BRAZIL Law and Practice Contributed by: Adriana Chieco, Camila Ieracitano Macedo Maia and Mabel Tucunduva Prieto de Souza, Chieco Advogados
3.5 Media Access and Transparency in Children Proceedings Judicial proceedings involving children and ado ‑ lescents, particularly where they relate to custody, adoption, guardianship, juvenile offending, paternity proceedings, domestic violence, abuse, or any other matter directly affecting a minor, are conducted under confidentiality (ie, not open to the public). Accordingly, where the media become aware of such proceedings, they must not publish information that could identify the child or adolescent, or disclose details of the case. Should they not comply, they may incur civil, administrative and criminal liability. Under Brazilian law, proceedings involving children and adolescents are generally heard in private and are subject to statutory confidentiality, and the publi ‑ cation of any information that could identify a child or adolescent in connection with judicial proceedings is prohibited. In practical terms, the court file is restrict ‑ ed-access and any material that becomes publicly accessible (eg, decisions disseminated in databases) should be anonymised or redacted so that the child cannot be identified. Parents or legal guardians may apply for confidentiality/anonymisation measures by a petition in the case requesting that: • the proceedings be formally made confidential if that has not already been recorded; • access to the electronic case-management system be limited to the parties and their lawyers; • specific documents or information be sealed where particularly sensitive; and • any public extracts, certificates or published decisions be issued only in an anonymised form, and where there is an imminent risk of exposure (including threatened media publication), urgent protective relief may be sought on an expedited basis.
litigation, or during court proceedings, which may be stayed while negotiations take place. ADR Methods and Penalties for Non-Compliance The Brazilian Code of Civil Procedure places strong emphasis on consensual dispute resolution and pro ‑ vides that judges must encourage settlement between the parties at any stage of the proceedings, preferably with the assistance of court-appointed conciliators and mediators. In family disputes, there is an express statutory provision that all reasonable efforts must be made to achieve an agreed resolution, including the listing of a mediation/conciliation hearing before the statement of defence is filed. If the parties fail to attend the hearing, they may be sanctioned for con ‑ duct deemed contrary to the dignity of justice, includ ‑ ing a fine of up to 2% of the economic benefit sought or the value of the claim, as determined by the judge. Status of Out-of-Court Agreements An out-of-court settlement related to minor children would be a faithful register of the parties’ will and would be useful if any discussion arises, but would not be directly enforceable in a case of non-compliance. It is recommended that such agreement be submitted to court approval, by inviting the Public Prosecutor’s Office to intervene and provide its opinion on the par ‑ ties’ agreement. Requirements to Engage in ADR There is no obligation on the parties to reach agree ‑ ment, but the procedural framework strongly encour ‑ ages the use of appropriate dispute-resolution mech ‑ anisms. In family disputes, a conciliation or mediation hearing is almost invariably listed at the outset of the case. Where consensual resolution is attempted, whether pre-action or during proceedings, the law requires compliance with core principles, includ ‑ ing the mediator/conciliator’s impartiality, equality of arms between the parties, informality, party autonomy, good faith and, above all, confidentiality. As a general rule, statements, documents, concessions and set ‑ tlement proposals exchanged in mediation/concilia ‑ tion are confidential and may not be relied upon as evidence in subsequent contested proceedings if no settlement is reached.
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