Return of Children under the 1980 Hague Convention

What the video introduction covers

The subjects identified in the editorial introduction are:

• Initial preparation and organisation of the chronology and evidence.
• Habitual residence, consent and issues raised in return applications.
• Cooperation between authorities and coordination of legal representation in the countries concerned.
• Immigration conditions, protective measures and voluntary return.
• Practical arrangements for handover, reception and continuity of protection for the child.

A return application must be understood within its Convention function: the enquiry concerns removal or retention in breach of custody rights in the State of habitual residence, without the return decision determining the merits of custody. Applicability between the States concerned must be confirmed, including acceptance of accession where required; the mere appearance of both countries on a list of participants does not complete that verification. [1] [2]

Preparation and international coordination

Preparing the application requires a verifiable chronology: the immediately preceding habitual residence, the origin and exercise of custody rights, removal or commencement of retention, and the scope of any authorisation or consent. Documents concerning the child’s life and the conduct of those responsible must correspond to the facts they are intended to establish; travel authorisation and consent to a change of residence cannot be presumed equivalent. [1]

Elapsed time also requires legal characterisation. Article 12 considers the interval between wrongful removal or retention and commencement of proceedings before the competent judicial or administrative authority of the State where the child is located. Mere receipt of the cooperation request by the Brazilian Central Authority should not be presented as a Convention landmark identical to the commencement of court proceedings. Settlement in the new environment has the particular temporal framework established by that article. In Brazilian procedure, Article 14(3) of CNJ Resolution No. 449/2022 distinguishes receipt by the Brazilian Central Authority through the cooperation channel from the direct commencement of judicial proceedings. These domestic landmarks must be identified in their respective records and examined alongside the treaty text. [4] [1]

Grave risk, settlement and the child’s views are distinct issues. Article 13(b) requires assessment of the risk associated with return; the exception concerning the child’s objection considers sufficient age and maturity, without establishing a Convention minimum age of twelve. The hearing and evidence must permit examination of the relevant ground, without reducing the dispute to an adult’s preference or an abstract answer about where life would be better. [1]

Administrative cooperation and judicial representation perform separate functions. Portaria MJSP No. 688 of 24 May 2024 regulates administrative processing, supporting documents and coordination between authorities, without empowering the Central Authority to adjudicate a return action. Referral to the AGU in the specified circumstances must be distinguished from the competent court’s decision and coordinated professional work in each country. [3]

Voluntary return and enforcement of an order require concrete arrangements for handover, reception, travel documents, immigration conditions and relevant protective measures. Article 7 of the Convention provides for cooperation towards an amicable solution and safe return; in Brazil, Article 20 of CNJ Resolution No. 449/2022 provides for assistance with enforcement within the responsibilities of the bodies concerned. A statutory provision does not establish that a measure has already been obtained or that a particular structure operates in every case. [1] [3] [4]

Continue the series: families across borders

To follow the sequence of topics, consult the Portuguese-language episodes Sequestro Internacional de Crianças: o que a Convenção da Haia realmente define and Principais Mitos sobre o Sequestro Internacional de Crianças.

The Manual do Sequestro Internacional de Crianças sob a Convenção da Haia de 1980 is the written reference for further study identified in this presentation. The audiovisual and written formats offer complementary ways to explore the subject.

This page may be shared with professionals and people studying International Family Law. To follow forthcoming episodes, visit the Dr. Mauricio Ejchel YouTube channel.

Informational and educational content. Assessment of a particular application depends on the facts, evidence and applicable law.

Official references

1. 1980 Hague Convention — Decree No. 3,413/2000. Articles 3, 5, 7, 8, 10, 12, 13, 19 and 38: requirements, preparation, cooperation, timing, exceptions and relations between States.
2. HCCH — status of the 1980 Child Abduction Convention. Official status table and acceptances of accession for checking the relationship between the States.
3. Portaria MJSP No. 688 of 24 May 2024. Articles 1, 2, 5, 8, 9 and 15 to 17: administrative processing, documents, coordination and practical conditions.
4. CNJ Resolution No. 449 of 30 March 2022. Articles 14(3) and 20: Brazilian procedural landmarks and cooperation in enforcing a return decision, welfare and security.