A proteção aos direitos da criança pelo estado brasileiro em casos de subtração internacional: o (des)cumprimento da Convenção da Haia de 1980 na relação com os Estados Unidos

Abstract

This Dissertation aims to evaluate the performance of the Brazilian State in complying with the Hague Convention of 1980 (HC80), through the action of the Central Authority and the Judiciary, with the intent to protect the rights of children in cases of international abduction, based on the relationship between the Brazilian and US Central Authorities. This Convention aims to protect children unlawfully removed from their State of habitual residence to a foreign State (and to regulate transnational visits) in family disputes over the right of custody, establishing norms of International Legal Cooperation. In this sense, it starts from the approach of the HC80 as a treaty on the best interests of the child, to correlate with the Convention on the Rights of the Child (CRC), of 1989, and complement it, seeking to preserve the right to family and community life. The Brazilian State, Contracting Party of both conventions, assumed the commitment before the international community to safeguard the child, operating through the Federal Central Administrative Authority and the Federal Justice. However, Brazil's performance in International Child Abduction is not well evaluated internationally, so it is formally appointed by the Central Authority of the United States of America (USA) — the State that most cooperates with Brazil in the matter — as a State that does not comply with the Convention from The Hague. This circumstance warrants attention as it negatively exposes the Brazilian work in International Legal Cooperation and defense of the rights of children, who need special treatment considering their condition of development and vulnerability. The general objective, therefore, is to investigate, based on data from the Brazilian and US Central Authorities, the behavioral pattern of the Brazilian State in complying with the HC80 and, indirectly, CRC, with a focus on the relationship between Brazil and the United States. Methodologically, the qualitative-quantitative, historical and hermeneutic methods, inductive approach and technique of bibliographic and documentary research are used. It is concluded by the growing improvement in the performance of the Brazilian State in the application of the Hague treaty with the United States and the consequent protection of the child, exponentiated by Brazil's tendency between 2016 and 2021 to have resolved more passive cases than it received, but still insufficient, given the persistence of extreme delays in judicial decisions, there is a need to invest in consensual conflict resolution mechanisms and the creation of a national law that meets the specificities of the treaty. In addition, US failures and inconsistencies were observed regarding active cases in Brazil.