Brazil’s adherence to the 1980 Hague Convention on International Child Abduction is once more under scrutiny, now by the European Parliament, as the issue of EU children unlawfully retained in Brazil becomes increasingly visible.

Historically, Brazil faced challenges in handling international child abduction cases, characterized by delays and inconsistencies. These procedural inefficiencies often led to prolonged legal battles, contravening the principle of prompt return under the Hague Convention.

Child abduction rates in the country have soared to unparalleled heights, causing tremendous social reflections; however, the more alarming issue lies with the unreported cases, which are estimated to be three times greater than those officially reported.

Reports from the Hague Conference on Private International Law (HCCH) and the 2023 U.S. Government’s International Child Abduction Prevention and Return Act (ICAPRA) have also unequivocally highlighted concerns regarding Brazil’s compliance with this convention.

In early 2024, this concern reached the European Parliament with the submission of inquiry P-000075/2024 to the European Commission. This inquiry scrutinizes Brazil’s commitment to its international obligations regarding child abduction, specifically aiming to support the numerous EU families facing the illegal retention of their children in Brazil.

The investigation explored the escalating issue of international child abduction, focusing on Brazil’s flexible interpretation of Article 13. It also evaluated further actions to guarantee Brazil’s compliance with global standards.

On behalf of the European Commission, M. Reynders recognized the challenges Brazil faces in implementing the 1980 Convention on Child Abduction. Initiatives were undertaken, including consultations with the HCCH’s Regional Office for Latin America and the Caribbean, as well as engagement with the European External Action Service (EEAS) and the EU Delegation in Brasilia.

Assurances from the European Parliament had led to actions like appointing judges to the International Hague Network and publishing guides for abduction cases, prompting Brazil’s National Judicial Council to address all child abduction cases filed before December 31, 2020, through enhanced training with the HCCH Regional Office.

The evident truth is that diplomatic efforts alone may not suffice for global institutions to guarantee compliance. It becomes necessary to develop new strategies to address this issue, as the indefinite retention of European, North American, or children from any other part of the world in another country without significant repercussions is unacceptable.

Among the new strategies, utilizing the established Judiciary corridor stands out. This involves engaging liaison judges as co-obligated administrative authorities to directly implement actions within the Judiciary aimed at correcting the understanding of the Convention and preventing its diversion into the legal disputes that typically arise following child abductions to Brazil.

In this context, Brazilian judges are expected to implement the provisions of Article 11, which mandates the return of children within 6 weeks, by determining their prompt return through a preliminary injunction without initiating a legal dispute. This approach should become standard practice, particularly when the request for return is made shortly after the abduction.

Furthermore, the exceptions outlined in Article 13, which concern the danger of returning the child, should be applied only in exceptionally rare circumstances. This ensures that the principle of swift and effective resolution in child abduction cases is upheld, focusing on the child’s best interests and the expeditious administration of justice.

In a unified campaign, leveraging the existing infrastructure, available legislation, and conducting a judicial awareness campaign within the Brazilian Judiciary, is what will truly be effective. This approach aims to address and mitigate the profound and agonizing pain of families who have lost their children. It is especially crucial in a country as significant and populous as Brazil, where reversing the impact of child abduction can restore the wellbeing of affected families.

The implementation of specific provisions within the Convention provides a clear path forward. The mandate in Article 11, requiring courts to expedite child return proceedings and issue a decision within six weeks from the start, unless faced with exceptional circumstances, is a crucial measure. 

For Brazil, adopting and strictly adhering to this stipulation could greatly improve its compliance with international obligations and showcase a commitment to efficiently resolving these sensitive cases.

Greetings,

Dr. Mauricio Ejchel

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