Child Abduction in Brazil – Divergent Judicial Approaches

Since Brazil incorporated the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) into its domestic legal system in 2000, the country has become a central forum for international parental abduction disputes.

A significant proportion of these cases involve Brazilian nationals who remove children from their countries of habitual residence and retain them unlawfully in Brazil.

As a result, Brazil consistently appears among the jurisdictions with the highest number of international abduction cases, drawing international scrutiny and diplomatic concern, with reports by the US Department of State, the Hague Conference on Private International Law (HCCH), and the EU repeatedly highlighting the country as a jurisdiction of systemic complexity in the Convention’s enforcement.

Conservative principle

Under pressure from Hague Convention partners, and after prolonged discussions among Brazilian authorities and other signatory states, the National Council of Justice (CNJ), with support from the Supreme Federal Court, issued Resolution 449/2022.

This resolution affirmed a conservative line of interpretation that favours strict compliance with the 1980 Convention’s return mandate, imposing uniform procedural rules, narrowing the scope of permissible defences to custody rights and grave risk to the child, and mandating that state courts stay custody proceedings when a federal return petition is pending.

In the same sense, the conservative principle underscores that the child’s prompt return is the primary safeguard of well-being, since restoring the status quo ante by returning the child to the country of habitual residence ensures immediate stability and also ensures that substantive custody decisions are made by the competent forum.

The conservative orientation also ensures that reciprocity between contracting states results in predictable outcomes. By maintaining strict boundaries on defences and limiting judicial discretion, the Brazilian courts provide assurance that foreign return orders will be met with the same rigour, reinforcing mutual trust in international co-operation. This strengthens the Convention’s deterrent effect, as abducting parents cannot expect to benefit from unilateral actions.

The conservative principle reflects the Hague Convention’s core aim of deterring abduction and preserving legal certainty. It insists that custody matters be resolved in the child’s country of habitual residence, reinforcing reciprocity among states and discouraging independent acts by abducting parents. Exceptions are narrowly applied, ensuring that return remains the rule and international co-operation the guiding standard.

Reformist principle

In juxtaposition to the conservative line of understanding, the reformist interpretation advocates for a broader and more humanistic reading of Article 13(1)(b) of the Convention.

Its principle establishes that the “grave risk” exception must be comprehended as covering not only direct harm to the child but also harm to the primary caregiver – typically the mother.

Under this doctrine, any act of domestic violence or coercive separation, as well as gender-based vulnerabilities, constitute valid reasons to suspend or refute the child’s return, on the premise that harm to the caregiver equates to harm to the child.

The reformist principle is anchored in Brazilian domestic laws such as the Maria da Penha Law (Law 11.340/2006) and claims that these protections must amplify the interpretation of Article 13(1)(b) of the Convention in a broader sense, guided by humanitarian and gender-sensitive considerations rather than strict observance of the Convention.

Central to the reasoning is the prioritisation of child integrity over parental custody rights, recognition of the vulnerabilities of migrant women, and the call for gender-sensitive protocols at national and consular levels, with the understanding that violence against the mother extends to the child, legitimising non-return.

The reformist view emphasises that domestic violence frequently transcends borders, creating risks that cannot be sufficiently mitigated by formal assurances in the requesting state. Consequently, the interpretation of Article 13(1)(b) is informed by constitutional guarantees of dignity and equality, requiring that protective measures for both the child and the accompanying parent be treated as integral to any return decision, thereby ensuring that the requested state functions as a place of safety for the individual at risk.

Resolution 449/2022

Brazil’s federal judges are bound by Resolution 449/2022 as the procedural basis for the interpretation of Hague Convention cases, applying it to individual analyses case by case.

In fact, Resolution 449/2022 has standardised the process by restricting defences to two admissible grounds:

• lack or non-exercise of custody rights by the applicant parent; and
• grave risk to the child’s physical or psychological well-being under Article 13(1)(b) of the Convention.

It has also imposed expedited hearings, priority treatment of return claims in judicial dockets, and uniform protocols for service of process, evidence production, and decision making. By narrowing judicial discretion, the CNJ has aligned domestic practice more closely with international consensus on the Convention’s limited exceptions.

These measures were complemented by Brazil’s integration into the International Hague Network of Judges (IHNJ), which has enabled Brazilian judges to engage in direct communication with their counterparts abroad.

Through these channels, the courts have co-ordinated activities, mirror orders and other protective arrangements designed to reconcile the prompt return mechanism with the safeguarding of children’s rights, reinforcing Brazil’s compliance with its international obligations.

Resolution 449/2022 further strengthened institutional discipline by imposing procedural duties on the lower courts, ensuring that jurisdictional disputes do not obstruct the examination of return petitions. It also created instruments for accelerated scheduling, minimising opportunities for delay and reinforcing the expectation that Convention cases be treated with genuine priority. These innovations contribute to a more uniform judicial practice and reduce the risk of contradictory rulings between different courts.

Gender perspective interpretation of the law

In parallel with the interpretation of applicable legislation, there remains a strong line of reasoning grounded in a reformist approach to return orders.

Lower courts often favour the gender perspective interpretation of the law, and the preservation of the mother–child bond, even when the act of international transfer of the child happened without the consent of the other parent.

For instance, federal courts have held that returning a child to the country of habitual residence where the mother faces imminent risk of domestic violence would indirectly endanger the child, thereby activating the “grave risk” exception under Article 13(1)(b).

By considering extraneous social or cultural factors, such decisions prioritise subjective protection at the expense of uniformity and international reciprocity, a trend shaped by Resolution 254/2018 and Resolution 255/2018 of the CNJ, together with the mandatory application of the Protocol for Judgment with a Gender Perspective.

These instruments require judges to incorporate gender-based vulnerabilities and domestic violence considerations into their reasoning, thereby supporting an expanded interpretation of “grave risk” to include threats not only to the child but also to the accompanying parent, an approach now brought into the scope of federal claims under the Convention.

Child return

Brazil has also demonstrated successful cases of compliance with the Convention’s six-week deadline. These precedents illustrate the judiciary’s capacity for efficiency when institutional co-ordination is achieved.

In one unprecedented case in 2024, two siblings were ordered to return to the United States on a provisional basis within record time.

The federal court prioritised the proceedings, scheduled hearings within days, and issued an immediate return order. The appellate court upheld the decision, and the return was fully completed within the Convention’s strict six-week guideline, setting a new precedent for expedited compliance in Brazil.

The case attracted considerable attention because the children had already been strategically integrated into the Brazilian school system, while the mother had filed for divorce, and they were placed to live with extended family members. Despite these circumstances, the court reasoned that their habitual residence remained in the United States, where both their education and primary care-giving arrangements had been established.

The decision emphasised that integration during the period of unlawful retention could not override the Convention’s mandate. To mitigate disruption, the Brazilian authorities co-ordinated directly with their US counterparts to arrange schooling, healthcare, and psychological follow-up immediately upon the children’s return, demonstrating how undertakings and international co-operation can safeguard the child’s well-being while respecting treaty obligations.

Another significant case involved a child diagnosed with severe non-verbal autism spectrum disorder (ASD). He was kept in precarious circumstances in Brazil, with his medical and psychological support suspended, leaving him without proper care.

Seven months after his illicit retention in Bahia, in the north of Brazil, the courts authorised his return to Ireland, recognising that the therapeutic resources there were essential to meet his developmental support. The decision was particularly relevant because expert reports confirmed that the lack of specialised treatment in Brazil was seriously impairing his cognitive and emotional progress.

The judgment emphasised that continuity of therapy and specialised educational services outweighed the temporary disruption of relocation. Irish authorities provided detailed assurances regarding his reintegration into public health programmes, individualised therapy sessions, and financial assistance for his mother during the transition. This case sets an important precedent that the best interests of the child, especially when tied to urgent medical needs, demand swift enforcement of the return order.

Together, these cases demonstrate Brazil’s ability to comply with the Convention’s strict timelines, and to adopt child-centred approaches that do not compromise international commitments. They also counterbalance the narrative of systemic delay, showing that under proper institutional mechanisms, Brazil can deliver swift and effective returns that combine legal rigour with genuine concern for the individual needs of each child.

Risk assessment

The inconsistent application of protective deviations generates legal uncertainty, reinforcing the need for a strict assessment that requires the “grave risk” defence to satisfy three cumulative standards.

• First, the harm alleged must be imminent, serious, and substantiated by evidence. Hypothetical fears, generalised discomfort, or speculative risks are insufficient.
• Second, the harm must have a causal nexus to the return itself. Difficulties of relocation, cultural adaptation, or financial hardship do not qualify unless directly tied to the act of return.
• Third, proportionality must guide the analysis. If protective measures can be arranged in the country of habitual residence, such as mirror orders, supervised visitation, or financial assistance, the return should proceed.

Brazilian appellate courts, particularly the Superior Court of Justice (STJ), have increasingly reinforced the need for a restrictive reading of Article 13(1)(b).

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 supported by concrete and substantiated evidence. This orientation underscores the Convention’s presumption of return and prevents its exceptions from being expanded in ways that could undermine international reciprocity.

In several rulings, the STJ has stressed that difficulties 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, ensuring 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 protection with the obligation of international co-operation. This approach signals Brazil’s commitment to upholding its treaty obligations while safeguarding children from genuine risks, thereby strengthening both domestic jurisprudence and international confidence 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 nationality, 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 custody 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 integration 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 Goldman 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 contracting 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.