THE CIVIL LIABILITY OF A DESCENDANT WHO HAS BEEN AFFECTIVELY ABANDONED VERSUS THE OBLIGATION TO SUPPORT AN ASCENDANT WITH A SERIOUS ILLNESS: THE CONFLICT OF RIGHTS BETWEEN ARTICLE 22, SOLE PARAGRAPH, OF THE CHILD AND ADOLESCENT STATUTE AND ARTICLE 3, § 1, INCISO V, OF LAW NO. 10.741/2003

Abstract

This study deals with the civil liability of a descendant who suffered emotional abandonment during childhood or adolescence by his/her ascendant and the possible obligation to support his/her ascendant in the event of old age or serious illness, as well as the conflict of rights existing between both situations provided for in art. 22, sole paragraph, of the Statute of Children and Adolescents (Law no. 8,069/1990) and art. 3, § 1, item V, of the Statute of the Elderly (Law no. 10,741/2003). In this context, the legal aspects related to the civil liability of the ascendant towards the abandoned descendant are studied, evaluating the principles applicable to Family Law and their relevance when it comes to holding the ascendant who abandons accountable. Emotional abandonment is defined and the requirements according to case law for the civil liability of the ascendant for damages caused by abandonment to the detriment of the descendant are listed, requiring the concomitant presence of commission or omission that causes harm to the individual's physical or psychological health, as well as the causal link between these elements. The application of the theory of civil liability is also verified in cases of reverse emotional abandonment, indicating that the elderly person may also have due compensation. The problem of this work is answered, that is, whether the descendant who was emotionally abandoned by his ascendant during his childhood or adolescence is obliged to provide assistance to the elderly ascendant, the conclusion of which is that this obligation should be relativized if damages inherent to said abandonment are found, based on the principles applicable to Family Law. The research method used is deductive, the legal research methodology used is exploratory bibliographic and documentary, and the data analysis technique is qualitative, enabling a broad understanding of the context involving the principle of family solidarity in the case of reciprocal obligation between parents and children regarding the duty of care and assistance.