BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
Child return Brazil has also demonstrated successful cases of compliance with the Convention’s six-week deadline. These precedents illustrate the judiciary’s capacity for efficiency when institutional co-ordination is achieved. In one unprecedented case in 2024, two siblings were ordered to return to the United States on a provisional basis within record time. The federal court prioritised the proceedings, sched - uled hearings within days, and issued an immediate return order. The appellate court upheld the decision, and the return was fully completed within the Conven - tion’s strict six-week guideline, setting a new prec - edent for expedited compliance in Brazil. The case attracted considerable attention because the children had already been strategically integrated into the Brazilian school system, while the mother had filed for divorce, and they were placed to live with extended family members. Despite these circum - stances, the court reasoned that their habitual resi - dence remained in the United States, where both their education and primary care-giving arrangements had been established. The decision emphasised that integration during the period of unlawful retention could not override the Convention’s mandate. To mitigate disruption, the Brazilian authorities co-ordinated directly with their US counterparts to arrange schooling, healthcare, and psychological follow-up immediately upon the chil - dren’s return, demonstrating how undertakings and international co-operation can safeguard the child’s well-being while respecting treaty obligations. Another significant case involved a child diagnosed with severe non-verbal autism spectrum disorder (ASD). He was kept in precarious circumstances in Brazil, with his medical and psychological support suspended, leaving him without proper care. Seven months after his illicit retention in Bahia, in the north of Brazil, the courts authorised his return to Ireland, recognising that the therapeutic resources there were essential to meet his developmental sup - port. The decision was particularly relevant because
expert reports confirmed that the lack of specialised treatment in Brazil was seriously impairing his cogni - tive and emotional progress. The judgment emphasised that continuity of therapy and specialised educational services outweighed the temporary disruption of relocation. Irish authorities provided detailed assurances regarding his reinte - gration into public health programmes, individual - ised therapy sessions, and financial assistance for his mother during the transition. This case sets an important precedent that the best interests of the child, especially when tied to urgent medical needs, demand swift enforcement of the return order. Together, these cases demonstrate Brazil’s ability to comply with the Convention’s strict timelines, and to adopt child-centred approaches that do not compro - mise international commitments. They also counter - balance the narrative of systemic delay, showing that under proper institutional mechanisms, Brazil can deliver swift and effective returns that combine legal rigour with genuine concern for the individual needs of each child. Risk assessment The inconsistent application of protective deviations generates legal uncertainty, reinforcing the need for a strict assessment that requires the “grave risk” defence to satisfy three cumulative standards. • First, the harm alleged must be imminent, serious, and substantiated by evidence. Hypothetical fears, generalised discomfort, or speculative risks are insufficient. • Second, the harm must have a causal nexus to the return itself. Difficulties of relocation, cultural adap - tation, or financial hardship do not qualify unless directly tied to the act of return. • Third, proportionality must guide the analysis. If protective measures can be arranged in the coun - try of habitual residence, such as mirror orders, supervised visitation, or financial assistance, the return should proceed. Brazilian appellate courts, particularly the Superior Court of Justice (STJ), have increasingly reinforced the need for a restrictive reading of Article 13 (1)(b).
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