The way the Brazilian justice system deals with the rights of children and adolescents has involved challenges and controversies in recent years. Faced with this situation, the FGV Sao Paulo Law School carried out a study about these rights. The study produced the largest database on this subject in the country, by analyzing all judicial decisions by higher courts in this area for more than 30 years (from the promulgation of the Constitution in 1988 until 2019) and how they have interpreted the constitutional principle stating that the best interests of children and adolescents must be the “utmost priority” of families, society and the state.

In all, more than 12,000 court cases involving children and adolescents were analyzed. That included 474 decisions made collectively by the Federal Supreme Court, 3,664 decisions handed down by individual Federal Supreme Court justices and 8,408 collective decisions by the Superior Court of Appeals. All the data was compiled in a database, which can be accessed free of charge on the FGV Sao Paulo Law School’s website.

On this website, you can also find articles, reports and videos about the project, as well as a publication that originated from the results of the research. A book titled “A prioridade absoluta dos direitos de crianças e adolescentes nas cortes superiors” (“The utmost priority of the rights of children and adolescents in the higher courts”) was recently launched at an event at the main office of the National Justice Council in Brasilia, in the presence of many children’s judges from throughout the country.

The study was conducted by the FGV Sao Paulo Law School’s “Supreme Court on the Agenda” research group, which is dedicated to researching and analyzing the Federal Supreme Court and its decisions. To carry out this project on the utmost priority of children’s rights, the research group received funding from the Alana Institute, whose mission is to defend the rights of children and adolescents.

Building the largest database on children’s rights in Brazil

Professor Eloísa Machado de Almeida of the FGV Sao Paulo Law School, who coordinated the study, explains how the database was constructed. “We looked at the cases using a new classification system. We debated how to classify each of the lawsuits based on the merits of the decisions and we were able to identify the most important findings and those that needed further investigation,” she says. According to her, the greatest benefit of this research is being able to look at this large set of lawsuits as a map capable of demonstrating how the courts have been provoked and reacted to demands regarding the rights of children and adolescents over the last 30 years.

The researcher reiterates that she doesn’t know of any other study on this topic with the same size and breadth. “We looked at each case from a specialized perspective of children’s rights and built categories of themes and sub-themes that explain the trajectory of how decisions are made,” Almeida says.

The researchers investigated all the decisions that mentioned the words “children” and “adolescents,” rather than searching for “utmost priority,” understanding that an interpretation of utmost priority may not be explicit but may still be essential for resolving a specific case. “When building the database, we categorized the decisions in order to understand what each of them expressed about the positions of these courts,” says Luiza Pavan, a researcher who also worked on the project.

To create the database, Almeida points out that no software or search algorithm was used. Instead, the researchers did the exhaustive and qualitative work of analyzing each of the decisions to put together the database. “We felt that our specialized scrutiny would bring more benefits to the qualitative research,” she says.

Children’s and adolescents’ rights

In investigating how the Federal Supreme Court and the Superior Court of Appeals have interpreted “utmost priority” regarding the rights of children and adolescents, Pavan emphasizes that this principle is designed to uphold fundamental rights and the full exercise of the social citizenship of children and adolescents.

She also points out that it is important to bear in mind that the Federal Supreme Court and the Superior Court of Appeals apply utmost priority when judging these cases, but it may be used in a subverted way in some situations. “For example, when it comes to legal disputes seeking to increase the number of daycare places, children’s interests are given utmost priority, but this changes when we look at criminal cases, where utmost priority is used as a justification for greater restrictions on rights,” the researcher says.

According to Pavan, this subversion of the rights of children and adolescents prevents this type of case from being dealt with properly. In her view, this context leads to a departure from Article 4 of the Children’s and Adolescents’ Statute, which states that children and adolescents should be treated by society, and especially by the public authorities, with utmost priority, especially in the formulation of public policies. The same guideline is set out in Article 227 of the Constitution.

“Many judges believe that internment is the best response if an adolescent has committed a serious crime. When we look at cases over the last 30 years, we see that judges defend this measure because these adolescents are in a context of vulnerability. When they appear before a court, children and adolescents are treated from a criminal point of view, and not from the point of view of the state’s obligations in terms of public policies,” the researcher says.

Historical weight and future prospects

“From the response given by judges to the demands of children and adolescents, it was possible to reflect on how utmost priority is interpreted,” says Almeida. The researcher also points out that this context may be linked to a historical factor, which concerns the way in which criminal cases involving children and adolescents were judged by the Brazilian courts prior to the present constitution. She states that this old, conservative treatment persists to this day.

“At that time, the legal treatment was internment for any serious crime. When we see how the courts have been dealing with these cases, we can see a continuation of the model predating our present constitution,” she explains.

Fellow researcher Ana Laura Barbosa says that all empirical research, while elucidating something from the past, also shows a picture for the future. “Showing how the courts have dealt with these cases in recent decades can help transform the way they look at these criminal cases involving minors. From this perspective, it is possible to invest in public policies that keep young people away from crime,” she says.

Most frequent cases

According to the study, the most frequent cases involving children and adolescents are related to rape of a vulnerable person, child pornography, indecent assault and sexual exploitation. At different points in time, it is also possible to see an increase in different types of legal proceedings. “Between 2018 and 2019, there was an increase in the number of cases brought before the courts in relation to judicial requests for mothers to be able to serve house arrest, in order to look after their children at home,” Pavan explains.

Other cases, such as those involving access to daycare, are also examples of waves of decisions in certain periods. In this sense, Almeida reiterates that although the project analyzed court decisions in the last 30 years, this is not a dated study.

“This study provides a very broad picture of how children’s rights have been asserted in the courts. Macro-movements of litigation related to children are issues that have not yet been overcome in our society, which is why it is important to highlight them,” she says.