BRAZIL Law and Practice Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
cialist local representation. The return court does not determine final custody; it decides whether the child must be returned to the State of habitual residence, subject only to the Convention’s limited exceptions. The Convention ceases to apply when the child reach - es 16. Timing is particularly important under Article 12. Where proceedings commence within one year of the wrongful removal or retention, return must ordinarily be ordered unless an exception is established. Pro - ceedings may still be brought after that period, but the respondent may additionally argue that the child has become settled in the new environment. For certain countries in the Americas, the 1989 Inter- American Convention on the International Return of Children may provide another treaty route. Where no return treaty is in force, proceedings will usually be required in the country where the child is located. A Brazilian custody or travel order may require local rec - ognition or enforcement, while diplomatic or consular assistance cannot compel a foreign court to return the child. Where removal is threatened but has not yet occurred, a Brazilian Family Court may prohibit travel, retain passports, notify border authorities and make specific custody or residence orders. Once the child has left Brazil, those measures may preserve evidence and prevent further movement, but the effective return remedy will ordinarily need to be pursued in the coun - try where the child is then located. 3.3 Hague Convention on the Civil Aspects of International Child Abduction Brazil is a Contracting State to the 1980 Hague Con - vention, which has been in force in the country since 1 January 2000 and was incorporated into domestic law by Decree 3,413/2000. The Federal Administrative Central Authority, known as ACAF, operates within the Ministry of Justice and Public Security. It examines incoming requests, seeks voluntary return and, where no agreement is reached, may refer the matter to the Office of the Attorney General of the Union for pro - ceedings before the Federal Court. The applicant parent may participate as an interested party and assist the Union, but the Attorney General
does not act as that parent’s private lawyer. Specialist private counsel is not mandatory, although it may be important for direct participation, production of evi - dence, co-ordination with foreign lawyers and related proceedings before a State Family Court. Articles 7 (g) and 25 of the Convention support access to legal assistance. No private legal fee is charged for proceedings brought by the Union through the Attor - ney General, and access is generally straightforward once ACAF receives and accepts a complete applica - tion. This institutional representation does not, how - ever, create an individual lawyer-client relationship. A parent requiring separate representation may seek legal aid under Brazilian procedural law or apply to the Federal Public Defender’s Office, subject to financial eligibility, conflicts of interest and institutional capac - ity. Federal jurisdiction derives from Article 109 (I) and (III) of the Federal Constitution, while National Justice Council Resolution 449/2022 regulates the procedure. The judge considers interim protection at the outset, orders service, identifies the necessary evidence and may schedule mediation within 30 days. The defence is due within 15 days and must remain confined to the Convention requirements and exceptions. If mediation is unsuccessful, the court must organise the proceed - ings promptly and should hold the evidential hearing within 30 days, subject only to a limited extension. The Union must establish wrongful removal or reten - tion under Article 3 of the Convention. The respond - ent may contest the existence or exercise of custody rights, establish consent or acquiescence under Arti - cle 13 (a), invoke grave risk under Article 13 (1)(b), rely on the objection of a child of sufficient age and maturity, raise settlement where permitted by Article 12, or invoke the exceptional human-rights ground in Article 20. Resolution 449 excludes evidence that the child has become settled where less than one year elapsed before ACAF received the request or before a qualifying direct application was filed. Interim measures may include retention of passports, border alerts, restrictions on further travel, and pro - tective arrangements for the child or accompanying parent. Under Article 16 of the Convention, a State
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