BackOn Wednesday, 13 November, at the National Congress, the Federal Public Defenders’ Office (DPU) called for greater recognition of the plight of women who, as victims of domestic violence, are accused of international child abduction. Federal Public Defender Daniela Brauner participated in two public hearings held at the Federal Senate and the Chamber of Deputies, addressing the application of the Hague Convention in cases where Brazilian mothers return to Brazil with their children after fleeing domestic violence.
Speaking in the Senate, Brauner highlighted the importance of viewing these women victims, not abductors. The Hague Convention, signed in 1980, categorises international child abduction as the removal of a child from their country of habitual residence without the consent of the other parent or custodian. However, the Convention does not adequately account for situations in which mothers return to their home country to escape domestic violence perpetrated by the other parent.
Brauner emphasised the necessity of adopting protective measures to ensure that the legal framework does not result in the permanent separation of children from their mothers, who are often their primary caregivers.
“There is no way to determine the child’s best interests without considering the mother-child bond,” Brauner stated. “Any decision that leads to the permanent or prolonged separation of mother and child contravenes the principle of prioritising the child’s best interests. Consequently, the immediate return of a child is not always an appropriate application of the Hague Convention, as it may overlook critical aspects of the child’s development.”
The “Hague Mothers”
At the Women’s Rights Commission of the Chamber of Deputies, Brauner once again advocated for an interpretation of the Hague Convention that is better suited to the Brazilian context. She highlighted cases involving children separated from their mothers despite evidence of domestic violence.
Raquel Cantarelle, a Brazilian mother of two daughters aged 4 and 6, provided testimony. Despite presenting proof of domestic violence in the country of her former husband, her children were forcibly returned to him in Ireland by the Brazilian government.
The DPU is representing this case before the Inter-American Court of Human Rights, alleging violations by the Brazilian government against Cantarelle and her daughters. Cantarelle recounted how armed Brazilian police officers removed her children amidst their screams and cries.
“We cannot disregard the reality that, in cases where mothers and children face danger, a forced return may perpetuate abuse and constitute a violation of human rights,” Cantarelle urged. “I implore you to reconsider how this Convention is applied in our country, ensuring that exceptions such as those provided for in Article 13 are taken seriously. Each judicial decision must be humane, prioritising the protection of those who need it most – the children.”
The DPU’s Recommendations
In an expert opinion issued by the DPU’s Working Group for the Assistance of Women, the institution recommends adopting the following protective measures in cases of international child abduction accusations:
- Check for occurrences of domestic violence, including physical, psychological, sexual, financial, and moral abuse.
- Investigate the legal status of international child abduction as a criminal offence in the child’s country of habitual residence.
- Ensure there are provisions for safe migratory status for mothers returning to a foreign country.
- Evaluate access to justice, considering the financial costs of custody proceedings and the availability of free legal aid and appropriate judicial authorities.
- Facilitate the return of the child accompanied by the primary caregiving parent, to avoid abrupt separations.
- If the return with the mother is deemed unfeasible, ensure the other parent consents to maintain contact with the mother, establishing a visiting schedule until the local judiciary determines custody arrangements.
Source: Federal Public Defenders’ Office, Brazil
