by Jeremy D Morley

www.international-divorce.com 

The Attorney General's Office of Brazil has issued a report that recommends that the Brazilian courts should adopt a “broad” interpretation of the Article 13 “grave risk” exception in the Hague Abduction Convention. The Office of the Presidency of Brazil has submitted the report to Brazil's Federal Supreme Court.

A representative of the Attorney General's office has stated that the position now espoused by the President of Brazil is in line with the preferred interpretation of the Hague Convention that proof of violence against a parent is sufficient to authorize a court to refuse to return a child under the treaty.

The Convention is founded on the fundamental idea that international child abduction is harmful to children and should be deterred by requiring that abducted children should be returned expeditiously to the place where they live so that the courts and other authorities there can determine what is best for them and can provide the appropriate protection. The treaty contains certain very limited exceptions to the duty of treaty partners to return children expeditiously. The most controversial is the provision in Article 13(b) of the Convention that children who are abducted to Brazil need not be returned to their country of habitual residence if there is a grave risk that they will be subjected to physical or psychological harm or an intolerable situation. It has always been considered to be essential to the effectiveness of the Convention that the scope of the exception should be limited. The Perez-Vera Report contains the official history of the adoption of the treaty and its statements have been relied on by the Supreme Court and other courts globally. The Report explains that if the grave risk exception were broadly invoked it would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.

There is a long history of non-compliance by authorities in Brazil with the provisions of the Hague Convention, much of which stems from their adoption of a broad interpretation of the grave risk exception and their treatment of Convention cases as if they were conventional custody cases. In April 2024, the U.S. State Department reported to Congress that in 2023 Brazil continued to demonstrate “a pattern of non-compliance” concerning international child abduction in that the Brazilian judicial authorities failed to regularly implement and comply with the provisions of the Convention. The State Department reported that, as a result of this failure, 43% of requests for the return of abducted children to the United States under the Convention remained unresolved for more than 12 months, and that, on average, these cases were unresolved for two years and four months. Furthermore, Brazil was previously cited for demonstrating a pattern of noncompliance in every Annual Report from 2006 to 2023. In June 2024, the U.S. Government delivered a formal diplomatic protest to Brazil arising from its non-compliance with the terms of the Convention.

Although the language of the Convention is expressly limited to a grave risk to the child, the Attorney General's report now recommends a broad interpretation of the exception and states that proof of domestic violence against a parent can be sufficient to establish a grave risk to the child. The Attorney-General's report correctly states that, in most cases in which a parent takes a child to Brazil without the consent of the other parent, the taking parent claims to be the victim of domestic violence. The Convention instructs that such claims should normally be heard in the courts in the country in which the child was habitually residing, except in very narrow cases of clear and proven danger to the child.

However, the courts in Brazil have generally held that the required narrow interpretation of the “grave risk” exception does not apply. The continued refusal of the judicial authorities in Brazil to expeditiously return children who have been abducted to Brazil by Brazilian mothers who assert domestic violence has now been expressly endorsed by the Attorney General's Office and the Office of the Brazilian President. The elevation of this position to official state policy represents their endorsement of Brazil's fundamental violation of the terms of the Convention.

The Brazilian authorities may believe that by limiting the application of the Hague Convention, they are protecting the rights of Brazilian mothers who have suffered domestic violence while overseas. They may not be aware that their conduct has substantial adverse consequences. In particular, it means that courts outside Brazil are necessarily more likely to bar Brazilian mothers from taking their children for family visits to Brazil once they are provided with expert evidence that, if the children are retained in Brazil, it is likely that they will not be returned.