Study analyzes impact on Brazilian judiciary of Legal Framework for Early Childhood
Brazil’s Legal Framework for Early Childhood is still in the early stages of being implemented by the judiciary, so there have been relatively minor impacts in terms of guaranteeing all the basic rights of children up to six years of age in the country. Most citations of this legal framework in the country’s courts have so far involved criminal cases. These are among the findings of a study called “A macro-systemic analysis of legal data based on judicial decisions and evaluation of judicial behavior,” whose results were published in the book “Primeira Infância no Poder Judiciário” (“Early Childhood in the Judiciary”).
This study, launched on March 13, was based on a research project carried out by the Diversity and Inclusion Program at Fundação Getulio Vargas’ Rio de Janeiro Law School in partnership with the school’s Center for Technology and Society. The objective was to quantitatively and qualitatively evaluate the impact of the Legal Framework for Early Childhood (established by Law 13,257 of 2016) on Brazilian court decisions in order to identify whether this framework has been incorporated into judicial practice.
To do so, the researchers looked at decisions made by the Federal Supreme Court, the Superior Court of Appeals, the appeal courts of seven states (Acre, Alagoas, Amazonas, Mato Grosso do Sul, Ceará, Rio de Janeiro and Sao Paulo), and four regional federal courts (of the first, second, third and fifth regions). They also had 26 interviews with legal professionals involved in some way with topics related to the Legal Framework for Early Childhood.
Although this legal framework concerns a range of policies, such as health, education, welfare and social assistance, the courts have mainly cited it in cases related to the Criminal Procedure Code. According to the study, most mentions of the legal framework occur in cases involving requests to replace pre-trial detention with house arrest. According to the law, this is a right of pregnant women, mothers with children up to 12 years old, and fathers, if they are solely responsible for children of the same age.
In the Federal Supreme Court alone, such requests account for almost 90% of decisions that cite the Legal Framework for Early Childhood. With regard to all the processes analyzed, most of the decisions are related to drug trafficking (61.42%) and involve only women (73.69%). In addition, the majority of decisions reject requests to replace pre-trial detention with house arrest. This indicates that this legal framework, designed to protect and promote the development of young children, is not yet being applied comprehensively.
The results of the quantitative research also suggest that gender, femininity and motherhood factors can have an impact on how issues involving the Legal Framework for Early Childhood are decided by the judiciary. That is, there are many cases of preventive detention in prison, which the authors argue ought to be converted into house arrest.
In addition, from the interviews, it was identified that the limited application of the legal framework can be attributed to lack of knowledge of the law (still recent when compared to the Children’s and Adolescents’ Statute, for example) and that a personal approach to the theme seems to strengthen its application in judicial practice. At the same time, some of the interviewed professionals indicated the need to provide more specialized training to those who intend to work with the rights of children and adolescents, including on undergraduate courses.
Some interviewees praised the legal framework’s principles and said it represents progress in relation to previous legislation. However, others criticized it due to its lack of clear guidelines on how to apply it. One prosecutor who agreed to participate in the study said that a lack of budgetary provisions may be another reason for the limited application of the law’s substantive elements.
“We hope that this book serves as a basis for advancing discussions on early childhood in Brazil, especially with regard to the legal framework’s impacts on the relationship between motherhood and prison. The aforementioned conclusions are the result of the work of many researchers in different fields of knowledge, who contributed their expertise. We now plan to explore how gender issues are related to the development of these judicial processes,” says Ligia Fabris, the coordinator of the Diversity and Inclusion Program at the FGV Rio de Janeiro Law School.
The book, “Primeira Infância no Poder Judiciário” (“Early Childhood in the Judiciary”), was written by Professor Ligia Fabris of the FGV Rio de Janeiro Law School, Professor Cecília Machado of FGV EPGE, Professor Ivar Hartmann of Insper, a higher education institute in Sao Paulo, and FGV Rio de Janeiro Law School researchers Ábia Marpin, Guilherme da Franca Couto Fernandes de Almeida, Lorena Abbas and Natália de Oliveira Maia.
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