Child Abduction Case Threatens Trade Bill

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On December 17, Secretary Clinton released this statement on the Sean Goldman custody case in Brazil:

“I was pleased to hear that the Appellate Court in Rio de Janeiro has upheld the lower court’s decision that Sean Goldman, a young American boy wrongfully retained in Brazil for more than five years, should be reunited with his father David in New Jersey. We appreciate the assistance and cooperation of the Government of Brazil in upholding its obligations under the Hague Convention on International Child Abduction. And it is my hope that this long legal process is now complete and that the Goldman family will be reunited quickly. They will be in my thoughts and prayers today and throughout this holiday season.”

The next day, the US Embassy in Brazil released this State Department statement expressing disappointment after Brazil’s Supreme Court stopped the father, David Goldman from picking up his son Sean and taking him home to New Jersey:

“The State Department is disappointed that Sean is still unable to be reunited with his father. A key intention of the 1980 Hague Convention on the Civil Aspects of International Child Abduction is the expedient return of children who are abducted or wrongfully retained to their places of habitual residence in order to minimize the human and social cost of international parental child abduction. This cost includes the risk of serious emotional and psychological problems for abducted children, and severe emotional stress and significant financial pressures for the left-behind parent that both Sean and his father will now continue to endure.” (active links added)

The facts of this case are detailed in H.R. 2702 also known as the ‘Suspend Brazil GSP Act’. Excerpts below:

  • David Goldman, a United States citizen and resident of New Jersey, has been trying unsuccessfully since June 2004 to secure the return of his son Sean to the United States where Sean maintained his habitual residence until his mother, Bruna Bianchi Ribeiro Goldman, removed Sean to Brazil.

  • On September 3, 2004, Mr. Goldman filed an application for the immediate return of Sean to the United States under the Hague Convention to which both the United States and Brazil are party and which entered into force between Brazil and the United States on December 1, 2003.

  • Pursuant to Article 12 of the Hague Convention, the judicial authority of Brazil was required to order Sean’s return to the United States ‘forthwith’, customarily defined under international law as within six weeks after an application for return has been filed.

  • On October 13, 2005, the Brazilian court refused to return Sean in contravention of Brazil’s obligations under the Hague Convention even though it found that Sean was a habitual resident of the United States and, pursuant to international law, had been wrongfully removed and retained in Brazil.

  • On August 22, 2008, Mrs. Goldman passed away in Brazil leaving Sean without a mother and separated from his biological father in the United States. Instead of returning Sean to the custody of his father David, Mrs. Goldman’s second husband, Joa.AE6o Paulo Lins e Silva, petitioned the Brazilian courts for custody rights over Sean.

  • On September 25, 2008, Mr. Goldman filed an amended application under the Hague Convention against Mr. Lins e Silva for the return of custody over Sean.

  • On June 1, 2009, a federal court judge in Brazil ordered that Sean be turned over to the United States consulate in Rio de Janeiro and returned to his father on June 3, 2009. The court further ordered that, following a 30-day adaptation period in the United States, Mr. Goldman be given full custody over Sean.

  • On June 2, 2009, one Brazilian Supreme Court justice suspended the order of the first level of the Federal Court on the basis of a motion filed by the Progressive Party, a small Brazilian political party, that objects to the application of the Hague Convention in Brazil. This suspension must now be heard by the full Supreme Court, could further delay the Goldman case for months, and could prevent the return of any other abducted children to the United States.

The bill also points out that Brazil is a primary beneficiary under the Generalized System of Preferences program. In 2008, Brazil received duty-free status under the GSP for United States imports totaling $2.75 billion. This bill was last referred to the House Committee on Ways and Means on 6/4/2009 but has shown no further development.

Early this year, the State Department issued its 2009 report of the Office of Children’s Issues on compliance with the Hague Convention on the Civil Aspects of International Child Abduction. The report evaluated convention partner countries for compliance in three areas: Central Authority Performance, Judicial Performance, and Law Enforcement Performance. Seven countries are evaluated as “Demonstrating Patterns of Noncompliance:” Brazil, Chile, Greece, Mexico, Slovakia, Switzerland, and Venezuela.

Brazil a
cceded to the Convention on 10-19-1999. Its date of entry into force with the United States was on 12-1-2003. The 2009 report lists a pattern of non-compliance by Brazil in all three areas. Further the report states that:

“[T]he Brazilian courts continue to show a troubling trend of treating Convention cases as custody decisions, and often deny Convention applications upon finding that the children have become “adapted to Brazilian culture.” Six abductions from the United States initially reported prior to April 2007, three of which were initially reported in 2004, remain unresolved.[…] Our experience indicates that it takes many months before a court receives a case to analyze and many more months before a court issues a decision. The USCA observed during the reporting period that Brazil’s courts exhibit widespread patterns of bias towards Brazilian mothers in Convention cases.”

Last Friday, Senatus reported that Senator Frank Lautenberg of New Jersey placed a hold on a bill that would allow Brazil and other countries to export some products duty-free to the United States.

I imagine that the bill reported here is the Generalized System of Preference that is set to expire in a couple of weeks. The 110th Congress extended the GSP for one year through December 31, 2009 (P.L. 110-436); so it remains a legislative issue for the 111th Congress.

H.R. 4284
: “To extend the Generalized System of Preferences and the Andean Trade Preference Act, and for other purposes” was introduced in Congress in early December. On Dec 14, 2009 the bill was passed in the House of Representatives by voice vote (a record of each representative’s position was not kept). The bill was received in the Senate on the same day with no further action todate.

The U.S. Generalized System of Preferences (GSP) was established by the Trade Act of 1974 (19 U.S.C. 2465; Sec. 505) and provides preferential duty-free entry to more than 4,650 agricultural and non-agricultural products from 131 designated beneficiary countries and territories. In 2007, the top six beneficiary countries ranked by import value — Thailand, Argentina, Brazil, India, the Philippines, and Turkey — accounted for the majority of agricultural imports under the GSP. Brazil and India accounted for nearly one-fifth of agricultural imports under the program. (See the CRS Report on the GSP dated November 10, 2008).

In a statement last year, the American Chamber of Commerce in Brazil supported retaining Brazil’s eligibility status as a GSP beneficiary country: “The program has allowed businesses based in Brazil to become reliable suppliers of eligible duty free products for use in the United States. This mechanism grants a limited tariff exemption to US companies on 3,357 products from Brazil. In 2007, US companies imported from Brazil over US$ 3.4 billion of GSP covered products. As a result, US companies saved over US$ 100 million – an amount they would otherwise have had to pay if Brazil was not a beneficiary of the program.” It points out that “GSP has contributed positively for the development of Brazil by means of export promotion.”

An AP report quotes Sergio Tostes, attorney for Sean’s stepfather Joao Paulo Lins e Silva, as saying that the case should never have become a political battle. “This is not a fight between two countries,” Tostes said. “This is just the pursuit of the truth and the pursuit of what is in the best interest of the boy.”

How much more complicated can this get? The stakes are high: a nine year old boy separated from his natural father since 2004, 131 countries with duty free tariffs until end of the year, billions in trade, and the reputation of one country that refuses to abide its international obligations pursuant to the Hague Convention.

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