HAGUE CHILD ABDUCTION IN BRAZIL
By Dr. Maurício Ejchel
Child abduction is a traumatic experience for any parent. If your child has been illegally taken to Brazil by your ex-partner, you may feel helpless and unsure of what steps to take.
In this article, we will outline the necessary actions you should take to ensure the safe return of your child back home.
E-MAIL YOUR CENTRAL AUTHORITY:
Prepare an e-mail explaining the full history of your child´s abduction, including the time that you noticed the child missing, collect all documents, paper, pictures of the child, and every and all documents in the name of the abductor and the child, as passports, copy of the birth certificate, etc. Title this email: Abduction of my (son/daughter) – Child missing.
Next, access your Central Authority’s website (list bellow) and follow the steps to complete the questionnaires and forms. Your Central Authority’s staff will provide continuous support, forwarding the international Hague Claim to Brazil, and requesting the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction.
It is important to note that the Hague Convention request against International Child Abduction does not guarantee the immediate return of your child. The process can be lengthy and complex, and there may be legal challenges that must be overcome before your child can be returned to you.
To ensure your child’s return, it’s crucial to obtain a Court Order from a Judge. This order not only determines the child’s return but also instructs the Federal Police to physically recover them.
It’s important to note that the Central Authority’s role is limited to contacting the abductor, informing them about the Hague international request, and suggesting mediation for a voluntary return. Other than that, they have the capacity to refer the case to a public prosecutor, who will act as your legal representative before a Brazilian Court.
CONTACT A LAWYER IN BRAZIL:
You don’t have to depend on the public prosecutor to act on your behalf. Instead, you can propose litigation directly against the abductor by retaining a lawyer in Brazil, who can immediately file a case for the child’s seizure and request an immediate court order.
In child abduction cases, a private lawyer is crucial for speeding up legal processes, filing for preliminary injunctions, and effectively handling the legal system. This is in contrast to the potentially slower pace associated with public representation.
Regarding the case itself, until the recent past, there were challenges due to the judges’ limited familiarity to deal with Hague cases, something that is also notable in several other countries.
In 2022, Brazil passed Law 449/2022, a crucial reform that has significantly improved the procedure for addressing international child abduction cases.
This new law reformed the procedure and introduced a more rigorous and comprehensive analysis of international child abduction cases, empowering the Brazilian federal courts to make decisions that are increasingly inclined toward the prompt return of abducted children to their home country.
Law 449/2022 includes provisions for immediate return orders, limits appeal possibilities, and introduces a shorter timeframe, all of which greatly improve the effectiveness of the process.
The impact of these legal reforms became evident in 2023, with a three-times increase in return orders during the first semester
Child abduction in Brazil is explicitly classified as a crime under Article 148 of the Brazilian Penal Code (Law No. 2.848/1940). This designation becomes especially significant when abductors choose to hide the child and employ illicit methods. Such actions can lead to legal consequences, including penalties of 1 to 3 years imprisonment.
To strengthen your case, you will need to gather pdf copies of:
(1) your Hague Request, basically the forms and documents presented,
(2) all the documents of the children as possible (ID, Passport, etc.),
(3) pictures of the children, capturing close-up shots of their faces to ensure easy recognition. You should also obtain pictures of the children and yourself together, as recent as possible.
(4) all pieces of evidence regarding the abduction act, marriage certificate, divorce documents, emails, flight ticket, the abductor’s behavior, etc.
(5) address from the locations where the abductor is probably sheltered, normally with their relatives or close friends.
(6) phone numbers, e-mails, or any other information to help track the children in Brazil.
(7) all information arising from the individual’s employment status, financial statements, personal friends, family and other known possible address, always with support of the local authorities to leverage resources and relevant insights.
(8) any and all Court documents arising from eventual past litigation with the abductor, police reports, social service interactions, medical or psychological interventions, evidencing if there are any past medical circumstances that might be relevant.
ESTATUTES OF LIMITATION – 12 MONTHS
Under the Hague Convention on the Civil Aspects of International Child Abduction, the left-behind parent has a period of 12 months from the date of the wrongful removal or retention of a child to request their return to their country of habitual residence. This is stated in Article 12 of the Convention.
The 12-month period is an important aspect of the Convention because it aims to discourage international child abduction and encourage the prompt return of children to their country of habitual residence. The Convention recognizes the harmful effects of wrongful removal or retention of a child, and it seeks to protect the best interests of the child by ensuring that their custody rights are respected.
However, it is important to note that the 12-month period is not an absolute deadline, and there may be exceptions based on individual circumstances. For example, if the left-behind parent was not aware of the child’s whereabouts or if there were obstacles that prevented the request for return within 12 months, the court may still order the return of the child.
In any case, it is crucial for parents who believe their child has been wrongfully removed or retained to act quickly and seek legal assistance to ensure the best possible outcome for their case.
UNDERSTANDING ARTICLES 12 AND 13 OF THE HAGUE CONVENTION:
Under the Hague Convention on the Civil Aspects of International Child Abduction, there are limited circumstances in which a child’s return to their country of habitual residence may be refused. These exceptions are outlined in Articles 12 and 13 of the Convention.
Article 12 provides that if more than one year has elapsed since the child was wrongfully removed or retained, the child’s return may be refused if the child has become settled in their new environment. The idea behind this exception is to protect the child from being uprooted from a stable environment and returned to a place they may no longer remember or have strong ties to.
Article 13 outlines several additional exceptions to the requirement of the child’s return. These exceptions include:
- If the person requesting the return of the child was not exercising custody rights at the time of removal or retention;
- If the person requesting the return of the child has consented to or subsequently acquiesced to the removal or retention;
- If there is a grave risk that the child’s return would expose the child to physical or psychological harm or place the child in an intolerable situation;
- If the child objects to being returned and has reached an age and degree of maturity where their views should be taken into account.
These exceptions are interpreted narrowly and are meant to be applied only in exceptional circumstances. The goal of the Convention is to ensure that children who are wrongfully removed or retained are promptly returned to their country of habitual residence, so exceptions to the return requirement are only permitted in limited circumstances.
The Hague Abduction Convention was first signed in 1980 and has since been ratified by over 100 countries. Its main purpose is to ensure that children who have been wrongfully taken or retained across international borders are promptly returned to their home country. The convention sets out a detailed process for the return of the child, including the obligation of the requesting country to provide evidence of the child’s habitual residence and the prohibition of consideration of the child’s custody status by the courts of the requested country.
THE SEAN GOLDMAN´S CASE
One of the most high-profile cases of child abduction under the Hague Abduction Convention was the case of Sean Goldman. In 2004, Sean’s mother took him from the United States to her native Brazil without the consent of Sean’s father, David Goldman.
Despite David’s efforts to have his son returned, the Brazilian courts repeatedly ruled against him. It was not until 2009, after years of legal battles, that Sean was finally returned to his father in the United States. For context, the “Sean Goldman Act” in the U.S. was named after a high-profile child abduction case in Brazil involving Sean Goldman, taken there by his mother without his father’s consent. The act enhances U.S. efforts to return abducted children.
For context, the “Sean Goldman Act” in the U.S. was named after a high-profile child abduction case in Brazil involving Sean Goldman, taken there by his mother without his father’s consent. The act enhances U.S. efforts to return abducted children.
This case led to the enactment of the “Sean and David Goldman International Child Abduction Prevention and Return Act” by the US Congress, often simply referred to as the “Sean Goldman Act.” Sean Goldman was taken from the U.S. to Brazil by his mother without his father’s consent. After a protracted legal battle, Sean was returned to his father, David Goldman, in the U.S. This act serves to strengthen the U.S.’s efforts in ensuring the return of children abducted to other countries and aims to hold countries that do not comply accountable under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
RETURN CASES (TV):
- Moara´s Case (Switzerland)
- Mcintosh Case (Scotland)
- Cantarelli Case (Ireland)
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Dr. Mauricio Ejchel is a highly qualified international lawyer based in São Paulo, Brazil. He graduated from the Law School of the Catholic University of São Paulo and holds a postgraduate degree in International Relations. In 1995, Dr. Ejchel was admitted to the Brazilian Bar Association and went on to establish MF Ejchel International Advocacy in 1996.
As a well-known commentator on legal matters, Dr. Ejchel is an expert in family law, international divorce, and Hague child abduction cases. He has appeared on several Brazilian TV networks and is a columnist for Radio Justice, affiliated with the Brazilian Supreme Court. Dr. Ejchel’s in-depth knowledge of international legal affairs has earned him a reputation as a respected authority in the field.
Dr. Ejchel is also a prolific writer, having authored numerous legal articles in both Portuguese and English. His steadfast dedication to safeguarding the interests of his clients has earned him a reputation as an accomplished and proficient barrister in Brazil.
With over 27 years of legal experience, Dr. Ejchel provides strategic counseling, directs mediation, and manages complex cases. He has contributed to legal cases in several countries and provided expert opinions in foreign courts. Dr. Ejchel’s dedication to protecting the interests of his clients is at the core of his legal practice. He believes that realization is based on a deep understanding of the law, navigating the Judiciary, awareness of his client’s needs, and a dedication to providing legal services.