Pais e filhos… e Estado: análise constitucional dos fundamentos e limites da intervenção estatal no direito à convivência familiar

Abstract

The present master dissertation aims to analyze the limits and foundations of state intervention in the relationship between parents and children. Since the 1988 Constitution, with the adoption of the Integral Protection Doctrine, by Brazil, children and the teenager assumed a rights holder status, which brought legal and ethical consequences for their social relations, starting with the redefinition of its space inside the home. As a rights holder into the family sphere, the infant starts to be allowed to have their own direct opinions which should be duly considered in matters related to themselves, and their legal protection by the state do not necessarily corresponds to the projections of their parents or guardians. The intervention of the public authorities along the family has presented, then, the following epistemological challenge: as the state protects the interests OF children, decreases the radius of parents´ freedom in their education. However, being the Fundamental Law a liberties assurance document, the government actions on the family home should consider the plurality of freedoms presents there - in this particular case, those belonging to the parents and children. Therefore, without prejudice to the individual account of the interests of cohabitants, it is also necessary a communitarian approach of the family members rights, when the family power and the right to family life starts to not have unilateral reference to parents or children, and become to take a reciprocal dimension, based on solidarity. In this light, solidarity plays a key role, not as a substitute but as a complement to traditional legal theories, and is necessary for the science of law the development of methods that, rather than surpass it, hold discussions with the ethics and morality in order to reduce the legal burden assigned to the law, of being a panacea for the world injustices. In this master dissertation was adopted as a research methodology, the bibliographical and documentary research through books, articles and analysis of the jurisprudence evolution and legislation in the United States and Europe, investigating its influence on Brazilian family law and on child and adolescents law. Lastly, the conclusions and concepts developed throughout the research will be applied in the light of a thematic – the intuitu personae adoption – that illustrates the tension between the freedoms of parents and children and government intervention in the family. It concludes, then, that, contrary to what an individualistic rights approach suggests, the child's empowerment is not inversely proportional to their parents', but on the other hand, the more expands the freedom of these, more the small citizen will have at their disposal processes and opportunities to their full development. The state action must occur in a subsidiary manner to the parent action in order to safeguarding the intimacy of the home and, when necessary, provide adequate support to family members to perform their care functions and the guarantee of their rights.