Habitual Residence – Art. 3
The Appellate Court (Tribunal de Apelaci?n de la Ni?ez y la Adolescencia) ruled that the habitual residence of the child, prior to his wrongful removal, was in the Federal Republic of Brazil. The documentation produced showed that the child had been born in Brazil, had been registered in said country and had remained there during his short life. Moreover, he had entered a nursery school, had been vaccinated in a health centre and held a health insurance card issued in Brazil. In addition, a lease contract for an apartment signed by the mother in that country was in force.
Removal and Retention – Arts 3 and 12
The mother argued that there had not been any wrongful removal or retention; the removal had taken place with the father’s authorisation and the child was in Paraguay legally since she was Paraguayan and she was not married to the father. The Court considered that the nationality and marital status of the mother were not determining factors to conclude if the removal or the retention of the child had been wrongful or not. In order to determine the wrongfulness of the removal, the requirements established in Art. 4 of the Inter-American Convention on the International Return of Children, which provide that the removal or retention of a child is considered to be wrongful when it is carried out in violation of the rights exercised by the parents, guardians or any institution, immediately before the act, in conformity with the law of the State where the child is habitually resident, should be analysed.
The Court ruled that there had been wrongful retention, since the mother and the child had travelled with an authorisation, but had not returned when that authorisation had expired.
Rights of Custody – Art. 3
The Court considered that the rights of custody were exercised jointly by both parents, regardless of them being married or not and living together or not, as established under the law of the State in which the child was habitually resident (Art. 1634 of the Civil Code of Brazil).
Consent – Art. 13(1)(a)
The Court considered that the father had not consented to the permanent residence of the child in Paraguay and concluded that his filing an international application for the child’s return represented that he had not acquiesced in the retention of the child in said State.
Human Rights – Art. 20
The mother argued that the return of the child would violate the fundamental principles of the State of Paraguay, which established that, in case of conflict, the rights of the child should prevail, in accordance with the Childhood and Adolescence Code of Paraguay, which provides that a child who is less than five years old should remain with the mother. The Court ruled that the return of the child was not contrary to any fundamental principle of the State of Paraguay, nor to the best interest of the child. On the contrary, the Court considered that the international instrument signed by Paraguay, whose object is to avoid the harmful effects caused by wrongful international removal or retention of children, should be applied.
Procedural Matters
Approximately three months went by from the application for return filed by the father before the Central Authority of Brazil to the judgment of the Court.
The Inter-American Convention on the International Return of Children was applied to judge this case.
The mother argued that the evidence she had offered had not been considered by the Court, therefore violating her right to state her case in trial. The Appellate Court sustained that the First Instance Court has the authority to dismiss the evidence it considers to be irrelevant to the settlement of the conflict, based on the urgent nature of the procedure of international return. For that reason, the Inter-American Convention on the International Return of Children establishes a special procedure in Arts. 10, 12 and 13.
The mother argued that the application for return had not been filed pursuant to the requirements of the established legal procedures. The Court ruled that the father had filed the application correctly under Art. 8 b) of the Inter-American Convention on the International Return of Children, which establishes that one of the means through which an application for return may be filed is before a Central Authority.
