Defense for Sean’s permanence is passional

by Brazilian Federal Judge Roberto Wanderley Nogueira
27 April 2009

Consultor Juridico published the following: “The Minister of the Secretariat of Human Rights, Paulo Vannuchi, defended this Wednesday (4/22), in a public hearing at the Commission of Human Rights and Minorities at the House of Representatives, the permanence of boy Sean Bianchi Goldman with his Brazilian family, as long as the biological father is allowed to visit whenever he wishes to do so.” [Link]

It’s hard to believe that, after an avalanche of information brought by national and international press about this subject, the Brazilian Central Authority, as defined by the Convention on the Aspects of International Child Abduction, signed in Hague and of which Brazil is signatory, preach now a thesis at least kaleidoscopic for the outcome of a episode particularly dramatic and sprinkled by subtlety, starting with a plot that seems to be of a soap-opera to guarantee the entertainment of the improvident, the xenophobic and the inquisitive.

I’ll go straight to the point: as Central Authority, the agent of the defendant State has the duty of work, by itself or by the intervention of intermediate agents, among which the Administration of Justice itself – however not necessarily -, in the sense of making return, immediately, the child that has been subtracted from his habitual residence abroad and/or to which he/she is not allowed to return, remaining, by illegal retention, in national territory, due to the initiative of a relative, usually one of the parents that enforces, bluntly or concealed, parental alienation on the minor who is object in this dispute that the International Law considers with rigor, and rigorously disciplines it, imposing well-defined consequences against which no passional interpretations can be applied.

All the passionality involved in the species is sufficiently included in the regiment of the Standard Convention, which also exhaustively establishes its variables. It should not be applied to this case the “tropicalization” of the demand when it demands something from the Brazilian [defendant] State .

Well, if it’s indeed a fact that the Minister of the Special Secretariat of Human Rights of the Presidency of the Republic, under a manifestation at the House of Representatives, conspires against the superior intentions of the Hague Convention, to which respect his authority addresses with the intent of his own promotion, it’s evident he should step down from his post, since to prevail his word – the case has or hasn’t been subjected to the Administration of the Brazilian Justice, superimposed to the Justice Administration of the requesting State (backwards direct cooperation) – it seems the Brazilian State has betrayed, unilaterally and implicitly, such Convention.

After all, it’s the Central Authority we’re talking about. It’s an organ directly connected to the Presidency of a State-par of the Hague Convention which is trying to explain, as unusual as it may seem to the legal conscience, that in our nation such Convention does not prevail due to other unfamiliar grounds.
To prevail this explanation, on the other hand, the Brazilian government should send a memo to the Dutch Ministry of Foreign Affairs, Depositary of the referred International Convention, in the same way and withdraw, immediately, from the Group of Nations that are part of it.

It is, thus, incompatible the permanence of the current minister who performs the functions of the Brazilian Central Authority, as predicted in the Hague Convention, while the country equally participates in this international pact.

One must remember that the case of the American boy is not the only one. Other cases are being discussed, with other States petitioning the Brazilian Central Authority for the return of their then residents. It is repeated here the irrelevance of the argument related to the theory of nationality, since for the Standard Convention, while having multiple citizenships, the minor who resided in determined national territory must return so that there [habitual residence] is where the rights of custody and other aspects will be decided.

In a recent past of Italian Political History, there was a phenomenal thinker called Leonardo Sciascia,1 who fought against the establishment through its contradictions and dangerous liaisons [Mafia]. He used to say the grotesque lived in familiar terms with formality, in a way that all did well in their prepotency and vanity, not without commitment of ethics of traditional values and virtues of the legal system.

It’s evident that the gruesome aspects of the contemporary history of the Mediterranean country cannot be simply confused with our own reality. However the Latin verve that caused so much hostility to the contemporary legal system, despite the general intuition for this phenomenon from the Ancient Classic Romans, is safely, the same, there and here, with a lag of at least 100 years.

Brazil historically has the advantage of leaping over this hiatus of political timeline onto an atmosphere of democratic completeness and legal safety without going through the horrors that Italy lived in the past.

Thereunto, the instances of Politcial Power in the country need to tune their speeches and find maximum consistency in what they say and what they do. Without this attitude, it will not deserve the respect and credibility from the nations, even when internally the misinformed, ignorant crowds break into applause.

1: Leonardo Sciascia (1921 – 1989) Was a councilor in Sicily, a deputy in the national assembly and, later, a member of the European Parliament. Trained as a teacher, it was only later in life that he devoted himself to writing about Sicily and the Mafia. “Sciascia wrote of his unique Sicilian experience, linking families with political parties, the treachery of alliances and allegiances and the calling of favours that resort in outcomes that are not for the benefit of society, but of those individuals who are in favour. Sciascia perhaps, in the end, wanted to prove that the corruption that was and is endemic in Italian society helps only those who are part of the secret societies and loyalties and the political classes.” — Friends of Leonardo Sciascia Society (Italian)

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