BRAZIL Trends and Developments Contributed by: Mauricio Ejchel, MF Ejchel International Family Law
ity reaffirmed by the Court be fully reflected in the daily conduct of return proceedings. The 1980 Hague Convention after the ADIs At the conclusion of the highest level of constitutional scrutiny available in Brazil, the Convention emerged with its core structure fully upheld. The judgment did not reconstruct the return system; it confirmed the validity of the structure incorporated into Brazilian law in 2000 and reinforced the authority with which the Convention must be applied. The significance of what was at stake should not be underestimated. ADI 4245 raised no merely techni - cal objection; it invited the Federal Supreme Court to declare unconstitutional, in part, the domestic opera - tion of 11 central provisions of the Convention. Had that argument prevailed, the Convention might formally have remained in force while losing much of the legal machinery required for its effective applica - tion. Return proceedings before the Brazilian courts would have been materially weakened, with conse - quences extending far beyond the parties responsible for bringing the constitutional claim. The immediate effects would have been felt by chil - dren wrongfully retained in Brazil, deprived of the expeditious remedy established for their return, and by parents abroad whose protection depends upon the reciprocal operation of the Convention. For more than 16 years, the constitutional uncertainty surround - ing ADI 4245 placed the effectiveness of the Hague system in Brazil under sustained and serious doubt. By confirming the full compatibility of the Convention with the Constitution, the Federal Supreme Court gave the treaty renewed authority both within Brazil and across the international system to which it belongs. Its significance is not confined to domestic law, since the Convention operates through reciprocal commitments assumed by all Contracting States. Brazil discharges those commitments when it receives and determines a request concerning a child wrong - fully removed to or retained in its territory. Equally, it depends upon the legal effectiveness and institutional reliability of other Contracting States when seeking
the return of a child taken from Brazil. The proper functioning of the system therefore rests upon con - sistent application, judicial co-operation and mutual confidence among participating jurisdictions. In domestic terms, the judgment resolved the consti - tutional uncertainty surrounding the Convention and consolidated its superior authority over ordinary legis - lation. Internationally, it reaffirmed Brazil’s adherence to a common mechanism designed to restore custody jurisdiction promptly to the State of the child’s habitual residence and to ensure that reciprocal obligations are observed with equal force in every Contracting State. A reservation about method nevertheless remains. The two ADIs should, in this author’s view, have been determined separately. Their scope and objectives were distinct and, in important respects, opposed. One questioned whether the return system could continue to operate in its existing form. The other accepted the validity of that system and sought the interpretation of a single exception within it. Although areas of overlap existed, they were limited and did not require the constitutional questions raised by each case to be examined as a single controversy. Their joint determination produced procedural econ - omy and an internally coherent result. It also had the less satisfactory effect of placing the broader consti - tutional question, which had remained unresolved for more than 16 years and carried the greater systemic consequence, in the background of the public debate concerning domestic violence and Article 13 (1)(b). That reservation does not diminish the binding force, substantive coherence or wider importance of the judgment. The Convention is now firmly established within Brazil’s constitutional order, its position in the hierarchy of domestic law has been defined and its central mechanism has been preserved. Its strengthened authority should contribute to more consistent protection of children and more effective return proceedings within Brazil. It should also pro - vide every Contracting State with renewed assurance that Brazil remains committed to the reciprocal obliga - tions, mutual confidence and international co-opera - tion upon which the Hague system depends.
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