A comparative look at divorce, laws and the best interests of the child after parental separation in Brazil and England

comparative


INTRODUCTION
Defining and evaluating 'the best interests of the child' principle (BIC) in a post parental separation scenario is a complex task for legal actors (judges, prosecutors 1 , psychologists, social workers and lawyers) working on cases in which the parents have separated and a decision regarding with whom a child is to live has to be made. Decision-making is complex because ensuring the BIC in child custody and access 2 after parental separation involves moderators that can vary according to two main interdependent layers: (1) legal constraints; and (2) legal processes. The main constraint in such cases is the BIC principle itself (what it is; what encompasses it; how to evaluate it) and the scenario in which such decision will be made (child's idiosyncrasies; family crisis and development; legal actors' personal views on 'legal practice', 'divorce', 'family' and 'child'). On the other hand, 1 Only in Brazil as English prosecutors do not act in such cases.

2
Within the English Law concerning private law cases, 'custody' is not referred to anymore. Since Families Act 2014, the correct term is 'child arrangement' and it addresses issues regarding the child after the breakdown of the parental relationship. Thus, 'custody' is used in this paper as a general and uniform term to designate, in both countries: a) where the children will live; b) how much time they will spend with each parent; and c) access to the child: arrangements for parents to visit/see their children after parental separation.

FAMILY LIFE CYCLE, DIVORCE AND CRISIS: (MIS)FITTING THE CHILD'S WELFARE
The Family Life Cycle (FLC) is a model that encompasses the divorce as a phase in some families' developmental course. The way a family goes through this phase will shape the divorce outcomes that impact the family's and child's welfare, and how a family will cope. Usually, when the family cannot cope well, that is, they cannot understand and solve their own issues regarding the divorce, they go to the family court to seek for help -if the dispute becomes acrimonious, it can impair the BIC (MENDES; ORMEROD, preprint).
FLC is a normative developmental model created by McGoldrick, Preto and Carter (2014).
The authors established some expected stages throughout the family developmental course. Each stage represents a crisis moment for the whole family because it requires changes, reorganisation and re-shaping within the family interactional dynamics and roles.
There are seven stages of family development: (1) leaving home -emerging as young adults; (2) the joining of families through marriage/union; (3) becoming families with young children; (4) being families with adolescents; (5) being families in midlife -launching children and moving on; 3 Despite legal and definitional differences, this paper considers 'divorce' and 'parental separation' as the same thing: the relationship breakdown. Thus, from here on, both will be referred only to parental separation, in which divorce is included. Those are expected stages that present specific challenges to the family experiencing them.
But there are also unexpected stages that equally comprise FLC, that are, thus, part of the family development. One of these unexpected stages is divorce. It is an unexpected stage that deviates from an expected developmental course and destabilises the family system (like any other stage) due to changes, gains, and losses throughout the process of overcoming that stage.
The biggest challenge for the ex-couple is to put efforts towards accepting and adapting their changed interactional pattern and roles. During a divorce, the biggest challenge is to separate marital issues (e.g., frustrations, bitterness, disappointments, cheating, assets and financial issues) from parenting ones -e.g., affection, protection, upbringing, support, parental limits and looking after MENDES; BUCHER-MALUSCHKE, 2017;ROSMANINHO, 2010). Usually, it happens when the ex-couple, after formal separation, cannot go through a process of 'emotional digestion' and reorganisation of their lives, roles, identity and feelings regarding the ex-partner and the breakdown itself. Thus, they cannot have an 'emotional divorce' so they engage themselves in a destructive divorce.
When an ex-partner cannot emotionally divorce themselves from the other partner, it is likely that they may stay immersed in that relationship and its psychodynamic symbology for many years  ;FÉRES-CARNEIRO, 2010). These are complex issues because they can lead the family cyclically to dysfunctional and unstable developmental transactions that, in turn, increase the chances of conflict, violence and disruptions (GREENE et al., 2012;SHIBUSAWA, 2012). This dynamic can lead, not just to intractable cases, but to 'endless cases' that present multiple or cyclical applications to the family court. This reveals an important layer of uncertainty in child custody cases: unconscious motivations. The authors suggest that neither parents nor legal actors are fully aware of this phenomenon.

MAGALHÃES
This scenario can lead to expressions of violence (e.g., physical, psychological, verbal, financial) between the ex-couple, which can affect children (COSTA et al., 2009). The former couple cannot recognise their responsibilities in the conflict and both of them tend to lay blame and look for allies COSTA, 2017;MACIEL;. Their first target for an alliance is often children, which can be 'triangulated' and/or 'parentified' in parental conflicts, as described below.
A child is triangulated when the stress, anxiety and anguish caused by the parental conflict reaches an unbearable level, leading the children to get involved in the conflict, to mediate it in an attempt to reduce the tension between the parents and within the family system (JURAS; COSTA, 2017; MENDES; BUCHER-MALUSCHKE, 2017). A common outcome of triangulation is to have the child allied to one of the parents and against the other. Hence, a high level of parental conflict tends to lead the child to pick one side. Triangulations and collusion dynamics are frequent in child custody cases. These dynamics are not always dysfunctional or even permanent, as they might be just a way the family has to navigate and adapt itself throughout transitional developmental stages, especially very stressful ones (EMERY, 2012;COSTA, 2017;BUCHER-MALUSCHKE, 2017). In this sense, some triangulations can even benefit the family. The problem is when the dynamic of these triangulations loses its transitional and adaptive character and becomes a long-lasting transactional structure within the family, highlighting rigid oppositions that increase tension between the family members. This can lead to coalitions and inflexible loyalties that impede the family to keep its functional development JURAS, 2021;BOWEN, 1991;COSTA, 2017;MINUCHIN;COLAPINTO;MINUCHIN, 2006).
A child is parentified when they display behaviours that would be expected from parents.
Usually, it happens when siblings have to look after each other because the parents are so involved in their conflict that they cannot properly parent their children.
Both triangulation and parentification dynamics can impair the child's interests and psychoemotional welfare (MENDES; BUCHER-MALUSCHKE, 2017). They can make parents blind to P á g i n a | 100

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REVISTA DA FACULDADE DE DIREITO UFPR | CURITIBA, V. 66, N. 2, P. 95-126, MAIO/AGO. 2021 | their child's needs and welfare, especially when they over-focus on the conflict and litigation, even using children to increase and keep the dispute going. The dynamics are associated with destructive divorce and are set as an attempt to avoid family breakdown and the next development phase, which is parental separation. Any stage in family development represents a crisis moment, not only due to all the changes that are going on, but also because family members may be afraid of changes that can lead to the family's end. In a divorce, this fear and the strategies used to cope with it can aggravate the situation, as there is a sense that divorce means the end of the family. That's why some families go through a destructive divorce. By means of litigation and successive disputes in the court, the ex- As seen, the FLC and all the developmental issues involved in a parental separation can portray a scenario of confusion and disorganisation for the family that struggles to cope with all the changes and implications arising. They usually do so by means of non-assertive and dysfunctional strategies that encompass the crisis moment presented by the parental separation (BARBOSA; JURAS, 2021). It is important that legal actors, especially judges and prosecutors, are aware of those issues, as it is known that families going through parental separation and child custody dispute seek judicial aid when they are facing a crisis moment (MOSTEN; TRAUM, 2017). The family lifecycle raises important contextual issues that bring significant uncertainty to the decisionmaking process. Depending on the way legal actors manage them, that process can be more or less difficult.

THE BEST INTERESTS OF THE CHILD
The BIC principle is a tool commonly used to measure and weigh outcomes in any legal situation concerning children. To better understand BIC, one has to consider its evolution from its historical background to its current approach, as follows.

HISTORICAL BACKGROUND
The current concepts of 'child' and 'childhood' originated three centuries ago when childhood began to be seen as a different stage of development, carrying special needs that differ ORMEROD, 2020, p. 55-58): I) the arising of 'child' and 'childhood' as meaningful socio-cultural constructs: II) the development of custody decision-making paradigms; and III) the development of international law advocating on behalf of child's rights and well-being 5 . The notions of 'child' and 'childhood' are social constructions that are determined by the cultural approach of each historical period and society 6 . Until the 17 th century, the child was seen as 'little adult' with no specific social role or identity, but just as a 'replaceable object'. By the age of seven years old, children used to be inserted into the 'adult life', mimetically reproducing adults' habits, tasks and roles (ARIÈS, 1982). Medieval art did not represent children properly, only in sacred paintings and usually portrayed with an 'adult figure', which reinforces the idea that there was no socio-cultural place for children at that time, leading to marginalisation, discrimination and exploitation (ARIÈS, 1982). As a consequence, during the Middle Ages, rates of infanticide and child mortality were high -between 30% and 50% (FERRARO, 2013).
Other factors also contributed to the arising of the contemporary conceptions of 'child' and 'childhood', such as the Enlightenment, Liberalism and Industrial Revolution (WOLFF, 2013; WURTZ, 2020) 7 . The influence of the Church and the State also played a role and led to changes within society and its culture, as well as its values and habits. Ariès (1982) suggests that society commenced to look differently at the children, and provision of love and caring for them started to be part of social expectations towards the family. However, some historians dispute that and believe that parents were always attached to their babies and treasured them (FERRARO, 2013). Later, conceptions of 'child' and 'childhood' improved, and children's well-being became a matter of interest and action of the State. The 18th-century hygienist movement also contributed with policies aimed at educating and shaping the family to be the main source of protection, affection and care for children -germinal issues for the current hegemonic 'nuclear family' model.

4
The majority of Ariès' assertions was based on his thorough analysis of medieval paintings, literature, philosophy, religious believes and letters from that period. Some critics argue that Ariès' assertions might have been done in a 'over generalisation' fashion. Despite that, his work and findings are recognised worldwide (and especially in Brazil) as milestone for the study of 'childhood' across various disciplines.

5
For further discussions regarding 'childhood' in the classical antiquity, please see BRADLEY (2013).

6
A social construction concerns the process in which conceptions, definitions, roles and functions of things are mutually constructed throughout social interactions across cultures, societies and certain periods of time. For more discussions regarding 'childhood' as a social construction, please see NOROZI; MOEN (2016).

7
Some authors (ALLANEN, 2001;MOURITSEN, 2002) also believe that, under a Marxist view, the emergence of 'childhood' was a bourgeois strategy created to ensure the provision of a well-educated and domesticated work-force. This also would have engendered the notion of 'nuclear family' (RÖDER, 2018). This scenario enabled the emergence of the 'best interest of the child' principle, although its seed was lodged some centuries before by the parens patriae 8 doctrine that was prominent in the 13 th century when the English crown claimed wardship over the so-called 'lunatics' and 'idiots' (CUSTER, 1978;LORDELLO;. The rationale behind that doctrine was that the king would be the 'father of the nation', therefore a parens patriae, that would have the power to protect and act on behalf of the weak and powerless. Later, between the 17 th and 18 th centuries, this doctrine started to be applied in cases involving children, especially when the English Courts of Chancery was judging a child custody case. During the 19 th century, English law used to solve a custody dispute by placing the child with the father (MENDES; LORDELLO; ORMEROD, 2020). The same happened in America, where the child had economic importance for the household, notably the father. This practice was based on the ancient Roman rule regarding the 'paterfamilias', which was a single man with powers to control all the domestic and public life of women, children and slaves (LEHR-LEHNARDT; GUNN, 2011). Therefore, the child was seen as a father's property.
This idea changed by the end of the 19 th century and the beginning of the 20 th as the Courts started to consider which parent would better fit the child's needs (SWARTZ, 2017). This was the first time that a child's interests were underlined and seen apart from their parents'. Nevertheless, the law continued to consider women and children to be inferior.
In the first part of the 20 th century, the custody paradigm shifted more than once in the (MENDES; LORDELLO; ORMEROD, 2020). Initially, there was the 'fault-based rule' in which the innocent party in the divorce would be awarded the guardianship. During this period, divorce was usually requested by women, so they were required to prove that the divorce was not their fault to in order to have the child's custody (NATHAN, 2015). This dynamic led judges to award custody to mothers more often, shifting the custody paradigm to 'maternal primacy'. Later, the family courts established the so-called 'tender years' doctrine that presumed the mother, just for being woman and the Rights of the Child in 1989, became a more neutral-gender paradigm that lasts to this day.

CURRENT STATUS
The 'best interests of the child' principle is encapsulated by the 3 rd article of United Nation Convention on the Rights of the Child (UNCRC), which broadly shelters all rights within the UNCRC itself. This article states that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". However, neither the article nor the rest of the UNCRC offers any further definition of the BIC, its application nor the factors for evaluation, which is the main target for the BIC critics.
The United Kingdom (UK) and Brazil are both signatories to the UNCRC. In the UK, the BIC is mostly represented by the Children Act 1989 (UNITED KINGDOM, 1989) which clearly refers to the UNCRC 3 rd article in its first sections and items: 1(1) when a court determines any question with respect to-(a) the upbringing of a child; or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration.
(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.
The Children Act 1989 (UNITED KINGDOM, 1989) also has a so-called 'welfare checklist' which the court is required to take into account. This includes, for example, the child's wishes, biopsychosocial needs, age and degree of understanding and physical safety -this check-list will be discussed later. In England, the 'welfare checklist' is the main source used to understand and evaluate the best interests of the child in child custody cases -this is discussed further in section 3.1.2.
In Brazil, the BIC is expressed on the 227 th article of its Constitution (BRASIL, 1988, our translation): It is the duty of the family, the society and the State to ensure the child's right to life, health, food, education, leisure, professionalization, culture, dignity, respect, freedom, family coexistence and community life, and to safeguard them from all forms of neglect, discrimination, exploitation, violence, cruelty and oppression.
Following the UNCRC, Brazil also enacted the Child and Adolescent Statute, establishing, defining and providing representatives for children and adolescents' rights.  (2019) conducted a systematic review of the best interests of the child in Portuguese and English literatures. The authors found that the literature understands that to promote the BIC one has to: (1) protect the child's physical and mental welfare; (2) provide basic children's rights: (3) preserve the child's physical and non-physical interests and needs (both materialphysiological and contextual -e.g., affection); (4) to understand the BIC essential idiosyncratic nature (varies case to case); (5) to consider the child as a subject of rights; (6) to take into account the child's relational context (family, school, community); (7) understand that BIC is multidimensional; and (8) contextualise and trade-off interests and needs.

DIVORCE AND LAW: THE BRAZILIAN CIVIL LAW AND ENGLISH COMMON LAW SYSTEMS
Legal systems' characteristics and their legislation shape the way legal actors work through assumptions and conceptions. Civil and common law systems have different ways to address divorce and child custody throughout their legal tradition and proceedings. These differences can affect how the family, the children and their best interests will be seen and managed within family courts and the decision-making process.
There are three types of legal systems: 1) civil law; 2) common law; and 3) socialist law.
These systems carry specific legal traditions that locate each of them in a cultural perspective (CRUZ, 2007). Brazil adopts the civil law system and England has the common law system. To classify and understand differences between those systems, Zweigert and Kötz (1998) proposed some juristicstyle criteria, such as viewing the system's: a) historical background and development; b) emblematic mode of thought; c) typical institutions; d) types of legal source (and how it treats them); and e) ideology.
The English common law system is based on "unwritten customary law evolved and developed throughout the centuries with pragmatism, strong monarchs, an unwritten constitution and centralised courts being its typical features" (CRUZ, 2007, p. 38). In this sense, some classical definitions tend to assert that common law does not have a legislative tradition as it was developed in and by courts highlighting the judges' role in making laws 10 . Common law works in a concrete, courtbased way that looks for pragmatic answers when problems are presented before the court, according 10 Some authors and legal practitioners dispute that assertion by acknowledging that, within the common law, quite often some statutes (written law) tend to amend, adjust and refine the customary law -see POJANOWSKI (2015). to a 'case-to-case' procedure and, in this system, the main source of law tends to be case law or judicial precedent 11 . The civil law system is also known as 'Roman-Germanic' because its historical background reflects Roman and Germanic law origins. Due to its inheritance, civil law contrasts with common law by presenting substantive law principles. Civil law was "formulated, compiled and refined in the universities, later codified and then given statutory force by the legislature" (CRUZ, 2007, p. 38). It tends to be more abstract, conceptual and symmetrical, being governed by specific rules that try to foresee and solve problems before they reach the court and it is operated by a 'principle to principle' procedure. In this system, the main source of law is codified or enacted law.
The differences between those two systems impact the way legal actors within each of them understands and operate the law, especially in child custody and access cases after parental separation.
Both systems address public law and private law in the same way, the latter regarding relations between private citizens and organisations, the former referring to disputes involving the State as a party. In Brazil and England, divorce is a private law matter. However, in Brazil, there are some cases in which the State is seen as an interested (and public) party and non-criminal prosecutors can be involved -this will be explained later on.
Apart from the formal ways to constitute lawful adult relationships (religious and/or civil marriage), Brazilian legislation can also legally bind what is called 'stable union' (equivalent to 'common-law marriage' 12 ), an informal union between two persons that resembles a matrimonial bond. There are some requirements to set a 'stable union' (GONÇALVES, 2017): (a) subjective: i) more uxorio 13 relationship: two persons sharing their lives, cohabitating (or not) with "mutual material, moral and spiritual assistances, exchange and the sum of 'living together' interests, affection; in short, the sum of material and spiritual components that underpin the affective relations inherent to the family entity (GONÇALVES, 2017, p. 800)", ii) affectio maritalis: 'marital affect' that refers to the will and purpose to constitute a family with the other person; (b) objective: i) notoriety: must be under public acknowledgement, cannot be a secret relationship, ii) stability or longterm involvement, iii) continuity: the relationship cannot be intermittent, iv) no matrimonial 11 In the history of the common law, there were few statutes and much of law was being developed by judges in decisions in specific cases. But that is almost certainly no longer true of the common law tradition in England. Nowadays, there are complex statutes with which judges interact in their case-by-case decision-making. 12 The English Law does not secure to 'cohabiting couples' rights that a legally married couple. In this sense, unmarried partners do not have enhanced rights regarding assets, properties etc. -see REECE (2015). 13 Expression inherited from Italian law that designates the condition of two people living together without being officially married.
P á g i n a | 106 There are three types of divorce: a) consensual extrajudicial divorce: possible only when there are no children under 18 years old (or a mentally incapable person) and/or any other matter (e.g., goods and assets) that requires judicial involvement -in this case, a public notary recognises and certifies the divorce; b) consensual judicial divorce: when the ex-couple agrees upon all the relevant matters (e.g., residence and contact with the children, child maintenance, goods, assets, etc.) and then make an application so the court can analyse and recognise the agreement and certify the divorce and its terms; c) litigating judicial divorce: when the ex-couple cannot agree upon all the relevant matters (e.g., residence and contact with the children, child maintenance, goods, assets, etc.) and then make an application so the court can analyse the whole case and make decisions regarding those matters and then certify the divorce and its terms.
In the English Law, divorce is mainly ruled by the Matrimonial Causes Act 1973 (MCA, 1973) and Family Procedure Rules 2010. In England, there is no extrajudicial divorce, so marital separation has to go through an application at a divorce court. The marriage dissolution will be granted only if there is 'irretrievable breakdown', based on at least one of five factors: adultery; respondent behaviour; desertion; two years separation (with consent); and five years of factual separation (HERRING, 2019b).
In both countries, even after several reforms, the institute of judicial separation is still possible. This process ends the conjugal union but not the marriage. In Brazil, judicial separation used to be a fault-based procedure that could be issued for one of the spouses in an attempt to punish the other for breaking the marital obligations. After Constitutional Amendment 66/2010, that procedure was overruled. In England, this type of separation is issued whenever one of the spouses objects to the divorce due to religious beliefs, when the marriage has not completed one year (as divorce can be granted only after one year of the marriage). However, in both countries, it has become a less frequent procedure and whenever invoked it must be justified before the court. Either way, this type of 14 If the person still is officially married but do not live together and/or do not share a 'couple life' with their former partner anymore, they could have a 'stable union' with a new partner. 15 However, there are some legal opinions and jurisdictions that do not require monogamy as a factor to grant a 'stable union'.

BRAZILIAN AND ENGLISH LEGAL APPROACH TO DIVORCE AND CHILDREN'S WELFARE
Both countries have different ways to legally address the marital relationship breakdown and the child's welfare. These differences are also cultural and have been absorbed by the legislation.
This section will present key-concepts, proceedings and possibilities of custodial arrangement after parental separation.

Basic concepts and proceedings
Before addressing how each country approaches children's welfare after parental separation, it is important to discuss how each of them sees and understands the child's residence and contact issues whenever the separated parents cannot reach a settlement. In Brazil, when there is a judicial parental separation that involves children, one of the decisions to be made is to define and then award what in Brazil is called as the child's 'guarda'. The standard translation for guarda would be 'custody', but its meaning is closer to 'guardianship'. Guarda is an arrangement that considers with whom and where the child will live as well as how the non-custodial parent will have contact with the child. Applications for guarda can be made until the child is 18 years old. In England, all the matters regarding who a child is to live, and the contacts with the non-custodial/residential parent The current English legislation regarding children in private and public laws has abolished the word 'custody' and started to use 'child arrangements' to designate a court order concerning "(a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person" (Section 8(1), Children Act 1989). More than that, the legislation has abolished the 'custody' concept regarding a child, meaning that this change was not a mere substitution. The aim of the legislator was to clarify and set that the child is not an object to be under custody.
'Child arrangements' is a generic term that leads the courts to evaluate each case and set orders according to the child's and family's idiosyncratic characteristics. That is a significant contrast between Brazilian and English systems, as Brazil not only refer to guarda (meaning custody) but also only offers two types of custodial arrangement: sole custody and joint custody (with or without shared care). Moreover, the latter is a default-arrangement bound by the law that should be applied to every and each case, especially in those in which parents cannot reach an agreement. Therefore, in theory, sole custody would be awarded only when and if one of the parents does not show interest in the custody. Stating a default decision for child custody after parental separation can potentially hamper the decision-making and is a very controversial issue that won't be addressed in this paper as it is not its goal 18 .
Another interesting difference between Brazil and England is how they understand the continuity of the relationship between the child and the non-custodial parent after parental separation, in other words: the child's right to maintain their emotional bond with both parents. In England, it is referred to as 'access' or 'keeping the contact', meaning the child has the right to keep in touch with the parent that does not live with them. On the other hand, in Brazil, it is referred to as 'convivência' (meaning 'coexistence'), that is, the child has the right to keep sharing a life (i.e., their existence) with the non-custodial/residential parent.
In Brazil, the payment of child maintenance is referred to as alimentos (close to the North American notion of 'alimony') and can only be legally enforced by going to the court so both judge and prosecutor can testify that the arrangement is on behalf of the child's interests. The calculation regarding how much maintenance shall be paid is not fixed and can vary from case to case, according to the court's judgment -however, it is based in a threefold principle: (1) necessity (the child's 18 In England, some authors and legal practitioners understand that Section 1(2A) of the Children Act 1989 indicates a presumption of shared parenting -see KAGANAS (2018).

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REVISTA to the court, guarda and child maintenance can be judged at the same time, which can have the adverse effect of prolonging litigation and harming the child's best interests. In its Art. 5º, item LXVII, the Brazilian Constitution (BRASIL, 1988) enacts the possibility of incarceration for parents that do not pay the child maintenance. Other codes have enforced it to the point that, in Brazil, it is common sense that not paying it will definitely lead to prison.
In England, separated parents are strongly encouraged to set the child maintenance by themselves, which is called 'family-based agreement'. In this case, there is no official involvement or legal approval, and the information and support to set up that agreement is provided by the Child Maintenance Options (HERRING, 2019b). If this initial attempt fails, the 'parent with care' 19 can apply to the Child Maintenance Service (CMS). This agency will try to sort out any issues and/or disagreements that are impeding the child maintenance to be settle -to access these services' assistance, parents have to pay a fee (victims of domestic violence and under 19 years old parents are exempt). These two services have a general formula to calculate how much maintenance shall be paid. If the non-custodial/residential parent's weekly income is between £200 and £800, the amount to be paid is as following: 12% of gross income for one child; 16% of gross income for two children; 19% of gross income for three or more children. If the weekly income is higher than £800: 9% of gross income for one child; 12% of gross income for two children; 15% of gross income for three or more children (HERRING, 2019b). In some rare cases, parents can apply for a court 'consent order' to top up the maintenance 20 . In England, child custody and child maintenance are seen and decided as separated matters.
In These different characteristics and policies highlight an important contrast between Brazil and England in child custody matters. The English system tends to discourage legal disputes and altercations between the parents by stimulating self-composition 21 and non-judicialisation of the family's conflicts. Although the Brazilian New Code of Civil Proceedings created specific routes to promote mediation and consensual settlement within Family Law, the reality is that the Brazilian system tends to stimulate judicial litigation -this will be further discussed in section 4. That happens not only due to the judiciary's litigation mindset but also by the creation of legislation that not only judicializes the family's private life but also that fails to comprehend the interrelations within a family and, thus, tends to increase family litigation and incomprehension -e.g., the Parental Alienation Act MENDES; ORMEROD, preprint). Also, in Brazil, child maintenance disagreements or failure in paying it usually impairs custodial arrangements and especially contacts between the child and the non-custodial/resident parent (MENDES; ORMEROD, preprint). This dynamic also seen in England (SKINNER, 2002). However, it tends to be less frequent in England due to the separation of child custody and child maintenance and the non-litigating nature of child maintenance in England.

A COMPARATIVE LOOK AT DIVORCE, LAWS AND THE BEST INTERESTS OF THE CHILD […]
REVISTA

The law regarding child custodial arrangements after parental separation
The Brazilian Civil Code (BRASIL, 2002) has a specific chapter in its Family Law Book named 'Protecting the Offspring'. It is aimed to ensure that children will be protected after parental separation. The first article of this chapter, says that: Art. 1,583. The guarda shall be sole custody or joint custody. § 1º Sole custody is a guardianship awarded to just one of the parents or someone else that replaces them, and joint custody is shared responsibility, rights and duties towards the family power that both father and mother, that do not cohabitate, have regarding their children. § 2º Regarding joint custody, contacts with the child must be divided in a balanced way between the mother and the father, taking into account factual conditions and the child's interests. § 3º Under joint custody, the city in which the child will reside shall be the one that best fits the interests of the children (BRASIL, 2002, our translation, our emphasis [italics]).
The second article provides guidance for application, contact with the child, and guidance to parents regarding joint custody: Art. 1,584. The sole or joint custody will be: I -required by the father and the mother, consensually, or singularly by either of them, in an application for separation, divorce, dissolution of a stable union, or as a precautionary measure; II -decreed by the judge, according to the child's specific needs, or due to the need to balance the child's contact with the father and mother. § 1º During the conciliation hearing, the judge will explain joint custody, its importance, the respective duties and rights of both parents and the penalties for noncompliance with its terms. § 2º When there is no agreement between the mother and the father regarding the custody of the child, and both parents are able to exercise the family power, joint custody shall be applied, unless one of the parents declares to the court that they do not wish be awarded child custody (BRASIL, 2002, our translation).
With the enactment of Act 13,058/2014 (BRASIL, 2014) that altered Art. 1,584, § 2º, joint custody became 'compulsory' to every case in which the parents cannot reach an agreement, unless one of the parents does not want custody. Hence, the joint custody should be awarded regardless of the parental conflict level portrayed. This alteration was due to jurisprudence from superior courts that understood the focus is on the best interest of the minor, which is the driven-principle of the relationship between parents and children. It does not make sense to understand that joint custody is impossible when parents cannot reach a consensus.
[…] Hence the assumption that joint custody impairs this principle is questionable, as this perception only highlights the parental conflict, ignoring the best interest of the child.
[…] The end of conflicts between the former couple is not the aim, but rather the overcoming of obstacles that prevent joint custody to be set 22 (BRASIL, 2014, our translation, our emphasis).
This judgment, also, seems unconcerned with the child's interests, as it clearly states that the most important thing is to secure joint custody, regardless of any other issue. In other words, the main concern is with the arrangement and how it secures both parents' rights to have the child's companionship. Another issue with the Brazilian joint custody model is its obsession with time, meaning contact. It is referred to three times (Art. 1,583 § 2; Art. 1,584, II, § 3) always alluding to "a balanced division of time", implying that the quantity of time overlaps with its quality.
Joint custody was possible within Brazilian Family Law before that alteration. In 2008, Act 11,698 already pointed towards joint custody as a possible arrangement. But why was Act 13,058/2014 enacted? There were debates arguing that, even though it was a possible arrangement, it was rarely awarded and, thus, non-custodial/residential parents had their rights and family power impaired. What is interesting is that § 5º from Art. 1,583, Art. 1,589 and Art. 1,632 (BRASIL, 2002) make very clear that separated parents do not lose their rights and duties towards their children: Art. 1,583 § 5º In the case of a sole custody arrangement, the non-custodial parent is obligated to supervise the interests of the offspring, and to enable such supervision, any REVISTA DA FACULDADE DE DIREITO UFPR | CURITIBA, V. 66, N. 2, P. 95-126, MAIO/AGO. 2021 | parent will always be a legitimate party to require information and/or accountability, objective or subjective, in matters or situations that directly or indirectly affect the children's physical and psychological welfare and education.
Art. 1,589 The non-custodial father or mother may visit their children and have them in their company, according to the agreement with the other parent, or to the settlement fixed by the judge, and have the right to supervise their children's maintenance and education.
Art. 1,632 Judicial separation, divorce, and the dissolution of a stable union do not alter the relationship between parents and children, but rather the right the parents have to have their children in their company (BRASIL, 2002, our translation, our emphasis). § 3º from Art. 1,584 highlights the role of prosecutors and, more importantly, the role of psychosocial staff to help the decision-making process: § 3º In order to establish the attributions of the father and the mother and the periods of contact under joint custody, the judge, ex officio 23 or at the request of the Public Prosecutor's Office, may be based on professional or interdisciplinary team's orientation, which should aim at the balanced division of time between father and mother (BRASIL, 2002, our translation, our emphasis [italics]).
In England, the disputes over a child's upbringing are ruled by Children Act 1989, Children and Adoption Act 2006 and amendments from the Children and Families Act 2014. A child arrangement order is what parents are seeking in a child custody case. This order is instructed by the Children Act 1989's Section 8, which determines who and where the child should live with and how much time the child will have with each parent. Although this order can apply until the child is 18 years old, the court will rarely institute an order when the child is over 16 years old; only in exceptional circumstances (HERRING, 2019a). Before the Children and Families Act in 2014, child arrangement orders were referred to as either 'residence' or 'contact' orders. Now there is just a 'child arrangement order'. It is important to highlight that, in contrast with Brazilian law, English law does not specify and/or limit the type of custodial arrangement that should be set or even specific mentions to 'time balance', like in Brazil. The English law makes very clear that orders concerning child arrangements can be framed by detail and conditions.
Whenever judging a child arrangement case, English courts primarily apply the welfare checklist illustrated at Section 1(3) of the Children Act 1989, which displays the following factors (UNITED KINGDOM, 1989) Another tool the court has is to nominate a guardian ad litem, who will represent the child's interests before the court -so the child will be part in the case alongside their parents. This guardian is usually employed in very complicated and intractable cases and they are appointed to children in circumstances in which the court thinks that the interests of parents and children diverge (to represent the interests of children to the court). Their role is to talk to the child in order to gather their wishes, feelings and welfare interests in general and then report them to the court, but always weighing what is best for the child. Sometimes, the guardian can also appoint a solicitor to represent the child in the case -if the child is 'Gillick competent' 24 , they can ask for a lawyer by themselves.
The enactment of the Children and Families Act 2014 (UNITED KINGDOM, 2014) was also meant to foster less hostile parental disputes over a child's upbringing (HERRING, 2019a). One of the actions with this purpose is in Section 10(1), which states that "before making a relevant family application, a person must attend a family mediation information and assessment meeting". In Section 11, CFA 2014 stated that the involvement of both parents in the child's upbringing would be fundamental, unless the contrary is shown. In contrast with Brazilian law, when it addresses joint custody, CFA 2014 says that involvement "means involvement of some kind, either direct or indirect, but not any particular division of a child's time" (UNITED KINGDOM, 2014).
Chart 3 presents a summary of both legal systems' approach parental separation and child arrangements: Chart 3 -The law regarding child arrangements after parental separation in Brazil and England Brazilian civil law system English common law system ̶ ruled by Civil Code (Arts.

CHILD CUSTODIAL ARRANGEMENTS AND LEGAL DECISION-MAKING FLOW IN BRAZIL AND ENGLAND
In both countries, the judicial process regarding child custody after parental separation involves these basic steps: 1) parental separation/divorce; 2) judicial dispute; 3) evaluation; 4) psychosocial report; and 5) judicial decision. The flow of that process is triggered by the occurrence, or not, of parental agreement. Hence, whenever the parents reach an agreement, the case is closed; whenever they do not, the process keeps flowing until it reaches the final judicial decision that will close the case. Figure 1, at the next page, presents a comparative flowchart demonstrating the judicial custody process after parental separation in Brazil and England.   (TARTUCE, 2016). In reality, some judges just dismiss that hearing and start the proceedings; others proceed with it because the law says it so -also, it is very unlikely that the court will set that hearing if acrimony between the parents is too high. Nonetheless, in Brazil in some courts, parents can be referred to 'educational programmes' that intend to mitigate litigation and help parents reach an agreement.
In both countries, parents (either claimant or defendant) have to present their arguments, proofs and facts in the application but also in a first hearing. 'First Hearing and Dispute Resolution Appointment' (EN) and 'Conciliation' (BR) hearings intend not only to gather arguments, proofs and facts but also to help parents to reach an agreement. In Brazil, the court can designate conciliation hearings as much as the judge thinks is needed. In England, this first hearing has an officer from the British Children and Family Court Advisory and Support Service (CAFCASS) present to assist the court on behalf of the child's best interests. In Brazil, this role will be held by the public prosecutors, as explained before.
In England, if at the First Hearing Dispute Resolution Appointment no agreement is reached, then the court will issue court proceedings with some specific directions. Those directions could include a direction for the appointment of a CAFCASS officer to prepare a report under section 7 of the Children Act 1989. In preparing such a report, the CAFCASS officer must take account of the fact that the child's welfare will be the court's paramount consideration. The CAFCASS officer must consider the factors set out in the welfare checklist in Section 1(3) 25  procedures vary drastically from one state court to another -there are 27 in total. The psychosocial staff will interview the children, their family and also relatives or any other person that might be involved. The Brazilian evaluation process considers inputs from school as a great source of information, and constantly address this in their reports. They also tend to address both the child's and family's well-being.
In a large study with 73 Brazilian and English legal actors (judges, prosecutors, lawyers, psychologists and social workers), Mendes and Ormerod (preprint) found that Brazilian legal actors tend to see the psychosocial evaluation carried in Brazil as 'non-protocol based' due to the fact that each state's court has a particular way to conduct and report the evaluation process and its outcomes.
On the other hand, England seems to have a more structured process of evaluation with clear guidelines (set on Children Act 1989, Sections 3, 7 and also by CAFCASS). However, English legal actors might see the CAFCASS' work as 'no-evidence based' due to the fact that CAFCASS officers tend to rely on subjective opinions and views rather than on facts, research or evidence.
Other actors can be involved in the evaluation process. In England, independent social workers can be hired by the parents to conduct the evaluation -as long as the court has agreed to it and granted permission. Usually, they use The Purple Book (Framework for the Assessment of Children in Need and their Families) (UNITED KINGDOM, 2000) but also focus on the welfare checklist and interview the children and their family. There is also the possibility of an expert witness participation (by psychologists or social workers). In this case, every professional has its own guidelines and procedures. In Brazil, there is the figure of 'perito' (i.e., a judicial expert that can be a psychologist or a social worker) who is chosen and designated by the court and paid by the parents.
They interview the child, the family, go to the school and address the child's and family's psychosocial well-being. There are also technical assistants (psychologist or social worker); their work is similar to an expert witness' but they only review the assessment conducted by psychosocial staff or judicial expert and they rarely interview the child or, sometimes, the parents.
After the evaluation, a report is made. In England, it is guided by Section 7 of the Children Act 1989 -as mentioned before. In general, the report addresses any specific issues pointed out by the court, the child's wishes and feelings and what the CAFCASS officer understands what are the best interests of the child in that case. In Brazil, the report format and content can vary according to the typical practice of each state court and/or professional.
The report will guide the 'Final Finding Hearing' (EN) and the 'Instruction and Judgment Hearing' (BR), which can lead or not to an agreement between the parents. If they cannot agree, then the judge will make a judicial decision regarding child custody. P á g i n a | 120

FINAL CONSIDERATIONS
This paper addressed constraints and process issues regarding child custody cases after parental separation and the BIC in Brazil and England. Each country has its own way of understanding and addressing BIC during the legal process. This applies, for instance, to legal actors' appropriation of the BIC framework. In Brazil, BIC is labelled in the singular and in England in the plural, which may bias legal actors' perceptions and actions towards BIC in such cases. Moreover, the English legal actors have a clear guidance to understand and assess the BIC (Children Act 1989), while in Brazil BIC is addressed in a less objective way, as it is treated as a general legal principle.
There are also clear differences in the way each country legally binds the relationship between parents and children as well as the continuity of this relationship after the parental separation.
In Brazil, the legal binding for that relationship is referred to as 'power' and as 'responsibility' in England. After the marriage breakdown, the Brazilian legal system refers to the child's right to keep 'coexisting' with both parents, while the English one refers to keep the 'contact'.
Some of the main constraints on child custody decision-making are brought about by the ways in which BIC is approached by international law, the type of legal system and the family law characteristics in both countries. In this sense, one should wonder: do those issues impact legal actors' practice? If yes, then why? How do legal actors address them? How do they process them and how these issues impact their practice in child custody cases? On the basis of the review presented above, it is reasonable to expect that Brazilian legal actors might rely more on BIC legislation due to their civil law tradition which makes them more familiar with, and guided by, legislation. In contrast, it is expected that English legal actors would rely more on customary practice. However, Mendes and Ormerod (preprint) found the opposite in a cross-cultural naturalistic decision-making study.
Brazilian participants indicated that the law was limited, and insufficient to address the BIC properly.
Hence, legal actors' "practice needs to be more open and workarounds need to be applied so they can properly approach the case" (MENDES; ORMEROD, preprint, p. 13). In contrast, English participants reported that, despite being in a more flexible system, they relied heavily on protocols such as the Children Act 1989 welfare checklist. In both countries, these dynamics take place due to the high level of uncertainty that is inherent to child custody cases.
There are also clear differences in the way each country legally binds the relationship between parents and children as well as the continuity of this relationship after parental separation.
In Brazil, the legal binding for that relationship is referred to as 'power', and as 'responsibility' in