BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
the mother extends to the child, legitimising non- return. The reformist view emphasises that domestic violence frequently transcends borders, creating risks that can - not be sufficiently mitigated by formal assurances in the requesting state. Consequently, the interpretation of Article 13 (1)(b) is informed by constitutional guar - antees of dignity and equality, requiring that protective measures for both the child and the accompanying parent be treated as integral to any return decision, thereby ensuring that the requested state functions as a place of safety for the individual at risk. Resolution 449/2022 Brazil’s federal judges are bound by Resolution 449/2022 as the procedural basis for the interpretation of Hague Convention cases, applying it to individual analyses case by case. In fact, Resolution 449/2022 has standardised the process by restricting defences to two admissible grounds: • lack or non-exercise of custody rights by the appli - cant parent; and • grave risk to the child’s physical or psychological well-being under Article 13 (1)(b) of the Convention. It has also imposed expedited hearings, priority treat - ment of return claims in judicial dockets, and uniform protocols for service of process, evidence production, and decision making. By narrowing judicial discretion, the CNJ has aligned domestic practice more closely with international consensus on the Convention’s lim - ited exceptions. These measures were complemented by Brazil’s integration into the International Hague Network of Judges (IHNJ), which has enabled Brazilian judges to engage in direct communication with their counter - parts abroad. Through these channels, the courts have co-ordi - nated activities, mirror orders and other protective arrangements designed to reconcile the prompt return mechanism with the safeguarding of children’s rights,
reinforcing Brazil’s compliance with its international obligations. Resolution 449/2022 further strengthened institu - tional discipline by imposing procedural duties on the lower courts, ensuring that jurisdictional disputes do not obstruct the examination of return petitions. It also created instruments for accelerated schedul - ing, minimising opportunities for delay and reinforc - ing the expectation that Convention cases be treated with genuine priority. These innovations contribute to a more uniform judicial practice and reduce the risk of contradictory rulings between different courts. Gender perspective interpretation of the law In parallel with the interpretation of applicable legisla - tion, there remains a strong line of reasoning grounded in a reformist approach to return orders. Lower courts often favour the gender perspective interpretation of the law, and the preservation of the mother–child bond, even when the act of international transfer of the child happened without the consent of the other parent. For instance, federal courts have held that returning a child to the country of habitual residence where the mother faces imminent risk of domestic violence would indirectly endanger the child, thereby activat - ing the “grave risk” exception under Article 13 (1)(b). By considering extraneous social or cultural factors, such decisions prioritise subjective protection at the expense of uniformity and international reciprocity, a trend shaped by Resolution 254/2018 and Resolution 255/2018 of the CNJ, together with the mandatory application of the Protocol for Judgment with a Gen - der Perspective. These instruments require judges to incorporate gen - der-based vulnerabilities and domestic violence con - siderations into their reasoning, thereby supporting an expanded interpretation of “grave risk” to include threats not only to the child but also to the accompa - nying parent, an approach now brought into the scope of federal claims under the Convention.
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