Responsabilidade civil no abandono afetivo: a quantificação da indenização do dano moral e a proteção da primeira infância no Superior Tribunal de Justiça

Abstract

The main objective of this study was to list the criteria used by the Superior Court of Justice to establish off-balance sheet compensation in cases of emotional abandonment suffered during early childhood, in order to investigate the incidence of an increase in the amount of compensation in these cases, especially considering the great vulnerability of children during this period. To this end, the hypothetical-deductive approach method was used, since the object of study was analyzed based on the hypothesis that early childhood would be a decisive factor in the arbitration of the compensation quantum by the Superior Court of Justice in its decisions. In this way, the concepts of early childhood and the doctrine of integral protection were presented, as well as the concept of affective abandonment, from the perspective of child protection arising from the Statute of the Child and Adolescent, based on the theory of incidence of civil liability as a result of the omission of the duty of care arising from this legal diploma. Finally, the decisions handed down by the Superior Court of Justice between January 2020 and January 2023 were analyzed in order to corroborate or refute the hypothesis raised. For the development of the research, the monographic procedure method was used, in view of the need for a detailed analysis of the phenomenon of affective abandonment and the need to protect early childhood. As a research technique, indirect documentation was used, through bibliographical research and documentary analysis. The importance of the research lies in its potential contribution to the search for solutions to confront affective abandonment in the judicial sphere, which continues to be a topic that generates adverse doctrinal and jurisprudential discussions, as well as the need to recognize the importance of early childhood beyond the legislative sphere. At the end of the study, it was concluded that the decisions handed down by the Superior Court of Justice do not explicitly use the age of the victim of emotional abandonment to quantify off-balance-sheet damages, focusing instead on analyzing the extent of the damage suffered, the persistence of the impacts and the need for fair and adequate compensation.