The search for conciliation is a way to reestablish the commitment of parents in maintaining the care of their children
*Renata Bento and Wellington Vilela de Araújo
[email protected]
The Advocacy General of the Union (AGU) seeks to consolidate in the Institution the practice of conciliation in the resolution of conflicts foreseen in the Hague Convention of 1980, involving the international abduction of children. In 2021, 13 international kidnapping cases were resolved through conciliation. What can be considered an important step to avoid the wear and tear of everyone involved in this conflicting scenario. Thinking along these lines, AGU is open to a meeting between Law and Psychology.
The one who separates is the conjugal couple, the parental couple is forever. The search for conciliation is a way of reestablishing the commitment of both parents in maintaining the physical and psychological care of their children and, based on this, finding possible solutions that favor the development of the children and that maintain the parental role.
Incidentally, the Hague Convention, to which Brazil is a signatory, establishes that Member States must guarantee the immediate return to the habitual residence of the illegally detained child, as a way of promoting and guaranteeing their best interests. In the country, it is up to the Attorney General’s Office to act with the objective of complying with the international treaty to which the Federative Republic of Brazil adhered, which imposes a rule of jurisdiction according to which the custody of children must be discussed in the country of habitual residence.
Faced with this question, would the Federal Court have the competence to ratify agreements presented when their purpose goes beyond the issue of returning the child’s habitual residence to the State or maintaining the child in the territory of the requested State? What are these other objects that are supposedly beyond the purview of the Hague Convention? These are questions, for example, that concern the type of custody, amount of alimony, right to live together, possibility of traveling on school holidays with the other parent and even the age at which the child can choose who to live with.
For the Federal Justice Council, an agreement, to guarantee coexistence with both parents, represents the main purpose of the 1980 Hague Convention. The Hague, since this way will result in greater effectiveness of the solutions obtained by consensus.
The insecurity and uncertainties that permeate a process hinder the emotional development of minors, because they are caught in the crossfire. It is necessary to encourage the composition of agreements, especially when dealing with disputes involving children. The child unable to defend himself is the one who will suffer the greatest consequences of an unsuccessful marital separation, and the time it takes for the judicial resolution.
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It is important to highlight that the Federal Court was created to prosecute and judge any process in which the Union is a party or interested. Thus, if the Union is interested in ratifying the agreement, it is certain that it is up to the Federal Court to analyze the case, under penalty of express violation of art. 109 of the Federal Constitution.
Furthermore, as the approval of the agreement is a condition for closing the request for direct passive assistance sent by the State of habitual residence, it is beyond doubt that the Federal Court will analyze and judge it, under penalty of violating art. 34 of the Code of Civil Procedure.
*Renata Bento – Psychoanalyst, Expert and Judicial Technical Assistant
*Wellington Vilela de Araújo – Union Lawyer
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