Precautionary Injunctions in International Child Abduction Cases in Brazil

1. Legal basis and the character of interim relief

The Brazilian Code of Civil Procedure provides for provisional relief sought within existing proceedings or, where the statutory requirements are met, before the principal claim is fully formulated. Preservative relief, known as tutela cautelar, seeks to secure the effectiveness of the eventual decision; anticipatory relief, or tutela antecipada, provisionally affords the substantive protection sought. An order made at the outset of proceedings is not a freestanding category of lawsuit that must invariably precede an abduction.

CNJ Resolution No. 449 of 30 March 2022 supplements the procedure for judicial proceedings under the 1980 Hague Child Abduction Convention. It is a resolution of the National Council of Justice, rather than a normative instruction, and did not create provisional relief in Brazilian law. Articles 10 and 18 expressly address interim applications within Convention proceedings and require observance of civil procedural law.

Under Article 300 of the Code, urgent relief requires material showing both the likelihood of the asserted right and a danger of harm or a risk that the proceedings will lose their practical effectiveness. The decision must explain why the requested intervention is justified. Proportionality, the possibility of variation or revocation and, for anticipatory relief, the statutory restriction concerning the danger of irreversible effects must be considered; urgency does not dispense with these safeguards.

2. The competent court and coordination with family proceedings

Convention-based return proceedings fall within federal jurisdiction under Article 109 of the Federal Constitution, particularly its treaty-based jurisdiction in item III and, where applicable, the participation of the Union under item I. That allocation does not make every preventive dispute involving parents in different countries a federal case. Article 299 of the Code directs an interim application to the court hearing the case or, for antecedent relief, to the court competent to determine the principal claim.

The distinction has practical consequences for requests concerning passports and departure restrictions. In a decision of 19 August 2026, published on 24 August and reported in STJ Informativo No. 903, the Superior Court of Justice held that an incidental allegation of international child abduction in family proceedings did not, by itself, transfer jurisdiction to the federal courts. The case concerned requests for surrender of passports and restrictions on departure, without an autonomous international-return action. The holding concerns that procedural setting; it does not displace federal jurisdiction over a properly constituted Convention claim.

Territorial venue must then be assessed under the rules applicable to the claim, the parties and the particular procedural route, together with any rules allocating cases to specialised courts. The respondent's domicile, the place where a judicial cooperation measure is to be implemented and existing proceedings may be relevant in their respective contexts. A prospective holiday address or a relative's residence may provide useful location information, but neither establishes a general entitlement to choose a federal court in that state.

Return proceedings must also be coordinated with any Brazilian custody litigation. Article 16 of the Convention restricts determination of custody merits after notice of a wrongful removal or retention, on the conditions stated there; Articles 17 and 19 distinguish the return decision from a determination of custody. Articles 21 and 22 of Resolution No. 449 address compliance with a federal return order and communication with the state court. A stay concerning custody merits should not be described as an indiscriminate suspension of every family claim or an abandonment of immediate child protection.

3. Establishing the risk and organising the documents

Custody disagreements, disputes over possession of passports and divorce proceedings may supply context, but their existence alone does not demonstrate an imminent wrongful removal or retention. The application must connect the requested order to identifiable facts: the agreed purpose and duration of travel, an announced refusal to return the child, relevant communications, existing orders or a substantiated attempt to depart in breach of applicable rights. Allegations and supporting records should remain distinguishable from facts already established by a court.

Family photographs, passport copies and a relationship history may serve different purposes in an urgent application. Their relevance should be assessed separately from the legal requirements governing the judicial claim and the administrative cooperation file.

Foreign-language documents require attention to the procedural route. Article 17 of Ordinance No. 688 governs translations for the administrative channel, while Article 17 of Resolution No. 449 permits resources facilitating comprehension in the circumstances it specifies. Neither should be presented as an unrestricted waiver of translation requirements in every court filing. Article 23 of the Convention dispenses with legalisation or equivalent formalities within its scope.

4. Travel restrictions, passports and immediate protection

Article 18(1) of Resolution No. 449 directs the judge, where there is a risk of a further wrongful removal or retention, to consider measures restricting travel by the child and the accompanying person, including retention of passports and alerts to border authorities. These are possible judicial responses to a demonstrated risk. They do not arise automatically from a parent's complaint, and the provision does not authorise a general prohibition on travel for every family involved in a cross-border dispute.

As an implementation matter, an application should identify the persons and available documents concerned, explain the precise restriction sought and indicate which authorities would need to receive the order. Those details help the court frame an effective and proportionate measure; they are practical drafting considerations, not a separate legal entitlement to surveillance. Any border communication must reflect the actual judicial direction or another applicable legal basis. A request sent privately to the police does not itself create a judicial exit restriction.

Passport issuance, authorisation for international travel and consent to a permanent change of residence are distinct questions. The Federal Police's official guidance distinguishes authorisation to issue a passport from permission to travel. For Brazilian children and adolescents, the applicable exit requirements must be examined under the Child and Adolescent Statute and CNJ Resolution No. 131/2011, including its provisions concerning residence abroad. Article 11 of that resolution provides that travel authorisation does not constitute permission to establish permanent residence abroad unless that permission is expressly recorded. Compliance with a border-document requirement cannot, by itself, determine whether a retention breaches custody rights under the Convention.

Protection from immediate harm is a separate concern. Article 18(2) of Resolution No. 449 requires consideration of protective measures where there are grounds to believe that the child is at risk, expressly mentioning institutional care or placement with a foster family. Both are exceptional and provisional measures under Article 101(1) of the Child and Adolescent Statute, not routine consequences of a return application. The protection chosen must respond to the identified danger and cannot be treated as an automatic award of the child to the requesting parent.

5. The Central Authority, legal representation and enforcement

Brazil's Federal Central Authority, ACAF, operates within the Department of Asset Recovery and International Legal Cooperation, DRCI, in the National Secretariat of Justice of the Ministry of Justice and Public Security. Its functions include receiving and examining cooperation requests, communicating with foreign counterparts, assisting with location and facilitating voluntary return. Under Article 8(5) of Ordinance No. 688/2024, it may seek assistance from the Federal Police and other bodies when the respondent's address is unknown or the respondent cannot be found there. These administrative functions do not confer power to adjudicate a contested return claim or custody merits.

Where the administrative conditions for referral are met, the request may be sent to the Attorney General's Office, AGU, for judicial action by the Union. The AGU's institutional role should not be equated with private representation of every applicant. The Federal Public Prosecutor's Office, MPF, performs a distinct function and must receive notice of all procedural steps under Article 9 of Resolution No. 449. Police assistance, whether for location or compliance with a court order, does not make the police the authority deciding the child's return or the merits of parental rights.

Article 29 of the Convention preserves direct access to the competent authorities; exhaustion of the Central Authority procedure is not a treaty prerequisite to a judicial claim. Nor does a court application dispense with the need to plead and establish the Convention requirements. Where administrative cooperation and judicial proceedings coexist, their coordination should avoid inconsistent accounts or overlapping requests. A separate second return action is not invariably necessary merely because interim relief has been sought; the appropriate procedural step depends on the claim already before the court.

Once a return order is to be enforced, Article 20 of Resolution No. 449 allows the federal judge to request assistance from the Union's legal representatives and the Brazilian Central Authority within their respective responsibilities, while safeguarding the child's welfare and safety in Brazil. Psychological or social-work support, and accompaniment by the Federal Police, may be requested if necessary. The arrangements must implement the judicial decision and its conditions; a preliminary restriction on travel is not, by itself, an authority to remove and deliver the child to a parent.

6. If a visit becomes a wrongful retention

An initially lawful visit can develop into a wrongful retention, but that conclusion requires the Article 3 analysis: breach of custody rights under the law of the child's habitual residence immediately before the retention, and actual exercise of those rights, or exercise that would have occurred but for the retention. Those rights include the right to determine the child's residence and may exist without a prior court order. The Convention applies to children under sixteen, and its operation between the states concerned must be verified, including any required acceptance of an accession. Nationality or possession of a passport does not replace those inquiries.

A prior injunction and the material supporting it may help establish what was agreed, which rights were asserted and when a dispute arose. Their evidential significance depends on their content and the subsequent events. The act of applying for relief does not prove the other parent's premeditated intention to abduct, and a provisional finding is not a final determination of wrongful retention. The Convention's civil test does not require a criminal conviction or proof of a criminal intent to kidnap.

A court considering return must address the Convention requirements and any properly raised exceptions. These include non-exercise of custody rights, consent or subsequent acquiescence under Article 13(1)(a); grave risk of physical or psychological harm or an intolerable situation under Article 13(1)(b); a qualifying objection by a child of sufficient age and maturity; and Article 20's protection of fundamental principles concerning human rights and freedoms. A return order concerns return to the state of habitual residence and does not, under Article 19, adjudicate which parent should ultimately have custody.

Domestic violence must receive substantive consideration within that framework. In its official account of the 2025 judgment in ADIs 4245 and 7686, the Supreme Federal Court stated that Article 13(1)(b) must be applied consistently with the child's best interests and a gender perspective, admitting the grave-risk exception where objective and concrete indications of domestic violence exist, even if the child is not the direct victim. An interim application cannot be used to bypass that examination. Any request for immediate return under Article 18(3) of Resolution No. 449 must be assessed together with the Convention, the applicable procedural safeguards and the relevant evidence.

7. Expedition, the opportunity to respond and procedural follow-through

Article 11 of the Convention requires expedition. If no decision has been reached within six weeks from commencement of the proceedings, the applicant or the relevant Central Authority may request a statement of the reasons for delay. It is not a guarantee of judgment or physical return within six weeks, and it does not remove the need for evidence, consideration of the exceptions or lawful enforcement. The availability of interim relief does not establish either the outcome or the duration of return proceedings.

Article 9 of the Code permits urgent provisional relief without prior hearing in the circumstances it recognises. That exception does not eliminate service, the opportunity to contest the claim, participation in evidence or a reasoned judicial assessment. Article 10 of Resolution No. 449 requires the federal judge to consider interim relief, order service and safeguard the respondent's participation in early evidence. A rapid protective decision and a final return determination therefore perform different procedural functions.

Procedural obligations also continue after an antecedent order. Where the preservative procedure in Articles 305–310 of the Code is used, Article 308 requires the principal claim to be formulated within thirty days after implementation of the interim measure, in the same proceedings; the rule must not be transposed indiscriminately to every form of provisional relief. Legal work at this stage consists in preserving the child and the effectiveness of the proceedings while completing the appropriate claim, rather than treating the injunction as an automatic or final return order.