Act of Fraudulent Commission of Reality

1. Deliberate distortion as a hypothesis requiring proof

The concept addresses a possible attempt to give wrongful removal or retention an appearance of legal and social legitimacy by constructing a misleading account before or after the move. Such conduct might involve fabrication of an event, alteration of a record or presentation of genuine material in a context that changes its significance. These are hypotheses to be tested against identified acts and sources. The original concern cannot establish how frequently the conduct occurs without a defined, independently verifiable body of cases.

An evidentiary gap, an inconsistency and knowing falsity are different propositions. An allegation may remain unproved because relevant information is unavailable; a document may contradict part of an account without establishing that the entire account was invented. A conclusion that someone intentionally deceived an authority requires a further basis concerning the identified conduct and purpose. Calling an account AFCR cannot supply that basis or shift the legal burden merely by labelling the opposing party. [4]

The inquiry is directed to the reliability of the record and its relevance to the decision. A parent seeking return may challenge alleged fabrication, while a parent opposing return must retain the opportunity to present genuine evidence of danger. Neither litigation position determines credibility in advance. The author’s terminology is useful only insofar as it prompts a more exact examination of facts; it becomes misleading if used as a substitute for that examination. [1] [4]

2. Allegations, protective proceedings and institutional support

The allegations discussed in this context include physical, psychological, sexual and financial abuse, harm to a child, violence against a partner or another family member, substance misuse and coercive financial conduct. Their seriousness requires an assessment of what is alleged, against whom, on what dates and with what supporting material. The mere fact that such allegations are made before or after removal does not demonstrate an intention to invent them. Equally, a serious description does not make every factual assertion conclusive. [1] [2]

Applications for sole custody or protective orders in the State to which the child has been taken may become important parts of the evidentiary record. Their significance depends on the relief sought, the findings actually made, the available material and the procedural stage. Article 17 of the Convention prevents the mere existence of a custody decision in the requested State from serving as a ground for refusing return, although the reasons for that decision may be considered. This rule does not render protective measures legally irrelevant or establish that the applicant acted dishonestly. [1]

Support from a non-governmental organisation, an immigrant assistance service or a body serving a minority group is not evidence of fabrication. Such involvement may explain how a person obtained shelter, advice, representation or help recording an alleged event. The relevant question is whether particular information has a reliable basis and what it establishes. Institutional support and the person’s social circumstances cannot be treated as independent indicators of AFCR. [4] [5]

3. Wrongfulness, grave risk and the effect of protection

A Hague return application must first satisfy the Convention’s conditions. Under Article 3, removal or retention is wrongful where it breaches relevant rights of custody under the law of the child’s habitual residence immediately before the event and those rights were exercised, or would have been exercised but for the event. Article 4 supplies the personal and age limits. A disputed move is not classified solely by a parent’s nationality, by a later allegation of misconduct or by the author’s terminology. [1]

Article 13(1)(b) concerns a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The person opposing return must establish the relevant ground under Article 13. That question is distinct from whether a particular witness deliberately lied, whether conduct satisfies a criminal offence or which parent should ultimately receive custody. Article 19 makes clear that a return decision is not a determination of custody merits. [1]

Brazilian law also requires the protective context to be examined accurately. Article 19 of the Lei Maria da Penha permits urgent measures on a summary assessment and, in the circumstances it specifies, independently of a criminal classification, a criminal or civil action, a police investigation or a police report. Granting protection is not a criminal conviction; refusing or later changing a measure does not by itself establish that the alleged violence was fabricated. The actual reasons and scope of the order remain material. [5]

The STF’s official communication of 27 August 2025 concerning ADIs 4245 and 7686 reproduces a thesis requiring Article 13(1)(b) to be interpreted through the child’s best interests and a gender perspective, permitting its application where objective and concrete indications of domestic violence exist even if the child is not the direct victim. This article relies on that published institutional account, rather than an independent examination of the full judgment. The concept of AFCR cannot override the applicable interpretation or impose a requirement for a prior criminal conviction. [6]

4. What the HCCH statistics measure

The Global Report by Nigel Lowe and Victoria Stephens, prepared in consultation with the HCCH Permanent Bureau, studies applications made in 2021 through participating Central Authorities, with outcomes recorded through 30 June 2023. The updated September 2024 version must be distinguished from the earlier edition used when the original article was written. It examines Convention applications and their outcomes; it is not a census of all abductions, a Brazilian-only study or a study of knowingly false domestic-violence allegations. [3]

The detailed refusal analysis identifies 240 applications for which the reasons for judicial refusal were known. Article 13(1)(b) was a whole or partial basis in 107 of them, reported as 45 percent. The corresponding proportions in the earlier study cohorts were 25 percent for 2015, 34 percent for 2008 and 26 percent for both 2003 and 1999. Those percentages concern recorded grounds in refusals, not the proportion of all applications in which a parent alleged danger. They are percentage levels, not a 45- or 46-percent rate of increase. [3]

The updated document contains an internal discrepancy: its executive summary retains a figure of 46 percent, while the detailed table, paragraph 84 and the historical comparison give 107 of 240, rounded to 45 percent. The comparison below follows the detailed analysis and identifies that choice explicitly. Neither version provides a measure of deception, and a difference between publication versions should not be obscured by combining their figures. [3]

Paragraph 88 and the accompanying table in the updated study report Article 13(1)(b) among the refusal grounds in 84 of 180 applications involving a mother as the taking person, or 47 percent, and 22 of 57 involving a father, or 39 percent. These replace the earlier 49- and 38-percent figures used in the original article. They are conditional distributions within the respective refusal groups, not the likelihood that any mother or father will make a false allegation. A judicially accepted grave-risk ground cannot be reclassified as fabricated merely because it contributes to a statistical total. [3]

5. Examining the record without creating presumptions

An operational approach is to identify the proposition in dispute and then examine the material capable of confirming or contradicting it. A message should be assessed in its sequence and context; an order should be read with its reasons; a report should be distinguished from the complainant’s account reproduced within it. These are practical analytical recommendations, not a new statutory checklist requiring every party to produce the same documents in every case. [4]

The Brazilian Code of Civil Procedure provides the applicable evidentiary framework. Articles 369–371 address lawful evidence, judicial management and reasoned assessment. Article 429 differentiates the burden concerning alleged falsity or abusive completion of a document from the burden where its authenticity is challenged. Those rules should not be collapsed into a general demand that one parent disprove the other’s entire account, or into an inference of dishonesty whenever corroboration is incomplete. [4]

Where particular facts suggest deliberate distortion, the court must examine their significance for the issues it is competent to decide and allow the relevant material to be addressed, subject to lawful urgent protection. A contradiction affecting one event may not eliminate independent indications of danger. Conversely, genuine concern about abuse does not immunise a demonstrably altered document from scrutiny. The decision must connect the finding to its proper consequence, rather than punish a parent through the return outcome. [1] [4] [5]

6. The proper function of the author’s concept

The HCCH Guide to Good Practice on Article 13(1)(b) offers interpretative assistance on focused case management, grave risk and effective protection. It is advisory and does not create an AFCR test or a presumption against people seeking safety. Its contribution is to the disciplined examination of the return issue within the Convention’s framework, with due attention to the particular child and the applicable domestic law. [2]

Resolution CNJ No. 449/2022 supplements the procedural setting in Brazil, including the identification of issues, evidence, provisional measures and judicial cooperation. These tools may assist a court in examining contested material without turning a Hague application into an unrestricted investigation of the parents’ entire relationship. Expedition and factual accuracy must be pursued together; neither a rhetorical accusation of fraud nor a general appeal to urgency can replace a reasoned determination. [7] [4] [1]

The author’s concern is preserved as a demand to recognise deliberate manipulation when it is established and to protect the integrity of institutions that decide children’s futures. Its legal usefulness depends equally on avoiding a contrary error: mistaking an unproved allegation, an adverse procedural outcome or membership of a demographic group for evidence of knowing fabrication. The child’s safety, the reliability of the record and the precise legal test must remain identifiable throughout the analysis. [1] [4] [5]