May 27, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization
International parental kidnapping is back in the news (Houston Chronicle, 5/24/18). And the latest case may yet to take its most outrageous turn.
Wealthy Brazilians, Carlos and Jemima Guimaraes were convicted by a jury in federal court of aiding the kidnapping of their grandson, Nico, the son of Marcelle Guimaraes and Christopher Brann. The couple lived with Nico in Houston until the boy was three. That was when Marcelle told Brann she wanted to take the child to visit relatives in Brazil. He agreed to a 20-day stay. That was five years ago and the two are still in Brazil.
Now, you might ask how that could possibly be. After all the Hague Convention on the Civil Aspects of International Child Abduction is clear that signatory states are supposed to make a decision. Needless to say, that hasn’t happened in the Brann case, but it should have. That’s because, at the outset, there was but one issue for the Brazilian court to decide – the child’s country of habitual residence. Given that both parents and the child had lived in Houston all the boy’s life, that shouldn’t have been a hard decision to make.
Having made the obvious call on the residence issue, the next thing the court would have had to decide is whether U.S. courts are capable of ruling on the issues and issuing proper orders. That too should have been an easy decision.
But it seems Brazil doesn’t play by the Hague Convention rules, despite having signed it.
Brazil is among 12 signatory countries cited in a 2018 annual State Department report for persistent failure to comply with the Hague Convention on Civil Aspects of International Child Abduction.
Suzanne Lawrence, a special adviser for children’s issues in the State Department, declined to discuss any specific cases or why the agency had not sanctioned Brazil. But she acknowledged that courts in Brazil do not move promptly. The average span of inaction is nearly six years, according to the annual report.
“The longer these cases go on the more harmful they are to the families,” she said.
In the Brann case, the governments of the U.S. and Brazil both concluded Nico was illegally abducted in violation of civil law, but the federal courts in Brazil have ruled he should remain there because his mother was well settled with family support. That ruling is on appeal.
An attorney familiar with the delays said Brazilian courts have allowed such disputes to drag out for years, allowing the parent in Brazil to request clarifications of orders, while so-called “left behind” parents in the U.S. have little recourse beyond political pressure, if they have the means.
So the courts in Brazil “have ruled that [Nico] should remain there because his mother was well settled with family support.” Huh? That’s precisely contrary to the plain requirements and the plain meaning of the Hague Convention. It makes no sense to sign a convention that requires the return of a kidnapped child to its home country, only to thwart that convention if the kidnapper has settled in and has the support of her family.
But Brann doesn’t just have the Convention with which to fight this war, he’s also got the Sean and David Goldman Act that allows the U.S. State Department to pressure foreign states politically to encourage them to return kidnapped kids. But, like the Brazilian courts, the State Department has apparently not lifted a finger on behalf of Christopher Brann or his son.
The father’s lobbying efforts resulted in a letter last week from the bipartisan Senate Judiciary Committee, including U.S. Senators Ted Cruz and John Cornyn of Texas urging the Trump administration to “use every possible tool” to bring the child back.
Brann is doing everything he can to remain in contact with Nico, but it’s not easy.
Brann turned to the FBI in 2015 after two years of Skype calls and 20-hour trips to the remote resort city, where he was allowed to see the boy only if accompanied by hired guards.
In short, the courts of one country and the State Department of a second, both of which are charged by law with making sure kidnapped children don’t remain so for long, have failed in their duty. Since this is a case of kidnapping that all agree happened, both governments are complicit in child abuse. It was long ago established that taking a child from its home and one parent and keeping it isolated from that parent is abusive. Whatever problems Marcelle and Christopher had, Nico loves and needs both his parents and has been traumatized by his abduction.
And yet the Brazilian wheels of “justice” turn oh so gradually and the State Department sits on its hands.
And that may not be the worst of it. I’ll have more to say on that.