BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
The 1980 Hague Convention in Brazil and the Constitutional Review That Reinforced Its Authority For more than 16 years, the constitutionality of the 1980 Hague Convention on the Civil Aspects of Inter - national Child Abduction remained formally unresolved by Brazil’s Supreme Federal Court. Two proceedings for abstract constitutional review ultimately placed the issue before the Court. ADI 4245, filed in 2009, ques - tioned the constitutional validity of the domestic rules giving effect to 11 central provisions of the Conven - tion, including prompt return, the one-year rule and the limited exceptions to return. ADI 7686, filed in 2024, concerned a narrower issue: whether Article 13 (1)(b) may apply where domestic violence is directed against the mother rather than the child. Heard together, the proceedings culminated in a binding ruling for all Bra - zilian courts, clarifying the Convention’s position within domestic law, the proper conduct of return proceed - ings and the institutional arrangements required for its effective operation. This article examines the claims submitted to the Court, the distinct questions raised in each proceeding and the consequences of the judg - ment for every Hague return case decided in Brazil. International child abduction has long been a conten - tious subject before the Brazilian courts. For years, judges differed over the constitutional status of the 1980 Hague Convention and the methodology of its application. Those questions eventually reached the Federal Supreme Court in two proceedings for con - stitutional review known as ADIs. ADI is the abbreviation for Ação Direta de Inconstitu- cionalidade , a mechanism of abstract constitutional review through which the Federal Supreme Court determines whether a legal provision is compatible with the Brazilian Federal Constitution. It does not revisit an individual return order but assesses that provision in the abstract. Although both ADIs were concerned with the Conven - tion, they differed markedly in their origins and scope. Filed in 2009, ADI 4245 sought a declaration of uncon - stitutionality of the Convention in relation to Articles 1, 3, 7, 11, 12 (“prompt return and the one-year rule”), 13 (“exceptions for non-return”), 15, 16, 17, 18 and 21.
Its principal contention was that the prevailing inter - pretation of those Articles would permit the automatic return of children without adequate examination of the individual circumstances, thereby undermining human dignity and the spirit of child protection and, therefore, conflicting with the Constitution. The second, ADI 7686, was filed in 2024 and con - cerned the interpretation of Article 13 (1)(b) alone. It asked the Court to recognise that domestic violence directed against the mother could, through its effects on the child, engage the grave-risk exception and jus - tify non-return, even where the child had not been directly exposed to that violence. Since both ADIs brought the Convention under consti - tutional scrutiny, the Federal Supreme Court ordered their joint examination and determination. The spe - cific question raised by ADI 7686 was thereby drawn into the broader constitutional review required by ADI 4245, producing a comprehensive and binding pro - nouncement that would govern the application of the Convention to cases of international child abduction throughout Brazil. What the Federal Supreme Court decided The Court’s central conclusion was unequivocal: the Convention is fully compatible with the Constitution. None of the provisions submitted to constitutional review were declared unconstitutional, and the treaty remained valid and enforceable in its entirety. Beyond the mere absence of conflict, the Court con - firmed that the Convention’s principles, its return mechanism and the international commitments it embodies align with the guarantees of human dignity and the comprehensive protection of children under Article 227 of the Constitution. Prompt return was accordingly recognised as con - sistent with the child’s best interests, since it narrows the inquiry open to the requested State, restores the jurisdictional position disturbed by wrongful removal or retention, and preserves the State of habitual resi - dence for the determination of custody. The judgment also fixed the Convention’s position within the hierarchy of Brazilian law. Until then, the
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