Brazilian new rules on Child Abduction proceedings:
highlights on the Brazilian National Council of Justice Resolution #449
The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“1980 HCCH Convention”) is a successful multilateral instrument adopted by 103 Contracting Parties, including Brazil. Its main purpose is to ensure the prompt return of wrongfully removed or retained children to their habitual residence. It does so by providing a system of cooperation between Contracting Parties and a rapid procedure for the child’s return to minimize the harmful effects of their wrongful removal or retention.
Stay of custody proceedings
The 1980 HCCH Convention has been in force in Brazil since April 2000. As the historical overview of the cases shows, the rapid procedure envisaged by the treaty has been deterred, mainly by jurisdictional conflicts. More often than not, abducting parents seek to clear up their legal standing concerning the child by applying for custody in Brazil. It so happens that while child custody cases are dealt with in State Courts, return proceedings based on the 1980 HCCH Convention are brought before Federal Courts. As a result, many a time, State and Federal decisions collided, as family courts grant custody to the abducting parents, whereas return requests are under the assessment of a Federal Court.
Having been alerted of this jurisdiction conflict and the adverse impact that it had on the expeditiousness envisaged by the 1980 HCCH Convention, the Brazilian National Council of Justice (“CNJ”) enacted Resolution 257 in 2018, directing State Courts to stay custody cases whenever a return request was submitted to the Federal Courts. The CNJ is an entity of the Brazilian Judiciary branch created in 2004 to promote best practices aimed at modernizing and speeding up the services of courts throughout Brazil.
Still, the six-week timeline in article 11 of the 1980 HCCH Convention has not been attained in most cases, prompting the CNJ to take further action. In 2022, Resolution 449 was enacted to promote the effectiveness of the 1980 HCCH Convention by establishing clear procedural rules regarding return proceedings.
For example, Resolution 449 provides that the service of process to abducting parents must be accompanied by invitation to attend a previously scheduled mediation session, whereby the parties will be encouraged to reach an amicable solution. At service, abducting parents are then required to provide their telephone, email, and addresses so that the court can reach them more easily whenever necessary.
Grounds to refuse a return order
Resolution 449 also makes it a point to limit the grounds on which a return request may be challenged to the following:
(i) lack of right of custody of the left-behind parent,
(ii) non-exercise of the right of custody by the left-behind parent,
(iii) the child’s preference to stay (if over the age of 12) and
(iv) the grave risk to which the child would be subject if returned to the habitual place of residence.
Also, evidence requested by the plaintiff or ordered ex officio is to be produced at the outset to not hinder the proceedings for longer than absolutely necessary.
Though still early to tell, Resolution 449 promises to reinforce the commitments undertaken by Brazil when acceding to the 1980 HCCH Convention and thus contribute to the expeditious return of children wrongfully removed or retained to their habitual place of residence.
Read more about child relocation and child abduction in Brazil: Brazil – Careful Child Relocation.