes it off to the next judge after 3 months. Alessandra Oliveira is now on the third judge since her two children were abducted in December, 2007. Manuel Bordaty, whose three children were abducted in March, 2007, has a different story (see www.hatufim.org). Although his case has not changed judges, he has been waiting nearly two years to even have his day in court. Kelvin Birotte's son was abducted in April, 2006 and although the judge heard his case in March, 2008, he is still waiting for a ruling. 

Taking a page from my own case, the judge ordered a psychological evaluation of my children in March, 2008. The psychologist performed the evaluation in November, 2008 and presented her report to the judge's secretary in January, 2009. The secretary, sensing the need to act "expeditiously", handed the report to the judge a mere 17 days later. I think that Francois Larivee, whose child has been in Brazil since 2004 best stated the situation with this quote, "When will the Supreme Court  make a final decision? 2009? 2010? 2020?" Some left-behind parents even expressed the suspicion that the judges intentionally delay just so they can then apply (albeit improperly) Article 12 as previously discussed in this article.

 

What would it take for Brazil to get their act together? Maybe they should follow the lead of the Manitoba Court System in Canada. In 2007, they adopted a standard procedure for Hague Convention cases and published it for the world to see. It would be nice if things were this simple in Brazil; unfortunately, they're not. With this, I'll leave all newly left-behind parents with one piece of advice, "Take a number and get in line, because it will be a long and frustrating wait."

 

For further information about the Hague Convention and it problems, please go to:

http://www.pact-online.org/html/about_the_hague_convention.html

© Timothy Weinstein 2009

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