Defending International Child Abduction Proceedings: Procedure and Evidence

By Dr. Mauricio Ejchel

Preparing a defence begins by identifying the document received, the procedure underway and the facts whose proof may affect return. A Central Authority communication, service of judicial proceedings and a return order require different steps. Organising a response without this distinction may produce extensive documentation that nevertheless fails to address the application’s grounds or preserve the applicable deadline.

This article concerns administrative and judicial action in Brazil, focusing on chronology, evidence and protection during proceedings. Substantive analysis of custody, consent and Convention exceptions is developed in the companion article on grounds and protection.

1. Identify the demand and define the defence’s object

The initial document must be read in full, together with attachments and identification of the sending authority. It is necessary to establish who seeks return, which country is identified as habitual residence, which custody rights were allegedly breached, when removal or retention allegedly occurred and what measures have already been ordered. The label “international abduction” does not dispense with that inquiry: the civil requirements appear in Articles 3 to 5 of the Convention promulgated by Decree No. 3.413/2000 and do not depend on a prior criminal conviction.

Restoring the situation altered by wrongful removal protects the child’s ties to the living environment and custody and access rights. Convention proceedings do not generally select the most suitable caregiver or the country offering better material circumstances. Nor do lawful entry into Brazil, a national certificate or local custody proceedings resolve the return requirements. This definition preserves relevant family questions while excluding arguments that do not address the object in dispute.

Initial analysis also covers the under-sixteen limit, immediately preceding habitual residence and the applicable treaty relationship between states at relevant dates under Articles 4, 35 and 38. Their appearance as participants in a general list is insufficient. Where movement began as an authorised journey, the defence must identify the event allegedly constituting retention, since that date may differ from entry into Brazil.

2. The response in ACAF administrative proceedings

MJSP Order No. 688/2024 governs cooperation processing within the Ministry of Justice and Public Security. Article 2 assigns Central Authority functions to the DRCI within the ACAF framework, including receipt, admissibility, preparation and referral. Article 8’s list guides preparation of an incoming application submitted by the requesting authority; without considering each document’s object, it must not be converted into universal defence requirements.

In the specific situation of express opposition to continuing conciliation, Article 8, § 8, allows seven days for the respondent’s written response with evidence. Administrative computation follows Article 18 of the Order and its reference to Law No. 9.784/1999. That period has its own context: it is not the judicial defence period and cannot be calculated merely from the date of any received message. The communication, its triggering act and the procedure actually instituted must be examined.

The administrative submission should identify disputed points and assemble available material, including violence and protection evidence, without assuming that opening cooperation confirms the applicant’s account. Article 8, § 2, provides for requests for information on criminal issues, domestic violence, protection and access to the child. Subsequent paragraphs regulate communication with the AGU and preparation of the record. The Central Authority does not adjudicate custody; administrative closure likewise does not prevent direct access to competent authorities under Article 13 of the Order and Article 29 of the Convention.

3. Service, defence and institutional participation

Convention return proceedings fall within the federal courts. Articles 6 to 9 of CNJ Resolution No. 449/2022 govern participation of the Union, the standing of the person accompanying the child, participation by the interested party and notice to the Federal Public Prosecutor’s Office. The AGU’s representation of the Union is not individual representation of either parent; ACAF, AGU, MPF and the parties’ lawyers have distinct roles.

Article 11 of the Resolution provides fifteen days to respond, beginning with filing proof of service in the case record. Article 10, sole paragraph, II, refers to filing the executed writ and Article 231(II) of the CPC for service by a judicial officer. Procedural computation must observe Articles 219 and 224 of the Code of Civil Procedure, the form of service, its entry in the record and events affecting the calendar. The first informal contact date must not be adopted, nor should negotiations or a future hearing be presumed to postpone the defence’s starting point.

Service must also be examined for directions to provide contact details and give prior notice of address changes or absence, under Article 10, sole paragraph, I. The response must address the claim and interim applications, identify relevant evidence and disclose related proceedings or decisions that may require judicial coordination. Insufficient resources require assessment of available legal assistance and court fee relief under Article 98 of the CPC; they justify neither presumed automatic free representation nor neglect of the deadline.

4. The chronological dossier and what each document proves

A chronological account must distinguish directly known facts, third-party information and conclusions still disputed. The applicant must establish the requirements of the claim; opposition under Article 13 must provide material supporting the exception invoked, together with applicable evidence rules. The arrangement below is working guidance rather than an exhaustive list of documents mandatory in every case:

Previous habitual residence: periods of presence, schooling, healthcare, housing and other records of the child’s life. Stated nationality and address must be distinguished from the Convention issue actually disputed.
Custody rights and exercise: relevant legislation, decisions, agreements and evidence about care and the power to decide residence, including exercise that would have occurred without the removal. Absence of a sole-custody judgment does not exclude rights arising by operation of law.
Removal or retention: permissions, itineraries, travel dates, intended duration and communications about return or remaining. Temporary permission must be presented with its conditions rather than converted into consent to permanent relocation.
Consent or subsequent acquiescence: complete conversations, agreements and individual conduct within their temporal context. Negotiating a solution and trying to maintain contact should not receive conclusive meaning without analysis.
Context of departure and obstacles to protection: incidents of violence, emotional abandonment, failures of care, housing difficulties, economic dependence and isolation, identifying their effects and the measures actually sought.

Communications should be preserved with context and identification of origin, avoiding selective transcripts that distort their meaning. For foreign decisions and documents, their object, issuing authority and connection to the disputed fact must be explained. Article 14 permits direct notice of the law and decisions of the state of habitual residence for determining wrongfulness, without the specific procedures it dispenses with. That facilitation is not unrestricted recognition of every effect of a foreign decision.

Difficulty obtaining consent or accessing justice abroad should be documented through the circumstances encountered, without presuming inevitable refusal of permission because of a parent’s nationality. Nor should every maternal departure be presumed necessary or an allegation of violence presumed false. Defensive value lies in proof of the facts and their Convention relevance rather than generalisations about binational families.

5. Domestic violence, grave risk and evidence of protection

Reliance on Article 13(1)(b) requires connecting grave physical or psychological risk, or an intolerable situation, to the child’s return conditions. Direct assault, moral or psychological violence against the caregiver, threats and impairment of care must be identified individually. A prior criminal conviction is not required, but allegation, recording, technical assessment and adjudication must remain distinct. An incident report, protective measure and professional report have their own objects and scope.

The STF’s official report of 27 August 2025 reproduces the holding in ADIs 4.245 and 7.686: grave risk must be interpreted in light of best interests and a gender perspective, allowing the exception on objective, concrete indications of domestic violence even without a direct child victim. The defence must make those indications assessable and explain their connection to return. An allegation does not automatically justify refusal, nor does absence of direct assault on the child exclude the issue.

Safety assessment must cover measures actually available and their effectiveness, addressed as guidance in the HCCH Guide to Good Practice, Part VI. Documents may clarify protection already requested, decisions, breaches and actual access to necessary support. Material insecurity and isolation merit their own assessment; they do not justify generic comparison of living standards offered by each country or caregiver. Each item’s relevance depends on the alleged risk and the care conditions actually considered.

6. Record Article 12’s milestones without confusing procedures

The timeline should separately identify the date of the allegedly wrongful removal or retention, receipt of cooperation by the Central Authority, commencement of proceedings and subsequent acts. Under Article 12, the one-year period relates to commencement before the competent judicial or administrative authority of the state where the child is located. Return remains prescribed after one year, subject to proof of settlement in the new environment; mere passage of the period does not automatically defeat the application.

Articles 12(V) and 14, § 3, of CNJ Resolution No. 449/2022 refer to receipt of cooperation by the Brazilian state and Central Authority and, in direct proceedings, commencement of the judicial action. Using these provisions requires showing which route was used and which acts occurred. Their domestic milestones must not be presented as the treaty’s literal wording or as making every administrative step necessarily the commencement of Convention proceedings.

Adaptation before Article 12’s proper trigger cannot be used as an independent settlement exception. This does not dispense with examination of another distinct ground, such as grave risk or qualifying objections, where its requirements are invoked. Article 11 requires urgent action and permits requesting reasons for delay after six weeks without a decision; expiry of that interval establishes neither automatic refusal nor an executed return or loss of the right to defend.

7. Seek relevant evidence, a hearing of the child and social information

Articles 369 to 373 of the CPC secure admissible means of proof, determination of necessary evidence, reasoned evaluation and allocation of the evidential burden. Organising the case should identify the particular fact to be proved by documents, witnesses or expert evidence rather than seek every type of expert assessment generically. Article 14, §§ 1 and 2, of Resolution No. 449/2022 provides for requests in the claim and defence, witnesses until case-management directions and possible videoconferencing for those abroad.

Expert evidence, where admitted, requires a defined timetable and object under Article 14, § 4. It is neither presumed necessary in every action nor may urgency be used indiscriminately to disregard relevant concrete indications. The defence should explain the evidence’s necessity, feasibility and connection to the Convention exception, allowing a reasoned decision without turning return proceedings into unlimited investigation of the entire marriage.

Where the child objects, participation must permit assessment of actual opposition to return and adequate age and maturity, without forcing a choice between parents. The age reference in Article 12(III) of the Resolution does not remove Article 13’s treaty requirements. Alongside the hearing, social information from the Central Authority or another competent authority of habitual residence must be considered under Article 13’s final paragraph, assessed with the remaining evidence rather than given automatic determinative value.

8. Formulate the response and coordinate protection, return and custody

The response should conclude precisely which requirements are disputed, which exceptions are maintained and what evidentiary or protective steps are sought. Article 20 may be invoked where return conflicts with the requested state’s fundamental principles on human rights and fundamental freedoms, identifying the concrete incompatibility. It is neither a generic substitute for Article 13 exceptions nor permission to reconsider custody convenience comprehensively.

Interim relief must address each measure’s risk and object under Article 18 of Resolution No. 449/2022 and applicable rules. The court may examine child protection and prevention of further wrongful removal; relief does not follow merely from applicant or respondent status. Where return conditions are disputed, the risk to address, legally available protection and implementation aspects requiring coordination between authorities must be distinguished.

Articles 16, 17 and 19 prevent equating adjudication of return with final determination of custody. Articles 21 and 22 of Resolution No. 449/2022 provide for communication with the state court and regulate the relationship between the Convention application and custody proceedings. A Brazilian custody decision does not, by itself, prevent return. Advice before removal and subsequent support should enable informed decisions about rights, safety and evidence, without promising to prevent return or produce a universal procedural effect.

Frequently asked questions

Does a response submitted to ACAF replace the judicial defence?

No. The administrative submission under MJSP Order No. 688/2024 and the defence in judicial proceedings have their own acts, recipients and periods. Administrative material may be relevant evidence, but judicial service requires a response appropriate to the proceedings instituted.

Does the judicial period start with the first email received?

That cannot be concluded merely from the email date. The form of the act and its recording must be identified. Resolution No. 449/2022 allows fifteen days to respond and refers to filing proof of service; computation must observe relevant CPC provisions and procedural circumstances.

Must foreign decisions always be recognised before wrongfulness can be disputed?

Article 14 permits direct notice of the law and decisions of the state of habitual residence to determine wrongfulness, without the specific procedures it mentions. This provision has its own scope within Convention analysis; it is not general recognition for other effects.

Is a psychosocial expert assessment mandatory in every return action?

Resolution No. 449/2022 regulates expert evidence where admitted, without making it invariably mandatory. Necessity and object must be assessed against relevant questions, existing material and evidence appropriate to the case.

Does administrative closure prevent a subsequent return action?

No. Article 13 of Order No. 688/2024 preserves direct access to competent judicial or administrative authorities. Closure is not a final custody or return judgment.

Official sources

1980 Hague Convention — official HCCH text, particularly Articles 3–5, 11–20, 29, 30, 35 and 38.
Decree No. 3.413/2000 and the promulgated Convention text.
MJSP Order No. 688/2024, particularly Articles 2, 8, 13 and 18.
CNJ Resolution No. 449/2022, particularly Articles 6–18 and 20–23.
Code of Civil Procedure, particularly Articles 98, 219, 224, 231 and 369–376.
STF, communication of 27 August 2025 concerning ADIs 4.245 and 7.686, reproducing the holding; used within that institutional document’s scope, without presentation as the full judgment.
HCCH, Guide to Good Practice, Part VI: Article 13(1)(b), 2020, non-binding guidance on risk assessment and protection.