A violência que antecede o sequestro: a aplicação da Convenção de Haia em sequestros de menores de idade no contexto da violência contra a mulher brasileira

Abstract

This study deals with the abduction of a minor, the son of a Brazilian mother and a foreign father, in which the mother herself is the abductor, under the aegis of the Convention on the Civil Aspects of International Child Abduction, when this is justified by a context of domestic violence. The objective is to analyze the position of the Superior Court of Justice (STJ) in the application of the Hague Convention in cases of international child abduction, as described above. The specific objectives were to understand international cooperation and the Hague Convention, as well as how it is implemented in the signatory States; to discuss the exception of grave risk, provided for in article 13, “b”, addressing how the aggression suffered by the mother affects the configuration of risk to the child itself; and to analyze the case law of the STJ. Regarding the methodological development, the dialectical approach was adopted, and the monographic, historical, sociological and case study methods were adopted as procedural methods, using bibliographic and documentary research techniques. The main conclusion highlights the need for a sensitive and careful analysis by the Judiciary, which takes into account the direct and indirect risks arising from the environment of violence, so that this may constitute a serious risk to the child, should it return. In view of this, it was observed that the STJ has indicated positions that indicate an evolution in sensitivity to this reality, recognizing that, in the face of robust evidence indicating such risk, violence — even if not directed directly at the child — is sufficient to justify non-restitution, under the terms of article 13, “b”