Many fathers unknowingly allow their children to travel to Brazil with their Brazilian mothers, and frequently, these mothers choose not to return with the child.
This situation characterizes the well-known Hague International Child Abduction in the modality “illicit retention,” meaning not returning with the child back home, without the father’s consent.
This article offers a strategy for fathers to reunite with their children who have been illegally kept in Brazil, employing the most recent approaches for this purpose.
n 2022, Brazil’s legal changes led to a record number of successful returns in illegal child abduction cases. This complete shift in the conduction of abducted cases came about due to immense pressure from other Countries and from the Hague itself, over many years.
The key to success in the procedure for locating and retrieving an abducted child is speed.
The faster the father acts, the higher the chances of obtaining an injunction for the child’s immediate return.
Under the current perspective of Judges who now are mandatory obligate to follow the new model, the target is to achieve the child’s return within the 06 weeks as stipulated by the Hague Convention. That means, immediately.
Upon receiving the Request for Return, if the Judge notes that the abduction was very recent, they are more comfortable ordering an immediate return. This is because the main exception often cited – the “Child’s Adaptation in Brazil” – becomes inconceivable in such a short timeframe, empowering the Judge to decisively resolve the matter.
This approach has been applied in most cases of immediate return. “As an active professional, I must say that in 2023, I successfully facilitated the return of seven children, a record-breaking achievement in my over 27 years of practicing international family law in Brazil.”
But it’s important to understand that you need to obtain a Court Order in Brazil, which effectively means that the any procedure through the Central Authority in your Country, as well claims before your local courts, become ineffective and a waste of focus and results.
Filing a Hague Convention Request is not a prerequisite to obtain the Court Order in Brazil. Also, the Central Authority’s role in the Hague process is limited to the administrative act of contacting the abductor and suggest “mediation for the voluntary return”, offering 30 more days for her response. If unsuccessful the response and subsequente negotiation, they refer the case to a federal public prosecutor in Brazil to only then, initiate litigation.
Again, you can and must independently file a request for your child’s return at Court in Brazil, without needing to go through the Hague process or Central Authority’s mediation efforts. This expedites your capability not only to obtain a prompt decision, but to prevent the “disappearance” of the child.
Recent legal reforms in Brazil, especially the Law 449/2022, have transformed the federal court cases litigation procedures, streamlining processes, authorizing preliminary decisions determining the immediate return, limiting appeals, inicial hearings in few weeks, and, in general, hugely shortening timeframes.
So you should promptly organize your case, gathering all available information to document the entire incident, like photos, birth certificates, and passports of both your child and the as many clues regarding the mother, from addresses, to all family information in Brazil, etc.
Remember, advocating for your child’s return is exercising your fundamental parental rights.
Act decisively and confidently – your child’s well-being and safe future depends on it.
Thank you!
Mauricio Ejchel
advogasse@gmail.com
www.internationallawyerbrazil.com