BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
Child Abduction in Brazil – Divergent Judicial Approaches Since Brazil incorporated the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) into its domestic legal system in 2000, the country has become a central forum for international parental abduction disputes. A significant proportion of these cases involve Brazil - ian nationals who remove children from their coun - tries of habitual residence and retain them unlawfully in Brazil. As a result, Brazil consistently appears among the jurisdictions with the highest number of international abduction cases, drawing international scrutiny and diplomatic concern, with reports by the US Depart - ment of State, the Hague Conference on Private International Law (HCCH), and the EU repeatedly highlighting the country as a jurisdiction of systemic complexity in the Convention’s enforcement. Conservative principle Under pressure from Hague Convention partners, and after prolonged discussions among Brazilian authori - ties and other signatory states, the National Council of Justice (CNJ), with support from the Supreme Federal Court, issued Resolution 449/2022. This resolution affirmed a conservative line of inter - pretation that favours strict compliance with the 1980 Convention’s return mandate, imposing uniform pro - cedural rules, narrowing the scope of permissible defences to custody rights and grave risk to the child, and mandating that state courts stay custody pro - ceedings when a federal return petition is pending. In the same sense, the conservative principle under - scores that the child’s prompt return is the primary safeguard of well-being, since restoring the status quo ante by returning the child to the country of habit - ual residence ensures immediate stability and also ensures that substantive custody decisions are made by the competent forum. The conservative orientation also ensures that reci - procity between contracting states results in predict - able outcomes. By maintaining strict boundaries on
defences and limiting judicial discretion, the Brazilian courts provide assurance that foreign return orders will be met with the same rigour, reinforcing mutual trust in international co-operation. This strengthens the Convention’s deterrent effect, as abducting par - ents cannot expect to benefit from unilateral actions. The conservative principle reflects the Hague Conven - tion’s core aim of deterring abduction and preserv - ing legal certainty. It insists that custody matters be resolved in the child’s country of habitual residence, reinforcing reciprocity among states and discouraging independent acts by abducting parents. Exceptions are narrowly applied, ensuring that return remains the rule and international co-operation the guiding stand - ard. Reformist principle In juxtaposition to the conservative line of under - standing, the reformist interpretation advocates for a broader and more humanistic reading of Article 13 (1) (b) of the Convention. Its principle establishes that the “grave risk” exception must be comprehended as covering not only direct harm to the child but also harm to the primary car - egiver – typically the mother. Under this doctrine, any act of domestic violence or coercive separation, as well as gender-based vulner - abilities, constitute valid reasons to suspend or refute the child’s return, on the premise that harm to the caregiver equates to harm to the child. The reformist principle is anchored in Brazilian domestic laws such as the Maria da Penha Law (Law 11.340/2006) and claims that these protections must amplify the interpretation of Article 13 (1)(b) of the Convention in a broader sense, guided by humanitar - ian and gender-sensitive considerations rather than strict observance of the Convention. Central to the reasoning is the prioritisation of child integrity over parental custody rights, recognition of the vulnerabilities of migrant women, and the call for gender-sensitive protocols at national and consular levels, with the understanding that violence against
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