Reevaluating Domestic Violence in Child Abduction Cases

1. Domestic violence within the Convention's existing framework

Domestic violence is not a proposed addition to the Convention awaiting future adoption. Article 13(1)(b) already provides the framework for considering a grave risk that return would expose a child to physical or psychological harm or otherwise place the child in an intolerable situation. The contemporary dispute concerns its interpretation and application, including the effect on children of violence directed against a parent. The exception must be examined alongside the Convention's return mechanism, rather than treated as a departure from the treaty whenever abuse is alleged. The governing text is the 1980 Hague Convention.

A return application nevertheless requires the Convention's antecedent conditions. Under Article 3, the removal or retention must breach rights of custody attributed under the law of the State of the child's habitual residence immediately before the relevant event, and those rights must have been exercised, or would have been exercised but for that event. Article 4 limits the Convention's application to children under sixteen. Parental nationality, dissatisfaction with a relationship and the crossing of a border do not independently establish wrongful removal.

A finding of wrongfulness does not determine that return is safe. Conversely, raising domestic violence does not determine the return application without examination of the exception. Article 19 expressly separates return from the merits of custody. The proceeding therefore requires both an account of the alleged breach and a reasoned assessment of the objections to return; it is not a competition to identify the parent most deserving of custody.

2. Removal, coercion and the position of the parent left behind

The loss of contact following removal can have consequences extending well beyond the immediate dispute over residence. Uncertainty about a child's location, interrupted communication and the expense of pursuing proceedings abroad may disrupt a parent's working life, emotional stability and ability to maintain family relationships. Such consequences deserve attention as possible features of the particular case. They should not be presented as uniform clinical findings or as proof that every removing parent has committed domestic violence.

Where supported by evidence, concealment, threats concerning future contact, the use of a child to extract concessions or deliberate obstruction of lawful communication may disclose a wider pattern of coercive behaviour. Physical force is not an indispensable feature of that concern. Equally, a restriction on communication may reflect a genuine safety issue, an existing order or another circumstance requiring investigation. The same outward event can have materially different explanations; its legal significance depends on context.

A child's separation from the parent left behind can also affect relationships with siblings, grandparents and other significant people. Those bonds should not disappear from the factual record merely because the litigation crosses jurisdictions. It remains necessary, however, to distinguish separation resulting from the move, conduct intended to sever a relationship and protective limits imposed for a demonstrated reason. Deliberate alienation cannot be assumed to be an inherent component of every wrongful removal, and a label cannot replace proof of particular acts.

The argument for recognising harm to the parent left behind is consequently an argument for fuller factual scrutiny and appropriate protection. It is not an independent exception to return, a licence to disregard evidence of abuse by that parent, or a means of converting the Convention into a damages proceeding. Nor does the distress caused by removal establish entitlement to immediate physical custody upon return. The child's safety and the governing legal tests retain their separate functions.

3. Indirect exposure, future harm and Brazil's constitutional interpretation

The grave-risk inquiry concerns the conditions the child would face on return. That forward assessment may require examination of earlier violence, continuing threats, the effect on a primary caregiver and the practical consequences of renewed exposure. A focus on return does not confine the court to injuries likely to occur at the airport or in the first days after arrival. Alleged longer-term psychological consequences require a concrete evidential connection to the return situation, rather than speculation about every possible future family difficulty.

In Brazil, the Supremo Tribunal Federal's official communication concerning the joint judgment in ADIs 4.245 and 7.686, concluded on 27 August 2025, reproduces a thesis requiring Article 13(1)(b) to be interpreted consistently with the child's best interests under Article 227 of the Constitution and with a gender perspective. It admits the exception where there are objective and concrete indications of domestic violence even if the child is not its direct victim. The same communication records the Convention's compatibility with the Constitution and its supralegal status. The account here relies on that official communication and the thesis it reproduces, rather than an examination of the full judgment and subsequent procedural history.

It follows that the absence of an assault directed at the child cannot dispose of the issue. A requirement for a prior criminal conviction would likewise replace the stated inquiry into objective and concrete indications with a different threshold. At the same time, the reported thesis does not establish that every allegation conclusively proves violence or that the existence of a dispute eliminates the need to assess risk. The decision must address the material relied upon and its significance for the child.

Violence attributed to the taking parent is not irrelevant merely because that parent raises a defence. Its demonstrated effects may be material to protection, contact and the overall factual account. Article 13(1)(b), however, is concerned with risk arising from return; harm in the present placement does not, by inversion, establish that return is safe. A sound analysis avoids offsetting one alleged wrong against another as though the child could be protected by balancing parental culpability.

4. Evidence without categorical assumptions

The parties should identify the alleged acts, their chronology, the persons exposed and the proposed return arrangements. Contemporaneous messages, medical records, protective decisions, witness accounts and appropriately directed expert material may be relevant according to the issues actually disputed. The absence of one category does not logically establish falsity; the existence of a complaint does not establish the truth of every statement it records. Each item must be read for what it proves, in conjunction with the remaining evidence.

That discipline also applies to the parent seeking return. A demand for contact may reflect the legitimate exercise of parental responsibilities, but it cannot itself refute allegations of surveillance, threats or coercion. A complaint filed after arrival in Brazil is not discredited by its timing alone. Conversely, discrepancies, omitted context and demonstrably inaccurate assertions may require explanation. Gender-sensitive adjudication and an effective opportunity to answer adverse material can coexist; neither authorises stereotypes about mothers, fathers, nationality or social position.

The HCCH Guide to Good Practice, Part VI: Article 13(1)(b), offers interpretative guidance on domestic violence, protective measures and focused case management. It is not a treaty amendment or binding judgment. The article's position is that early identification of disputed facts should concentrate the proceedings on the child's risk and the evidence needed to resolve it, while allowing protective action appropriate to the circumstances.

5. Protective measures, undertakings and the limits of comparison

Protective measures require examination of their practical operation. The relevant questions include who is protected, which conduct is restrained, whether the measure can operate in the State of return, how it will be enforced and what happens during the interval before local authorities can act. A promise to avoid violence is not equivalent to an enforceable order; the existence of legislation does not establish the accessibility of a particular remedy. Housing, necessary financial support and safe communication arrangements may also affect whether the proposed protection addresses the identified risk.

Measures should be matched to the danger established or sufficiently indicated. A history of non-compliance may undermine reliance on assurances from the same person; protection dependent on conditions that cannot be secured before return may leave the relevant danger unresolved. Nor should a return arrangement simply assume that the taking parent can accompany the child safely and lawfully. These are matters for evidence and reasoned findings, not assurances that cooperation between States will necessarily succeed.

British practice provides a concrete comparative discussion rather than a universal model. In In the Petition of DM No 2 [2026] UKSC 32, paragraphs 72–84 revisit the approach associated with In re E [2011] UKSC 27. For disputed domestic-abuse allegations, the court asks whether they would establish grave risk if true, then examines protection and, where necessary, resolves disputed issues. The judgment also identifies limits to extending that approach to different assertions, including a parent's stated refusal to return and alleged suicide risk. These passages illustrate the relationship between factual disputes and effective protection; they do not supply a procedural rule binding on Brazilian courts or justify importing a foreign evidential standard.

6. Coordinated protection in Brazilian proceedings

Coordination requires the relevant authorities to perform their own functions. The Brazilian Autoridade Central Administrativa Federal (ACAF), within the administrative structure addressed by Portaria MJSP nº 688/2024, handles international cooperation. The portaria provides for referral to the Advocacia-Geral da União (AGU) in the circumstances it specifies; Article 8, paragraph 11, separately addresses the manifestly demonstrated existence of the Article 13(b) exception and guidance concerning private proceedings or assistance from the Defensoria Pública where financially eligible. Administrative handling is not a judicial finding that violence occurred or that an exception has been established. A seven-day period for the respondent’s written reply applies in the situation specified by Article 8, paragraph 8; where conciliation is unsuccessful and the reply period has expired, paragraph 10 requires the technical note to be sent to the AGU within seven days.

Resolução CNJ nº 449/2022 governs the processing of Convention-based judicial actions alongside applicable law. It provides for participation of the Ministério Público Federal (MPF), preliminary protection, evidence and institutional coordination. The MPF is not the private representative of either parent. Information from a domestic-violence proceeding may be essential to the federal return court, but the existence of parallel files should prompt accurate communication, not an assumption that one order has already decided every question before the other court.

Lei nº 11.340/2006, the Lei Maria da Penha, has its own protective scope concerning domestic and family violence against women. Under Article 19, urgent measures can be based on summary assessment and do not depend on criminal proceedings or a police report. Their grant, refusal and continuation must therefore be understood by reference to their purpose, reasons and procedural setting. Recognising harm to other family members does not erase this statute's specific scope or automatically extend every remedy to every parent.

Expedition remains a Convention requirement, but urgency does not dispense with examination of a substantiated risk. Article 11 permits a request for reasons when a decision has not been reached within six weeks; it does not establish automatic return after that period. Article 12's one-year distinction concerns the commencement of proceedings before the relevant judicial or administrative authority and the possible settled-child issue. It is not a deadline after which an allegation of violence becomes credible, or before which grave risk may be ignored. Safe participation in any attempted agreement must also be assessed where coercion is alleged.

7. An inclusive policy argument within defined legal limits

The policy question is how to protect children and affected family members without making one recognised form of harm invisible in order to acknowledge another. Attention to the suffering of the parent left behind can improve the account of coercion, support needs and disrupted relationships. It cannot justify minimising danger to a parent escaping abuse. Equally, a necessary response to domestic violence should not exempt disputed factual assertions from careful examination or obscure risks attributed to the person opposing return.

International dialogue can assist that work without producing a uniform adjudicative formula. The HCCH's official account of the Second Forum on Domestic Violence and the 1980 Convention, held in Fortaleza in October 2025, describes an open, informal exchange of perspectives and practical approaches. It expressly states that the contemplated factual report would not contain Conclusions and Recommendations. The forum should not be represented as having amended Article 13(1)(b) or adopted a new binding exception. The report was subsequently listed as Prel. Doc. No 8B of January 2026, available only through the HCCH Secure Portal; its contents are not described here. At its meeting of 3–6 March 2026, CGAP took note of the reporting on the Forum and mandated a Working Group on a potential convention on cross-border recognition and enforcement of protection orders (Conclusions and Decisions, paragraphs 22 and 38).

This article advances a doctrinal position in favour of comprehensive factual scrutiny, proportionate protection and recognition of the rights of parents left behind. It does not endorse domestic violence, presume that a person seeking protection is dishonest or advocate return into an unresolved grave risk. Its proposed reevaluation lies in the quality and completeness of the inquiry, while preserving the legal distinctions on which a defensible decision depends.

Official legal and interpretative sources