BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
In recent precedents, the STJ overturned first-instance denials of return grounded on allegations of subjective hardship, reaffirming that the “grave risk” exception must be applied with caution and only when sup - ported by concrete and substantiated evidence. This orientation underscores the Convention’s presump - tion of return and prevents its exceptions from being expanded in ways that could undermine international reciprocity. In several rulings, the STJ has stressed that difficul - ties such as cultural adaptation, financial instability, or the emotional distress naturally associated with relocation cannot, in themselves, justify non-return. Instead, courts have been directed to demand proof of imminent and serious harm directly linked to the act of return. This jurisprudential stance harmonises Brazilian practice with international standards, ensur - ing that the exception remains exceptional and that the integrity of the Convention’s return mechanism is preserved. Furthermore, appellate judges have increasingly relied on the principle of proportionality, requiring lower courts to explore alternative protective measures – such as mirror orders, supervised visitation, or social assistance – before accepting a non-return plea. By favouring proportional solutions, the STJ conveys that the proper balance lies in reconciling the child’s pro - tection with the obligation of international co-oper - ation. This approach signals Brazil’s commitment to upholding its treaty obligations while safeguarding children from genuine risks, thereby strengthening both domestic jurisprudence and international con - fidence in the country’s compliance. The Sean Goldman case The international spotlight on Brazil’s compliance with the Convention was most pronounced in the Sean Goldman case.
Sean, a child of dual Brazilian/North American nation - ality, was unlawfully retained in Brazil for more than five years after his mother brought him from the United States and later passed away, leaving him in the cus - tody of his Brazilian relatives. Despite clear obligations under the Convention, the Brazilian courts delayed his return by invoking broad interpretations of “best interests” and family integra - tion until 2009, when after prolonged litigation and international scrutiny, Sean was finally returned to his father in the United States. The political and diplomatic reverberations of the Gold - man case extended far beyond Brazil. In response, the US Congress enacted the Sean and David Goldman International Child Abduction Prevention and Return Act (ICAPRA) of 2014. This legislation established a monitoring mechanism through which the US State Department annually reports on the compliance of treaty partners with the Hague Convention, and it has become one of the most important global control instruments in preventing international child abduction. Final consideration The authority responsible for deciding return requests must fully acknowledge that the Convention rests on a binding and reciprocal commitment between con - tracting states, with each one expected to assist the other in cases of wrongful removal and to do so in good faith, with the assurance of reciprocity. This fundamental duty, when viewed in perspective, cannot be dominated by narratives that attempt to justify or excuse the conduct of abducting parents, for the undeniable reality is that the true victim of such acts of misconduct, violence and abuse is always the child.
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