Visitor submit by Janaína Albuquerque, Worldwide Household Lawyer; Analysis Affiliate on the NOVA Centre for the Research of Gender, Household and the Legislation; Authorized Coordinator at Revibra Europa. Janaína represented Revibra, Instituto Maria da Penha and Instituto Superação da Violência Doméstica as amici curiae within the instances mentioned beneath.
The Brazilian Supreme Court docket has lately delivered a landmark judgment in two Direct Actions of Unconstitutionality (Ações Diretas de Inconstitucionalidade, or ADIs), specifically ADI 4245 and ADI 7686, in regards to the utility of the 1980 Hague Conference on the Civil Elements of Worldwide Youngster Abduction(1980HC). Regardless of their denomination, these actions didn’t goal to invalidate the Conference, however quite to harmonize its interpretation with the ideas enshrined within the Brazilian Federal Structure.[1]
The total written judgment has not but been revealed. What follows is the official abstract, which consolidates the details reached by the Justices:[2]
“The Court docket unanimously dominated partially in favor of the requests made in ADI 4.245 and, by majority vote, dominated partially in favor of the requests made in ADI 7.686, on the next grounds:
To interpret Artwork. 13(1)(b) of the 1980 Hague Conference in conformity with the Structure, recognizing that the exception to the rapid return of the kid on account of grave threat to his or her bodily or psychological integrity or insupportable scenario applies in instances of home violence, even when the kid will not be a direct sufferer, offered that goal and concrete indications of the chance scenario are demonstrated, in accordance with the precept of the most effective pursuits of the kid (Artwork. 227, CF/1988) and underneath a gender-based perspective (Arts. 1, III, and 226, § 8, CF/1988);
To find out that the Nationwide Council of Justice (CNJ) ought to set up an inter-institutional working group to arrange, inside 60 (sixty) days, a proposed decision aimed toward growing the velocity and effectivity of worldwide youngster abduction return proceedings, making certain, by adversarial proceedings and full protection, that the ultimate choice on the return of the kid is made inside a interval not exceeding 1 (one) yr;
The decision, which is able to convey CNJ Decision No. 449/2022 into line with the phrases of this choice, will set up the responsibility of the respondent to report the existence of any ongoing youngster custody proceedings within the nationwide territory and can assign the administration of such proceedings within the nation to the CNJ’s Nationwide Discussion board for Kids and Youth (Foninj). The requirement for adversarial proceedings and full protection applies each within the instances of Artwork. 1 and Artwork. 12 of the Conference. Public and infamous info and guidelines of expertise (Civil Process Code, Arts. 374 and 375) can even function components of conviction;
To find out that the Federal Regional Courts situation normative acts to advertise the focus of jurisdiction to course of and choose actions associated to the 1980 Hague Conference, with regard to restitution proceedings, in a number of courts within the capital and judging chambers, based mostly on Artwork. 96, I, “d,” CF/1988, aiming at procedural uniformity and celerity;
To find out the institution of specialised help facilities inside the Federal Regional Courts to encourage conciliation, the adoption of restorative practices and methodologies, to qualify and coordinate the efficiency of psychosocial assessments, and to behave as a supply of technical and methodological help for judges;
To find out that the our bodies of the Judiciary Department, with the help of the CNJ, alter the digital case administration techniques to allow the inclusion of preferential processing tags for all instances that obtain the topic code “10921 Youngster Restitution, 1980 Hague Conference,” as established in Artwork. 27 of CNJ Decision No. 449/2022;
To find out that the Government Department undertake structural and administrative measures to strengthen the work of the Federal Central Administrative Authority (ACAF), with the definition of targets, timelines, and efficiency indicators;
To find out that the Government Department evaluates the comfort of Brazil’s accession to the 1996 Hague Conference (on jurisdiction, relevant legislation, recognition, enforcement, and cooperation in issues of parental accountability and safety measures for kids), with the preparation of a technical report back to be forwarded to the heads of the three branches of the federal government;
To find out that the Government Department, by the Ministry of International Affairs, shall put together, inside six months, a protocol for helping girls and youngsters who’re victims of home violence, to be adopted in all Brazilian consular models overseas, taking as a reference the pilot venture developed by the Consulate Common of Brazil in Rome;
To name on the Legislative Department, in dialogue with the Government Department, to evaluate the necessity for particular laws to manage the 1980 Hague Conference, significantly with regard to the procedural and evidentiary facets of its utility;
To find out that Federal Regional Courts and Courts of Justice enter into judicial cooperation agreements to ascertain protocols for coordinated motion in instances of worldwide youngster abduction, together with, amongst different measures, the sharing of data referring to custody actions and actions based mostly on the 1980 Hague Conference and the joint use of multidisciplinary buildings and groups, particularly for the manufacturing of professional studies;
As soon as it’s acknowledged that the situations set forth within the Conference for figuring out return will not be met, that the Brazilian courts’ jurisdiction, because the discussion board of the taking mum or dad’s domicile, is established to determine on the substantive points concerned within the case, together with the custody of the kid.
Lastly, the next judgment thesis[3] was established:
The 1980 Hague Conference on the Civil Elements of Worldwide Youngster Abduction is appropriate with the Federal Structure and has supra-legal standing within the Brazilian authorized system on account of its nature as a global treaty for the safety of kids’s rights.
The applying of the Conference in Brazil, in gentle of the precept of the most effective pursuits of the kid (Artwork. 227, CF), requires the adoption of structural and procedural measures to make sure the swift and efficient processing of actions for the worldwide restitution of kids.
The exception of grave threat to the kid, offered for in Artwork. 13 (1)(b) of the 1980 Hague Conference, should be interpreted in a way in line with the precept of the most effective pursuits of the kid (Artwork. 227, CF) and underneath a gender-based perspective, in order to permit its utility when there are goal and concrete indications of home violence, even when the kid will not be a direct sufferer.
All in accordance with the vote of Justice Luís Roberto Barroso (President and Rapporteur). Justice Dias Toffoli was partially defeated in ADI 7.686, as he thought of the motion to be fully effectively based. Plenary session, August 27, 2025.”
The judgment launched three essential improvements that may standardize and form the interpretation of the Conference going ahead. First, by recognizing home violence as an controversial exception underneath Artwork. 13(1)(b), the Court docket established that this floor can not be dismissed on the idea that it isn’t expressly talked about within the Conference. Second, the clarification that kids needn’t be the first victims ensures that courts can not disregard proof exhibiting that they merely witnessed the violence, since such publicity additionally constitutes hurt. Third, the instruction to guage abduction instances by a gender-based lens acknowledges the a number of and intersecting vulnerabilities confronted by migrant girls and requires a contextual evaluation of every scenario.
However, the central unresolved situation considerations the evidentiary threshold. Whereas the Court docket established that proof is required, it additionally indicated that the usual must be decrease, with out clarifying what qualifies as goal and concrete indications of violence enough to configure grave threat. Given the repeated acknowledgment of the obstacles confronted by migrant moms, it appears evident that demanding felony convictions would set the bar far too excessive. What stays unsure is whether or not police complaints, medical information, social service evaluations, psychological studies, and even documented however unsuccessful makes an attempt to acquire help within the State of origin will suffice. This definition can solely be constructed with time and thru the sensible utility by home federal courts.
The timing of the judgment coincides with the group of the Second Discussion board on Home Violence and the 1980 Youngster Abduction Conference, scheduled for October 2025 in Fortaleza, Brazil. Constructing on the discussions initiated on the first assembly in Sandton, South Africa, in 2024, the Discussion board will as soon as once more convene specialists from all over the world to mirror on the persistent challenges posed by instances involving allegations of home and household violence. On this setting, the latest choice of the Brazilian Supreme Court docket will doubtless function some extent of reference for its methodological contribution to advancing a gender-sensitive and human rights-based method.
Background of the Actions
ADIs are a particular type of proceedings that will solely be launched by the President of the Republic; the President of the Senate, the Chamber of Deputies, or state legislative assemblies; the Brazilian Bar Affiliation; the Legal professional Common; political events; or nationwide unions. In contrast to abnormal judicial proceedings, whose results solely prolong to the events, ADI rulings have erga omnes impact and are endowed with binding pressure, compelling compliance by the Judiciary, the Legislature, and the Government in any respect ranges.
The primary ADI (4245) was filed in 2009 by the now-dissolved Democratas get together (DEM), lower than a decade after Brazil’s ratification of the Conference and towards the backdrop of the Sean Goldman case.[4] The dispute involved the wrongful retention in Brazil of a 4 year-old youngster habitually resident in the USA, resulting in prolonged proceedings underneath the 1980HC. Though decrease courts initially concluded that Sean had grow to be settled within the new surroundings, the Supreme Court docket finally ordered his return 5 years later following the dying of the taking mum or dad. The litigation attracted intense media scrutiny and sustained important political and diplomatic strain. Its repercussions additionally contributed to the enactment of the Sean and David Goldman Worldwide Youngster Abduction Prevention and Return Act of 2014[5] in the USA, a statute designed to strengthen governmental responses to abduction instances and to supervise compliance by different Contracting States.
Prompted by these circumstances, the DEM get together introduced the matter earlier than the Supreme Court docket to evaluate whether or not the style through which the Conference was being utilized was appropriate with the constitutional framework. Their concern was that, following the damaging repercussions of the Goldman case, home authorities had adopted an automatic-return method with out enough consideration of the particular circumstances of every case, thereby infringing elementary ideas akin to human dignity and the most effective pursuits of the kid.
The initiating utility requested that return orders and pressing measures be issued solely after due course of and a case-specific evaluation; that the one-year time restrict not prevail over the most effective pursuits of the kid; and that the grave threat exception be interpreted broadly. It additional sought to restrict the Legal professional Common’s Workplace’s legitimacy to provoke return proceedings, to situation the effectiveness of international custody choices on recognition by the Superior Court docket of Justice, and to protect the validity of home custody rulings. The principle authorized foundation invoked was Artwork. 227 of the Structure, which enshrines the precept of ‘integral safety’ and imposes on the household, society, and the State the responsibility to make sure, as an absolute precedence, kids’s rights to life, well being, schooling, dignity, and safety towards neglect, exploitation, and violence.
ADI 4245 remained with out important developments for 15 years, till a listening to was scheduled for the presentation of oral arguments in Might 2024. The judgment was set to happen in August 2024, but, the Socialism and Liberty get together (PSOL) filed one other ADI (7686) in July of the identical yr, which led to the suspension of the primary in order that each might finally be judged collectively.
The circumstances surrounding the second ADI differed, regardless of being equally propelled by not one, however quite a few broadly lined instances, which had been additional amplified by social media. Most concerned moms who had fled to Brazil after experiencing discrimination and home violence overseas, but, whose kids had been nonetheless ordered to return. Public strain and social mobilization had been decisive in bringing these points to the forefront and making them the central focus of the proceedings.
As regards the deserves, ADI 7686 contained just one request: that suspicion or indications of home violence within the international nation be taken under consideration when assessing the grave threat commonplace and the applicability of the exception underneath Artwork. 13(1)(b) of the 1980HC, in order that kids wouldn’t should be returned The authorized foundation rested totally on Artwork. 226 (8) of the Structure, which explicitly establishes the State’s optimistic obligation to ‘guarantee help to the household within the particular person of every of its members, creating mechanisms to suppress violence inside the household’.
Oral arguments in ADI 7686 had been offered in February 2025, however the rendering of the Justices’ votes solely started in August. The case was thought of by the Plenary of the Supreme Federal Court docket, composed of 11 Justices, of whom a single member is a girl. Three periods had been wanted to conclude, and a call was lastly reached on 27 August 2025. Though the written judgment has not but been launched, the hearings had been televised, and every Justice offered a minimum of a abstract of their vote. For readability, the next account is organized thematically quite than chronologically, highlighting the principle strands of reasoning that emerged.
(i) Gender, home violence and the reframing of the most effective pursuits precept
The deliberations revealed a broad consensus that gender inequalities are central to the analysis of return requests underneath the Conference, significantly the place home violence is raised. Justice Barroso, rapporteur of the case, underscored that almost all taking dad and mom are moms fleeing from abandonment or abuse, cautioning that computerized returns in such circumstances threat perpetuating cycles of violence. Justices Mendonça and Cármen Lúcia echoed this concern, stressing that intimate-partner violence destabilizes the household surroundings and thereby locations the kid in peril.
Justice Moraes added that the prevalence of taking moms displays structural patriarchy, requiring an interpretation of the Conference constant not solely with the requirements inscribed in home legislation but in addition with worldwide human rights devices such because the UNCRC and the Conference of Belém do Pará. Justice Dias Toffoli supported this method by grounding it within the Conference’s personal structure, highlighting a mixed interpretation of Arts. 13(1)(b) and 20, insofar because the latter gives that courts could refuse the return when such an order would battle with the elemental ideas and freedoms of the requested State.
Taken collectively, these positions signalled a jurisprudential shift: the Conference’s effectiveness in Brazil will henceforth be measured not solely by the velocity of returns however by its capability to reconcile worldwide cooperation with the substantive safety of girls and youngsters.
(ii) Procedural and evidentiary requirements
A central side of the talk revolved across the difficulties confronted by migrant girls and their intersecting vulnerabilities. Justice Barroso argued that imposing an ordinary of irrefutable proof in instances involving home violence is each inconsistent with the Conference’s requirement of urgency and detrimental to the most effective pursuits of the kid. He pressured that migrant moms are continuously lower off from institutional sources and remoted from their help networks, which, compounded by linguistic and cultural obstacles, place them at a major drawback in producing proof. Justice Toffoli additional developed this argument, insisting that courts should apply a gender-based perspective and provides decisive weight to victims’ testimonies, exactly as a result of these structural limitations can’t be overcome by procedural formalities.
Alongside evidentiary points, the Justices devoted shut consideration to procedural safeguards. Justice Flávio Dino criticised the privileged function of the Legal professional Common’s Workplace, noting that its authority to provoke proceedings produces inequality of arms. Whereas the pursuits of left-behind dad and mom are defended, even when illustration is for the State, taking dad and mom will not be ensured entry to authorized help. Constructing on this concern, Justice Cristiano Zanin drew consideration to the absence of a particular legislation governing Hague instances in Brazil. In his view, this vacuum not solely generates procedural uncertainty but in addition creates room for jurisdictional conflicts, particularly when custody proceedings are initiated domestically in parallel with return requests.
Different votes highlighted the persistent pressure between effectivity and equity. Justice Nunes Marques pressured that the Conference’s effectiveness relies on swift choices and prompt expertise and mediation as instruments to speed up outcomes. Justice Barroso, nonetheless, set this pursuit for velocity towards the structural actuality of Brazil’s civil process, which, although meant to guard due course of, is overly complicated and has grow to be a recurrent supply of delay. Justice Dino famous that, in consequence, courts continuously resort to pressing measures, granting return orders with out analysing the case in depth and even with out listening to the taking dad and mom, a follow he thought of incompatible with constitutional ensures. Justice Luiz Fux disagreed with Dino on this level, resisting the view that judicial discretion must be in any manner restricted.
(iii) Measures to strengthen the appliance of the Conference
Aside from the interpretative parameters and procedural elucidations, a sequence of proposals had been superior to strengthen the Conference’s operation by systemic measures and reforms. Consensus emerged across the want for standardized protocols in embassies and consulates to make sure constant help and dependable mechanisms for processing studies of abuse. As well as, the Justices addressed the home judicial construction, calling for stronger coordination between federal and household courts and for the usage of liaison judges to enhance communication with international authorities. The Court docket additionally inspired research to help legislative initiatives, together with the prospect of Brazil’s accession to the 1996 HCCH Youngster Safety Conference as a part of a broader effort to align institutional follow with worldwide requirements.
A ultimate strand of dialogue was devoted to the participation of kids. Justice Cármen Lúcia pressured that they should be recognised as rights-bearing topics and that procedural mechanisms must be developed to safe their direct involvement in return proceedings. At current, the legislation gives just for the listening to of kids from the age of 12 and accommodates no steerage on the style through which their statements are to be obtained. Making certain that kids’s views are successfully taken under consideration was thus deemed important to aligning the Conference’s operation with the precept of integral safety enshrined within the Structure.
[1] Out there in English at: <https://www.oas.org/es/sla/ddi/docs/acceso_informacion_base_dc_leyes_pais_b_1_en.pdf>.
[2] Out there, solely in Portuguese, at: <https://portal.stf.jus.br/processos/detalhe.asp?incidente=2679600>.
[3] Within the context of Direct Actions for the Declaration of Unconstitutionality (ADIs) earlier than the Brazilian Supreme Federal Court docket, the time period ‘thesis’ refers back to the authoritative interpretative assertion of the Structure that distills the complicated reasoning right into a concise and binding formulation. Arising from the summary constitutional evaluate of statutes, such theses make clear the constitutional that means of contested provisions and be sure that the choice extends past the particular case at hand. By consolidating the follow of formulating theses on the finish of landmark rulings, the Court docket gives readability, consistency, and normal applicability, thereby guiding judges, public administration, and society as a complete whereas establishing constitutional requirements for future instances.
[4] Brazilian Supreme Federal Court docket, 2009 Actions Report. Out there in Portuguese at: <https://www.stf.jus.br/arquivo/cms/principaldestaque/anexo/relatorio_stf_2009__18032010__qualidade_web__orcamento.pdf>.
[5] Out there at: <https://www.congress.gov/invoice/113th-congress/house-bill/3212>.
