BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
treaty operated domestically through Presidential Decree No. 3,413/2000, which promulgated it; that instrument gave the Convention effect in Brazil but did not, by itself, define its rank among domestic norms. The Court supplied that definition by recognising the Convention as supralegal, a status derived from its character as a human rights treaty for the protection of children. Supralegality does not raise the Convention to the level of the Constitution; it situates the treaty below the Constitution yet above all ordinary legisla - tion, including the procedural rules that govern return proceedings. The Convention therefore prevails over any ordinary statute or regulation with which it conflicts, and its mechanism can no longer yield to a broad appeal to domestic family law. Expedition received comparable emphasis. The Court recognised that delay may itself impair the Conven - tion’s effectiveness and therefore required measures capable of securing prompt and effective adjudica - tion. Read together, these determinations preserved the Convention’s essential allocation of authority and answered the broader constitutional objection raised in ADI 4245. The judgment then turned to the question raised by ADI 7686 concerning the treatment of domestic vio - lence under Article 13 (1)(b). Under the Court’s inter - pretation, Article 13 (1)(b) must be applied in accord - ance with the child’s best interests and through a gender-sensitive assessment. Evidence of violence against the mother may therefore be relevant even where the child was not the direct target of the abuse. The legal inquiry is not confined to violence physically directed at the child. It extends to conduct against a parent where the evidence demonstrates that such conduct exposes the child, directly or indirectly, to the grave risk of physical or psychological harm, or to an otherwise intolerable situation, as contemplated by the Convention. This approach is consistent with paragraph 33 of the HCCH Guide to Good Practice on Article 13 (1) (b), which recognises that harm directed at a parent
may, in exceptional circumstances, expose the child to grave risk even where the child was not the direct or primary victim. The necessary legal connection nonetheless remains. The risk faced by the parent must be shown to expose the child to the grave risk contemplated by the Con - vention. The Court thereby brought Brazilian consti - tutional doctrine into line with the established inter - national interpretation of the exception, clarifying its protective scope without extending it beyond its established limits. Protective measures available in the State of habitual residence remain relevant to the assessment under Article 13 (1)(b). Depending on the alleged risk, the court may consid - er reliable information concerning restraining orders, pending proceedings, separate accommodation, financial support, medical or psychological assis - tance, child protection services and other arrange - ments capable of operating after return. Their formal existence is not conclusive, nor may their effective - ness be presumed. The judgment ultimately brought substantial reassur - ance to those involved in international child abduc - tion proceedings. It confirmed the Convention’s con - stitutional compatibility and continued application throughout Brazil, while providing clearer standards for the protection of children, the assessment of evi - dence and the expeditious conduct of return proceed - ings. Article 13 (1)(b) was clarified in its protective scope without losing its exceptional character. The Conven - tion was therefore preserved neither as an instrument of automatic return nor as a means of reopening cus - tody disputes, but as a carefully structured allocation of jurisdiction in which the child’s protection depends upon concrete evidence, effective safeguards and timely judicial determination. Brazil’s institutional direction for the application of the Hague Convention By the time the Federal Supreme Court delivered its judgment, the Brazilian Judiciary was already operat -
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