International child abduction in Brazil

Main article: International child abduction

This article deals with the phenomenon of international child abduction to Brazil from other countries. The phenomenon is defined in international law and legislated on by the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force in Brazil on January 1st 2000 and aims to trace abducted children, secure their prompt return to the country of habitual residence and organize or secure effective rights of access.. In 2010 Brazil was accused by theUS State Department of being non-compliant with the Hague Convention.

Flag of Brazil

Brazilian non-compliance with the Hague Convention

2007 Report Covert

2007 Report Cover

Articles 12 and 13

Accusations that Brazil does not comply with the Hague Convention hinge on conflicting interpretations of Article 12 and Article 13 of the Convention. According to Article 12, "The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year [...] shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment," It is the second part of this article that is used as a defence in all Hague disputes in Brazil and one of the reasons why they are held up for so long. Brazilian federal courts routinely accept evidence from Brazilian abducting parents to the effect that the abducted child has become settled in his/ her new environment and the U.S. State Department has claimed that Brazilian Courts erroneously treat Hague cases as custody disputes, unnecessarily delaying cases and demonstrating an unfair bias toward Brazilian citizens, especially mothers. In addition to this, Article 13 of the Convention states, “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views,” while Article 13(b) states that children should not be returned to their habitual residence if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Brazilian abducting parents often present evidence to the court in the form of statements from the abducted child to the effect that they wish to stay in Brazil. A 1999 report by Prof. Nigel Lowe of the Cardiff University Centre for International Family Law Studies in the U.K. raised concerns about children not being returned to their place of habitual residence because of a misunderstanding of what the term 'habitual residence' meant (i.e., rather than referring to restoration of the status quo ante the abduction, abducting parents argue that it refers to the status quo and they are more likely to be able to argue this point if they can delay the judicial process long enough). Lowe states, "courts need also to consider any undue parental influence on the child, either through deliberate indoctrination by the abducting parent or simply by the natural inclination of many children to support a present parent against an absent parent." The report stresses that abducted children's wishes should not override the spirit and the intent of the Convention and that for children to be considered to have the maturity to decide where they want to be they should have reached the age of 16 - the cut-off point for Hague Convention cases.

The slowness of the Brazilian judicial process and the checks and balances built into the post-military-dictatorship Constitution of Brazil as a means of safeguarding human rights also create an interminable appeals process which means that once a child is abducted to Brazil it is likely that he/ she will remain there.

The U.S. Department of State 2008 Report on Compliance with the Hague Convention says: "Brazil continued to demonstrate patterns of noncompliance with the Convention in its judicial performance. 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 or retention laid out in the Convention. In two cases, Brazilian judges refused returns to the United States, citing the "best interests of the child." These decisions contradict the Convention, as the Preamble of the Convention declares that the interest of children is attained through their return to their country of habitual residence. In addition, the USCA notes that judges in some cases continued to demonstrate a bias towards mothers and towards Brazilian citizens. Further, the judicial process is excessively lengthy, with cases going on well beyond the six weeks mandated by the Convention."

The U.S. Department of State 2009 Report on Compliance with the Hague Convention states: "In FY 2008, Brazil demonstrated patterns of noncompliance with the Convention in the areas of Central Authority performance and judicial performance. 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." It takes many months before a court receives a case to analyze and many more months before a court issues a decision. 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."

The U.S. Department of State 2010 Report on Compliance with the Hague Convention states: "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. 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."

The Brazilian Central Authority

The Special Secretariat for Human Rights (Portuguese:Secretaria Especial dos Direitos Humanos, or "SEDH"), which is part of the Brazilian Ministry of Justice, has been designated as the Brazilian central authority as per Article 6 of the Hague Convention, making it responsible for the operation of the Convention in Brazil. Article 7 of the Convention states, "Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention," and lists the measures that they are supposed to take in order to achieve these ends. SEDH is required, therefore, to discover the whereabouts of the abducted child and prevent further harm by taking provisional measures, to secure a voluntary return or to bring about an amicable resolution of the issues, to provide information of a general character as to the law of their State in connection with the application of the Convention, to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child, to make arrangements for organizing rights of access. SEDH is also required to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisors, to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child and to keep each other informed with respect to the operation of the Convention and, as far as possible, to eliminate any obstacles to its application.

SEDH is directed by Patricia de Teixera Lamego Soares, a law school graduate with a Master's degree in International Affairs from the George Washington University in the U.S. According to a March 2009 report, Patricia Soares is adamant about keeping a low profile personally and for parents involved in international abduction cases. She is described as working with a tight, highly focused team of five people and is "respected for the assurance with which she accomplishes delicate tasks and stays cool under pressure."

According to left-behind parents, though, SEDH has displayed major shortcomings in several areas(see cases below) while the U.S.State Department and the Lowe report argue that it is in Brazilian courts that there is a widespread pattern of bias in favor of Brazilian abducting parents in Convention cases (see section on Brazilian non-compliance with the Hague Convention), rather than there being any failings on the part of the SEDH. Brazilian family courts continue to show a willingness to consider evidence in order to determine custody 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. The US State Department's concerns about law enforcement performance are related to the judiciary’s poor performance. Often, courts will determine that an abducted child should remain with the abducting parent in Brazil because he has 'adapted to Brazilian culture' or because of the length of time that has passed. Both of these reasons are based on logical fallacies and neither is admissible under the Convention. Additionally, it is argued that in Brazil law enforcement appears to give lower priority to Convention cases because wrongful retention of a child is not a criminal offense under the Brazilian penal code.

The Coordinator of SEDH, in what some have labeled a damage-limitation exercise, visited the US Department of State for a full week in November 2009 to review long-standing cases involving the abduction of US children. During this trip, she and Brazilian Embassy officials met with the parents of children kidnapped and taken to Brazil, NGOs, members of the US Congress and a federal judge who works on Hague Convention cases. The coordinator explained in detail resolutions made by the Brazilian Supreme Court and SEDH's outreach and education campaign to address Brazilian judges’ lack of familiarity with the Convention and the supreme court's resolutions.

Role of corruption in child abduction in Brazil

The Brazilian central authority, SEDH, is clearly not wholly culpable. Its internal systems may be chaotic and it has been accused of lack of urgency and determination, but the creeping effects of deference, corruption and networks of influence in Brazil and the notorious Brazilian jeitinho and Custo brasil cannot be ignored. Requests by SEDH to law enforcement agencies to locate missing children are rarely followed up on and SEDH itself shows a lack of vigor in pursuing abducting parents. According to Transparency International's 2009 report, Brazil ranked 75th out of 180 countries in terms of the degree of corruption that its own citizens ascribed to it. The country's - low ranking was attributed to poor governance, weak institutions and excessive interference by private interests in the judicial process. - The Brazilian judiciary is commonly viewed as unresponsive and has even been described as a 'black box' by President Luiz Inácio Lula da Silva. Poor citizens are often unable to obtain justice because they are unable to access legal services and this applies equally, if not more, to foreign parents fighting to have their children returned. Amnesty International claims that corruption continues to undermine access to justice in Brazil, reporting a 2009 corruption investigation in which federal police arrested the president of the Supreme Court of Espírito Santo, along with judges, lawyers and a member of the prosecution service, for alleged involvement in the selling of judicial decisions. The US Department of State reports that the Brazilian legal system is 'complex and overburdened' and that state-level courts are often subject to political and economic influence. Although there are provisions in place to ensure the formal independence of judges, and the broad functional and structural autonomy is guaranteed by the constitution, a 2009 report by Freedom House relates that judicial reform in Brazil has been slower than in other countries in Latin America because the judiciary uses its formal independence to resist change and stop investigations into judicial corruption. The general image of the Brazilian judiciary is one of impunity and inefficiency. The National Justice Council (Portuguese:Conselho Nacional de Justiça) is currently the only external judicial control mechanism, but Transparency International suggests a potential lack of independence even in this body, since it is made up of judges. Many in Brazil perceive the NJC to be no more than window dressing since its decisions can be annulled by the judiciary itself. Relentless political corruption in Brazil is further aggravated by partial immunity protecting high-ranking public servants. Under Brazil's 1988 Constitution, only the Supreme Court has jurisdiction over the President, ministers, legislators and high court justices so the decision makers in the Brazilian judicial system are under no pressure to abide by international law. - Despite apparently break-neck economic growth in terms of GDP in recent years, Brazil remains a country of the haves and the have-nots, with extremes of wealth distribution and inequalities. According to a 2008 BBC report, the rich have benefited the most while the country's new-found wealth has not trickled down to the poor. It is to the richer sectors of Brazilian society that children are invariably abducted and it is in these sectors that abducting parents have access to the corrupt networks and are able to employ the jeitinho to greater effect. According to David L Levy of the Childrens' Rights Council, Brazil disregards Hague when it comes to its own nationals, especially well to do, well-connected ones. Legal experts in international Hague proceedings refer to this Brazilian practice as: "State Sponsored Child Abduction." The criminal behaviour of Brazil in relation to children abducted to Brazil reminds some people that Brazil is a country that does not extradite criminals and that Brazil was the preferred destination for Nazi war criminals.

Reciprocity

Brazilian left-behind parents do not appear to suffer the same injustice in relation to Hague Convention appeals in other countries as non-Brazilian parents suffer in the Brazilian courts. The Hague Conference on Private International Law reports the case of a Brazilian woman and a Swiss man, the parents of two children born in Brazil in 1997 and 1999 who separated in 2004, but all continued to live in Brazil. In May 2006 the father abducted the children to Switzerland. On 10 October 2006 the local court in Switzerland ordered that the children be returned to Brazil. On 18 December the Swiss court of appeal upheld this order. The father then issued a legal challenge with both the federal tribunal and the Swiss supreme court. The order to return the children to Brazil was upheld on the basis of the provisions of the Hague Convention.

Parentally Abducted Children

Parentally Abducted Children

On April 24, 2009, the US Embassy in Brazil issued the following message to the Brazilian government: "Brazil and the United States have an international agreement about how to handle wrongful retention and wrongful abduction of children from their original countries of residence: The Hague Convention of 1980. Both countries are obliged to make sure that this treaty is enforced. The wrongful removal and wrongful retention of children from their homes, and the forced separation of parent and child is unnecessary and cruel. The United States has facilitated the return of seven children to Brazil since The Hague treaty entered into force between our two countries. We call on the office of the Secretary of Human Rights to support the return of all children wrongfully removed and wrongfully retained."

Parental Alienation Syndrome

The phenomenon of parental alienation syndrome (PAS) and patterns indicating a dynamic of parental alienation by the abducting parent have been reported by the left-behind parents of children abducted to Brazil. Parental alienation is a phenomenon in which the abducted child displays an antipathy towards the other parent and in which this antipathy is actively encouraged by the abducting parent. In June 2010 it was reported that a constitutional amendment incorporating parental alienation syndrome into the Brazilian legal code would have a bearing on child custody cases.

Resolved cases of children abducted to Brazil (with dates)

In 2001, a federal judge in Santos issued the first ever judgement in Brazil under the Hague Convention, calling for the return of a child to his habitual residence in Sweden. The child was born in Santos in September 1991 and the family lived in Brazil until January 1996. The couple separated in 1999 under Swedish law and this was their country of residence at the time. Joint custody was granted under Swedish legislation. In 2000, the mother and the 9-year old child traveled to Brazil with the father's agreement. However, the mother retained the child in Brazil after the authorized travel period, ignoring the custody decision already established by the Swedish court. The father of the child filed a judicial return petition in the Brazilian courts under the Convention, informing the Brazilian judge of the custody decision determined by the competent court in Sweden.

The Brazilian federal judge granted a verdict favorable to the return of the child to the country of his habitual residence (at the time of his removal), and the judgement stated that the retention of the child in Brazil by his mother was illegal, applying articles 3 and 4 of the Convention. The child returned to Sweden on the same day that the federal judge issued the court order to return the child. The child returned to Sweden the very same day.

This is the one-and-only example of a child being returned from Brazil under the Hague Convention; the only other resolved cases that have resulted in children being returned have been resolved through other means and, According to a 2009 NY Times report, there are presently around 50 unsolved Convention cases between the United States and Brazil.

Goldman (June 2004 - December 2009)

The case of Sean Goldman, a four year old boy abducted to Brazil in 2004, gained sustained international media attention after the Hague Convention case languished in the Brazilian courts for years prior to the abducting mother's death during the birth of another child by a new husband, her lawyer João Paulo Lins e Silva. The husband's family were a powerful legal clan with links to the Brazilian elite and attempted to adopt the child and continue to deny access to the legitimate father in contravention of the Convention. However, more than 200 children are being held in Brazil in contravention of the Hague Convention while their cases languish in the Brazilian judicial system or are simply ignored by the Brazilian authorities.

It is argued that the Goldman abduction is a model of the type of case that The Hague Convention was designed to resolve. However, his case became much more than an international child abduction case and turned into a nationalist war of words and media frenzy, with the Brazilian side claiming that the child was Brazilian and that any attempt to return him to the US would be in contravention of the Constitution of Brazil. Even though it is clearly in the Brazilian courts that decisions on whether to return abducted children are made, the neutrality of SEDH and its respect for international law has also come under increased international focus and scrutiny. At the height of the Goldman case in 2009, the Director of SEDH, Special Secretary Paulo Vannuchi intervened publicly, claiming that the child should remain in Brazil even though this amounted to kidnapping and was in violation of the Hague Convention. In a speech to the Brazilian parliament in April 2009, he claimed that if the child were allowed to visit his father in the US, he might end up being 'kidnapped', even though the child had been abducted to Brazil in the first place. The irony of the Brazilian position will not be lost on those who remember the case of the abducted Cuban boy, Elian Gonzalez, ten years earlier, in which the Brazilian government argued that any attempt to keep that child in the US was a violation of international law. The similarities between the two cases become even clearer when one looks at the role of political networks. The Cuban exile lobby used its connections to find a sympathetic judge to rule on the Gonzalez case and keep Elian in the United States. Similarly, Sean’s stepfather, Lins e Silva, and his family used their connections to ensure a succession of rulings favorable to their claims.

Larivee (8/04 - 6/10)

In 2001, François Larivee met Ione, a Brazilian woman who had been working as an architect in Montreal for 5 years. Two years later, when they found out she was pregnant, the couple bought a house, began living together and had a son, Lucas Larivee. In January 2004, Ione left and spent 12 weeks in Brazil and when she returned to Montreal their relationship imploded. In August, Larivee moved out and an agreement was signed in which he was allowed to visit his son three to four times a week. Before they had a chance to negotiate the child's custody, though, Ione, alleging she was going on a "short-trip" to the United States, abducted their son to Brazil. Larivee found out about this only when he returned to the house where his ex-partner lived and realized that his sons belongings were missing. He called the police but his attempts to get his son back to Montreal, even to negotiate basic custody, were in vain. He issued a request for return under the Hague Convention and it was sent by the Canadian central authority to SEDH, the Brazilian central authority. “At the time, I thought it would take a month or two to bring him back”, he said “I never wanted to make this public, but I don't think there is anything else I can do but go to the media”. According to Canadian legal sources, international abduction cases between Canada and other countries are sorted out quickly and efficiently except in the case of Brazil, “the difficulty with this Brazilian case is that we are buried in delays. There is always another appeal available to the mother.”

Ione was able to obtain custody of the child in the Rio de Janeiro family court, alleging on perjured evidence that Larivee had abandoned them. Because of this, Larivee had to transfer the case from the Family Court to the Federal Court. In March 2007, almost two and a half years after the original petition, the Federal Courts determined that the child should be returned to Canada. The child could not leave the country until all the appeals had run out, though. In October 2007, the Federal Court of Appeals rejected Ione's arguments and demanded that the child be returned to Canada and Larivee travelled to Rio de Janeiro to pick up his son. It should have been a simple operation, but when court officials went to pick up the child, Ione had fled with the child again. Her lawyer who was, in the meanwhile, inside a car parked in front of the house informed officials that the door was open. According to Larivee, his ex-partner's father was in the house and told authorities: “François is a nice guy, but my daughter is a lioness and will fight until the end, you will never get that child”.

Two days later, Ione obtained a decision from the vice-president of the Federal Court of Appeals suspending the decision to remove the child to Canada. After receiving another reprimand, she prepared two more appeals - one in the Federal Supreme Court in Brasilia and another in the Federal Supreme Court of Rio de Janeiro to try to suspend the previous decisions.

In May 2010, Brazilian Supreme Court (STJ) judge Paulo Furtado formalized an interim agreement between Larivee and Ione over the now seven year old Lucas under which Lucas would return to Canada to live with his mother from March 2011 with all expenses paid by Larivee and that he would travel there before that to spend the school holidays. Under the agreement, Ione agreed to suspend an application to the Supreme Court to reverse a previous decision to enforce Larivee’s rights of custody under the Hague Convention.

According to the judge, the agreement was "the best way to guarantee the welfare of the child" and thus the Hague Convention will be fulfilled. The judge explained also that the arrangement is temporary because the decision may be reviewed by the Canadian courts when the mother returns there. The Brazilian Supreme Court described Ione’s actions in this matter as being motivated by ‘bitterness’.

Unresolved cases of children abducted to Brazil

Ayubo (August 2004)

Lorenzo Ayubo was abducted and taken to Brazil from the US on August 23, 2004 during what was supposed to be a two week visit with his mother, Rita Guimarães. His father, Ariel Ayubo, a US resident, did not know that its was the last time he would see his son again. Lorenzo was only 3 and a half years old, then. He waited at the airport for them to come home, not knowing at the same time that Guimaraes was filing for custody rights in Brazil. He says he should have realized then that something was wrong when Guimaraes did not call to let him know that they had gotten to Brazil safely. Her attitude changed and when he asked to speak with his son, Lorenzo. She would say, "he's sleeping" or "not there", or "he's playing" or many many excuses. "I didn't know that Rita was going to do this. I have contacted our elected officials all the way up to the White House with no luck." In 2007, judge Fabricio Bittencourt, of the Federal Court of Guarapuava in Parana ordered that Lorenzo should be returned to his father after three years of judges passing the case from one court to another. Immediately after the order, though, the case had to go to a mediator who said that Lorenzo should stay in Brazil. The Guimaraes family immediately appealed. The appeals process against that decision took another year. Then, in 2008, the Federal Court (TRF) – 4th Region in Porto Alegre ruled that Lorenzo had already been in Brazil for so long that he had acculturated to it and that he should stay with his mother. This, has no basis in the Hague Convention, but it is a common strategy employed by Brazilian legal teams and something that is routinely used by Brazilian judges.In a newspaper interview, the mother, Rita Guimaraes, claimed that she had never kidnapped her son and that she had always maintained contact with the child's father. Ariel Ayubo, however, argues that the Guimaraes family wield considerable political power in the town they live in,that he was systematically denied access to his son and that he was not given adequate support by the bodies charged with maintaining his and his son's rights, such as Special Secretariat for Human Rights (SEDH), the US State Department and Office of Children's Issues and the US Consulate General in Brazil. It is also clear that the level of legal assistance that the Guimaraes family received was of the highest quality, with Rita de Cassia Guimarães lawyer being Flavio Pansieri, Professor of Constitutional Law at the Pontifícia Universidade Católica do Paraná, one of the main law schools in the state of Parana, and President of the Brazilian Academy of Constitutional Law, or the Academia Brasileira de Direito Constitucional. The fact that the Hague Convention overrides the Brazilian Constitution does not seem to have been considered by the judge in this case.

Birotte (4/06)

Kelvin Birotte was born in Las Vegas to Kelvin Birotte senior, a chef at Caesar’s Palace, and Hilma Aparecida Caldeira, a former member of the Brazilian international volleyball team in 2005. In 2006, his mother took him to Belo Horizonte in Brazil with the agreement of Birotte senior for what was meant to be a three month visit to her sick brother. When she did not return to the US after four months, Birotte senior went to the Brazilian consulate in Houston for advice and was laughed out of the room and told that he should contract a Brazilian lawyer. Caldeira had used the four months stay to claim Brazilian residence and citizenship for the child. Denied any assistance by the US Department of State Office of Children’s Issues and the Brazilian Special Secretariat for Human Rights (SEDH), he went to Brazil and was prevented by Caldeira and her family from being alone with Kelvin junior and had to return to the US alone. He went to court in Brazil but the judge did not know what the Hague Convention was and refused to make a ruling, passing the case up to another court. In 2008, a judge from the 19th Federal District Court in Belo Horizonte, Joao Cesar Otoni de Matos determined that Kelvin Birotte junior should return to the US under the terms of the Hague Convention. Caldeira immediately disappeared with the child and appealed to a higher court through her lawyer, Gilberto Antonio Guimaraes, who at the same time claimed to the press that he did not know where she was. The case dragged on until April 2010, when Minister Nancy Andrigui of the Brazilian Superior Court of Justice (STJ), ruled that the child should stay with his mother in Brazil in complete contravention of the terms of the Hague Convention. Caldeira and her lawyer gave a highly emotional interview to the R7 TV channel in Brazil. Guimaraes claimed that Article 13 of the Hague Convention meant that the child should remain in Brazil since he had become acculturated and that a return to the US would be traumatic.He also asserted that the Brazilian judiciary ws a model for the rest of the world. Caldeira, who is in breach of the Hague Convention and may be arrested if she enters the US, cried and claimed that she had been slandered as a kidnapper and that she only wanted the best for her child, that Birotte senior had shown no interest in the child and that he was unemployed in the US and could not keep her in the style that she felt she and her son deserved. "There is no kidnapping. They want to finish me off. No mother kidnaps her child. A mother always seeks what is best for her child. A mother does not run away from a country with her child if she is okay. What woman wants to build something with the child alone? The dream of every woman is to have a husband helping, bringing the child up with love, with financial support, with everything,"

Bordaty (3/07)

Yehezkel Hanan, Israel Haim, and Yoshua Itai Bordaty were born in Israel. The family moved to Florida in July 2006. Eight months later, on March 20, 2007, Smadar Hameiry abducted the 3 children to Sao Paulo, Brazil. Mr. Bordaty filed for divorce in Florida and was granted full custody of the children. Smadar Hameiry was represented at the Florida divorce trial by her Florida attorney.

Mr. Bordaty also filed a Petition for the Return of his children under the Hague Convention on the Civil Aspects of International Child Abduction. An Application for the Return of the Children was filed by the children's father through the U.S. State Department on June 13, 2007, and was received by the Brazilian Central Authority on July 13, 2007. The Brazilian Federal Court has found that the children were illegally removed from Florida and illegally taken into Brazil because Smadar Hameiry traveled to Brazil without the permission of her husband and without the permission of the Florida Court. The Brazilian Federal Court has also recognized the Florida divorce, that Mr. Bordaty has legal custody of his children, and that the children are being illegally retained in Brazil by Smadar Hameiry. Nevertheless, the Brazilian Federal Court has stated that because the children have been in Brazil for such a long time (after an unexplicable 20 month delay in starting the trial) without having any contact with their father, that it would be in their best interest to stay in Brazil with their mother. According to the Hague Convention, the Bordaty children should have been returned to Florida, USA, by August 2007. Brazil has been determined to be non-compliant with the Hague Convention in this case.

While the Brazilian Federal Court handling this International Parental Kidnapping case has so far refused to return the abducted children, they have also made it very clear that Smadar Hameiry must allow the children to communicate with their father every day. Furthermore, on 7 August 2009, the Brazilian Federal Court issued an Order stating that Smadar Hameiry can return to Israel with the children if she wishes to do so. But the children are still in Brazil, and Smadar Hameiry and her family in Brazil have stated that they will never let the children talk to their father again.

Drummond (2/09)

On February 7, 2009, Nadia Drummond was due to be brought to her father’s home in North Carolina, in the US for one of her 3 day-per-week visits. When Nadia did not arrive, her father, Devon Davenport, went with an officer from the local Police Department to the mother’s home, which they found empty. The US Department of State later confirmed that Nadia had been taken from North Carolina to Brazil on February 5, 2009. An emergency order granting Davenport sole legal and physical custody of his daughter, as well as the immediate return of her to her habitual residence in North Carolina, USA, was signed on February 12, 2009.

Gerber (9/06)

Nicolas, Laetitia and Anthony Gerber were born in France and were abducted in September 2006 in Fortaleza, Brazil by their mother during a family holiday. The Brazilian wife tricked her French husband, Alain Gerber, into leaving the children in Brazil on the pretext that she needed minor surgery and wanted them with her. Gerber was so coned, though, that he asked the French pro-consul in Fortaleza for advice. On September 27, Gerber returned to France. His wife and children failed to follow him and it was not until March 2007 that he discovered through diplomatic channels that his wife had obtained custody of the three children in the Ceara state courts in contravention of international law. At the same time he discovered that his wife had withdrawn 100,000 Euros from his bank account to give to her extended family in Brazil. In the meantime, in December 2006, the French Central Authority Ministry of Justice had contacted the Special Secretariat for Human Rights (SEDH) in Brazil to ask them to locate the missing children. SEDH responded that they were unable to do since they had disappeared (they had always been at their grandparents’ house in Fortaleza). In March 2007, in an interesting parallel to the Boyle case, below, SEDH said that their work was finished and that they could do no more since the wife had proven to them that Gerber had agreed that she could move to Brazil with the children. Evidence from documentation held by the police in Fortaleza, though, shows that his wife did not initially understand what the Hague Convention was and refused to respond to SEDH and to her husband’s phone calls for this reason but that, once she had understood, she changed tack and claimed that she had moved the children to Brazil legally and with Gerber’s approval. She also claimed to the Fortaleza police that her address was the same as her parents’ while the parents claimed to SEDH that she had disappeared without leaving an address. Despite this, and despite proof that the family home was in France, SEDH initially refused to reopen the case. However, in May 2008, SEDH did reopen the case and acknowledged that the children had been abducted but that they were unable to order the return of the children to France. In February 2009, after five lawsuits, theCeara State Court of Justice annulled all their previous decisions on the grounds that they had finally realized that they were not competent to judge what was a case for the federal courts. Gerber immediately filed a lawsuit in the federal courts for the immediate return of his children under the Hague Convention and on February 14, 2009 he went to Brazil, convinced that he would be able to return to France with his children. Instead, on arrival he was arrested by the Brazilian Federal Police on a charge of non-payment of child support (see Boyle, below) and only the intervention of the French pro-consul and his lawyer resulted in his release.

He was not allowed to be alone with his children and was supervised and filmed and recorded by his ex-wife, her brother and an unknown armed man. He was also visited by a ‘Judicial representative’ who threatened him in front of his children with arrest if he did not pay spousal support of 75,000 Euros within three days. In an interview with Le Figaro, Gerber says,

“I have done nothing more than ask for justice all these years. I control my pain as hard as I can. In three years, my ex-wife not even sent a short note about our children. They no longer speak French or know anything about French culture. Both have been completely eradicated from their lives. From birth, I always looked after our children, parental authority was always been shared between us and now, as part of the divorce (which she never had the dignity to respond to) I have ‘right of custody’ under the law in France. I have submitted to the Brazilian court more than 70 sworn statements of good moral standing under the quality of a man, father and husband. How long will Brazilian courts take to solve such cases as mine and make so many people suffer (grandparents, uncles, cousins, father, and of course, our children in the first place)? How long the courts will deny their international commitments? How much longer will the courts allow one of the parents to practice parental alienation the consequences of which are so serious and harmful to children?”

Manzi (11/06)

Not all Brazilian abductors are women; in November 2006, Roberto Manzi, a Brazilian man, abducted his two daughters, Bailey, aged 4 and Chelsea, 10, to London in the UK. After a year-long battle a court ordered him to return the girls to the USA. Instead, using false passports, he decided to flee to Brazil, where the family is originally from. According to his wife, Brazil is a country ‘where you could get away with mostly anything’. The children were severely brainwashed by their father and were also prevented to speak to their mother. On August 2009, the Brazilian Federal Court issued an order of return for the two children, but as soon as the abductor learned of the ruling, he took them and hide with them in the city for about fifty days until he could appeal the sentence. In October, he was caught by the Federal Police trying to forge the numbers on the license plate of his vehicle, with intentions to flee again but this time he was arrested for 2 months. The children were taken to one of the mother's family member right away and it's where they are living now. In May 2010, the Judge met with the girls to hear what their wishes were in regards to either stay in Brazil or come back to the USA and both said they wanted to live with their mother in the USA. The Judge also had a video-conference with the mother through Skype. Finally As of July 2010, Chelsea and Bailey are in constant contact with their mother and are more than anxious to come home. The case was being considered by the High Court Judges of the Supreme Court in Brasilia, DF, in Brazil.

Pate (8/06)

Robert Martin Pate of Houston, Texas, met Brazilian woman, Mônica Dutra, in Manaus, Amazonas, in 2000 and they had a daughter, Nicole Pate, When Nicole was six months old in April 2001, the family moved to the US and in 2004 Dutra asked for a separation. Counter accusations flew, with Dutra claiming that Pate had told her she would pay for the divorce and Pate accusing Dutra of being a spoiled tropical princess who could not live without servants. In May 2006, Dutra returned to Brazil for a short visit, saying that her father had cancer. When she did not return, Pate filed a request under the terms of the Hague Convention and Dutra was accused of child abduction. When the case came to court in Brazil, Pate lost. A lawsuit Pate has filed alleges Dutra's employer at the time, El Paso Corporation helped her make that plan a reality.

Rezende-Boyle

Not all abductions involve moving the child to Brazil from another counry. In the case of Rebeca Rezende Boyle, the abducting parent, Mara Silvia Oliveira Rezende, broke off all contact with the child’s father, Martin Boyle, a British citizen. Boyle and Rezende had separated and signed an agreement with the family court in Sao Paulo granting Boyle visitation rights and requiring Rezende to keep him fully informed of his daughter's whereabouts. However, with the assistance of her parents, Maria José Oliveira Rezende, who is a lawyer, and Milton Pessoa Rezende, a director of the US multinational, the L.S. Starrett Company, in Itu, she abducted the child and repeatedly moved her around from location to location while refusing to respond to requests for information from Brazilian lawyers, the British Consulate General in Sao Paulo and International Social Services. Rebeca was 13 when her father finally discovered the Hague Convention and the Hague request was first made in April 2006, but by the time she had reached the age of 16 in July 2008, SEDH had still not managed to locate her, despite repeated assurances to Boyle that Interpol had been informed. In May 2008 the matter was passed by Patricia Lamego de Texeira Soares, the SEDH case co-ordinator, to the Brazilian Solicitor-General Advocacia-Geral da União, who rejected it on the grounds that the abducted child was ‘almost’ 16. The mother’s strategy of playing for time and counting on the slowness of the Brazilian judicial system had worked, despite the father’s increasingly desperate calls and emails to SEDH warning them that the mother was clearly playing for time and SEDH's promises to the father that they would not give the mother more time (even though they had no idea where she was living). On the collapse of his Hague request, the father went to Brazil to search for his daughter and was arrested on landing at Guarulhos International Airport on a trumped-up charge of non-payment of child support which had been issued by Maria Jose Oliveira Rezende in order to physically prevent him from contacting his daughter (see the Gerber case, above). Boyle was kept in prison for 15 days in a 3m by 4m cell with 20 criminals and it was while he was there that he was told that Rebeca had been fraudulently adopted by her stepfather, a man called José Augusto Dos Santos Sá, an employee of Petrobras in São José dos Campos, that her birth certificate had been changed and Boyle's name had been removed from it on the basis of perjured court evidence in which Mara Silvia Oliveira Rezende and José Augusto Dos Santos Sá swore on oath that Boyle had disappeared and that his whereabouts were unknown. During the whole period that the fraudulent adoption was taking place, Boyle had been trying to locate his daughter and had received emails from Milton Pessoa Rezende, all of which indicated a wish not to get involved and none of which mentioned an adoption process. The situation that Boyle found himself in was that he was both the father for the purposes of the spurious child-support claim, had been systematically denied visitation rights for 14 years and was no longer Rebeca's father under Brazilian law anyway The conditions that Boyle were kept in are reflected in an Amnesty International report in conjunction with the UNHCR, which says that the Brazilian detention system is characterized by cruel, inhuman and degrading conditions with overcrowding and gang control being a serious problem. In 2009, Boyle issued legal proceedings in the family courts in São José dos Campos to have the fraudulent adoption reversed but, as of July 2010, the Brazilian judicial authorities had still failed to locate Mara Silvia Oliveira Rezende, José Augusto dos Santos Sá and Rebeca (who by then had turned 18 and was no longer a minor). Boyle has still not seen or spoken to his daughter.

Sanchez-Machado (3/08)

Michael Sanchez met Nigia Machado, a Brazilian woman, in English class in Berwyn, Illinois in the US in 2002 and dated until they graduated in 2004, after which they started living together. A few months later, Machado became pregnant and gave birth to Emily Sanchez Machado. Machado’s parents were extremely upset about the pregnancy. Machado’s parents obstructed Sanchez from seeing his daughter. In December 2005, Sanchez contracted a lawyer to assure his rights as a father. Machado had not listed him the father on the birth certificate, and refused to allow Emily to participate in a paternity test. In court, the judge ordered a DNA paternity test. Based on the results of the DNA test, the judge ordered her to put Sanchez’s name on Emily's birth certificate. On January 4, 2007, after nearly 2 years of negotiations, they were able to agree on terms for a parenting agreement.

One year after the parenting agreement, on March 27, 2008, Nigia informed Sanchez that she would be leaving for Brazil because of ‘frustration with the courts’ and the fact that he knew she was an illegal immigrant in the US. Sanchez’s experiences with authorities in the US and Brazil reflect others’ experiences. The Illinois State Police, the FBI and the NCMEC all listed Emily as missing and then removed her name from their lists. On February 16, 2009, Emily was finally located in Brazil. Sanchez’s story is familiar; he states that he has made over 10,000 phone calls, sent over 2,000 E-mails and 5,000 text messages to people and issued 2,500 press releases and accumulated $14,000 in legal fees. On March 20, 2009, he submitted a petition for Emily's return under the Hague Convention but has faced difficulties with the Brazilian Central Authority.

van Driel-Maciel

Thiago De Sousa Maciel has been held in the state of Amazonas, Brazil by his mother's sisters, Maria Azilna Duque Maciel, who is a Brazilian civil servant, and Maria Auxiliadora de Sousa Maciel. His parents, Kees van Driel, a Dutch citizen, and Maria Acilda de Sousa Maciel, a Brazilian, were officially resident in Bilthoven in the Netherlands. They divorced on June 18, 2008; the mother refused to agree to any custody and visitation arrangements and took Thiago and his half-sister, Maella, from there to Brazil on September 19, 2008. Although Kees van Driel had no custodial or legal rights over Maella, a Dutch court ordered a report and investigation by the Department of Child Defense on Maella’s behalf to so that van Driel could gain contact and at the same time contact was made with the Brazilian central authority, the Special Secretariat for Human Rights, (SEDH), and a request for the return of Thiago made under the Hague Convention. In January 2009, Maciel returned to the Netherlands without van Driel’s knowledge in January 2009 to start an appeal procedure in a superior tribunal. The Dutch police did not put her on a wanted list until February 2009. During the time she was in the Netherlands, the Dutch police were unable to locate her. While in Brazil, Maciel issued a police statement against van Driel and the Office of the Solicitor-General in Brazil (Advocacia Geral da Uniao) postponed the Hague Convention case due to this for several months. According to van Driel, when they did eventually take on the case they did not know what to do and the Dutch central authority had to explain the case again to SEDH. On October 19, 2009, after three enquiries, the Dutch central authority received a letter from SEDH stating that the case had been lodged with the Federal Court of the State of Amazonas under number 2009.32.00.007253-4. On October 20, 2009, the Dutch central authority asked for an indication of the date of the hearing and the exact whereabouts of Thiago. It seemed that in time Thiago had been sent to live with another sister in the state. SEDH responded to the Dutch central authority’s inquiry of November 30, 2009 on January 5, 2010 stating that the Brazilian Solicitor General had filed for return of the child before the Federal Court of the State of Amazonas. The judge informed the mother about the procedures, but no hearings were scheduled. The Dutch central authority responded to SEDH’s incomplete information requesting to know the exact dates when documents had been filed as well as why there had been such a long delay by SEDH. As of June 2010, they have received no response from SEDH.

Weinstein (8/06)

Mr. Weinstein married a Brazilian woman in 1996 in Pittsburgh, in the United States. Both their son, Paul (1998), and daughter, Anna (2001), were born in Pittsburgh. Both children have Brazilian passports due to their mother's nationality. Throughout the marriage, the wife regularly took the children to Brazil each winter and summer. In June, 2006, the wife left for Brazil with the children, promising to return in August 2006. Mr. Weinstein visited Brazil, as he had customarily done each summer, in July, 2006. About the date of their return, the wife notified him that she would be staying in Brazil with the children. In September 2006, he sought a court order in the United States to establish the childrens' habitual residency, seek their return, and obtain primary custody. His wife was properly notified and had legal representation at the hearing.

In response to the court order in the United States, his wife obtained a court order in Brazil giving her full custody of the children and legitimizing her presence in Brazil with the children. Her attorney cited the 1989 United Nations Convention on the Rights of the Child as evidence. This Convention was never ratified the United States. Mr. Weinstein was not notified of the hearing and did not have legal representation. This order was later nullified under Article 16 of the Hague Convention.

In October, 2006, Mr. Weinstein petitioned the US Department of State Office of Children’s Issues, the designated Central Authority for the Hague Convention, which immediately transmitted the request to the Brazilian central authority, SEDH. He also registered his children and wife with Interpol. Despite providing two valid addresses and multiple phone numbers, SEDH failed to file a case against the wife until July, 2007. Patricia Lamego De Texeira Soares, the coordinator at SEDH, claimed that Brazilian Interpol took that long to locate the children. In March, 2008, Mr. Weinstein was given ten days notice to be in Brazil for a hearing about the case.

In February, 2010, the federal judge in Brazil issued a ruling denying the petition for the return of the children to the United States. The AGU (Advocacia-Geral da União)filed an appeal to this ruling on behalf of Mr. Weinstein in April, 2010.

Mr. Weinstein has been able to maintain a relationship with his children.

Zanger

Sascha Zanger, an Austrian citizen, married Brazilian woman Maristela dos Santos after meeting her in Brazil in 1993. They had two children in Austria, Sophie Zanger and Rafael Zanger. After their divorce, Zanger paid child support of 1300 Euros a month but his ex-wife failed to give him adequate shared custody. Then, in January 2008, she disappeared, kidnapped her children and took them to Brazil. Zanger then made a request for his children's return using the Hague Convention. Under the convention, his children should have been sent to Austria within six weeks of the kidnapping. That didn't happen. He fought in the courts, went to Brazil four times and spent 100,000 euros on travel and legal fees. Though Maristela was located in March 2008 in Rio de Janeiro, the Brazilian courts granted custody to her sister, Geovana dos Santos Vianna and Lílian Vianna. Maristela suffers from mental illness, and her sister was given responsibility of the children by the local family courts in her place. Maristela disappeared again in April 2009, and was only located in June 2009. Meanwhile, a Brazilian court granted a warrant for the children to be located and taken into care, but the warrant was never put into effect, and law enforcement agents failed to act. Just two days after the warrant had been issued, four year-old Sophie was pronounced dead at a hospital in Baixada Fluminense. She had been severely beaten and had signs of cranial fracture, broken wrists, heavy bruising and was also malnourished. Her legal guardian, her aunt Geovana, and her cousin, Geovana's daughter, were arrested and charged with murder. They claimed Sophie had fallen in the bathtub and that Sophie's younger brother had beaten the her. Zanger flew to Brazil refused to leave Brazil until he was given his son back, as well as his daughter's body. However, after the murder, the local family court gave custody of the boy to Maristela's adoptive mother and Zanger had to return to court to demand custody. As of May 2010, Geovana dos Santos and Lílian Vianna remained at liberty.

Zensen (7/04)

In February 2004, Robert Zensen formally authorized his daughter, Maria Carolina's, mother to take her to Brazil, based on a shared parenting agreement that they had negotiated and signed in front of the Superior Court of New Jersey, USA. He trusted that Maria Carolina's mother would comply with the agreement. His daughter has been illegally retained by her mother and has been in Brazil since July 2004 without Zensen’s authorization or approval. Zensen is not asking for custody; he only wants his daughter to spend her school vacation with him, as was agreed. Child support payments were suspended by the Superior Court of New Jersey in 2004, but he does pay voluntarily into his daughter's college savings fund so she can study in the future. Zensen tried to enforce the shared parenting agreement in a Brazilian court, spending over $60,000 (sixty thousand dollars) in six years of court battles, but without being granted any kind of parenting time with his daughter by the Brazilian court.

See also

• International child abduction in Japan
• International child abduction in Mexico
• Child abduction
• Crime in Brazil
• Human rights in Brazil
• AMBER Alert
• Child abduction alert system
• Child Protective Services
• Kidnapping
• Missing Kids Website
• National Center for Missing and Exploited Children
• Trafficking of children
• Take Root
• Brazil – United States relations
• Hague Abduction Convention Compliance Reports

External links

• "Brazil helps kidnap American children". Wall Street Journal. June 17, 2009. Retrieved July 30, 2010.
• "Kidnappings: Little Hope for São Paulo". PBS. August 29, 2006. Retrieved July 30, 2010.
• "Brazil's evolving kidnap culture". BBC News. April 13, 2006. Retrieved July 30, 2010.
• "São Paulo Becomes the Kidnapping Capital of Brazil". NY Times. February 13, 2002. Retrieved July 30, 2010.
• "Success in Goldman Case Unique in International Child Abduction Cases". HG Articles. May 10, 2010. Retrieved July 30, 2010.