What constitutes international child abduction?

International child abduction occurs when a parent transfers or retains a child in a country other than the child habitual residence, violating the other parent custody rights. The 1980 Hague Convention, incorporated in Brazil by Decree No. 3,413/2000, establishes the mechanism for immediate return of children under 16 who have been wrongfully removed or retained.

How do I request the return of a child to Brazil?

The aggrieved parent should contact the Brazilian Central Authority — ACAF (Federal Administrative Central Authority), linked to the Ministry of Justice. ACAF forwards the request to the Central Authority of the country where the child is retained. Alternatively, the parent can apply directly to the court in the country of refuge. The request should be made within 1 year of the wrongful removal.

What are the exceptions to immediate return of the child?

The Convention provides exceptions in Articles 12, 13, and 20: (1) the child is settled in the new environment after more than 1 year; (2) the requesting parent consented to or acquiesced in the removal; (3) there is grave risk of physical or psychological harm; (4) a sufficiently mature child objects to return; (5) return would violate fundamental human rights principles.

What is habitual residence under the Hague Convention?

Habitual residence is the center of the child social and family life before the wrongful removal. It is not defined by the Convention but constructed through international case law. Courts consider where the child attends school, has friends, family ties, and community connections. The STJ analyzes each case individually, prioritizing factual elements over formal registration.

International Child Abduction and the Hague Convention

Executive Summary

International child abduction — more precisely, the wrongful removal or retention of a minor — is governed by the Convention on the Civil Aspects of International Child Abduction, adopted in The Hague on October 25, 1980. In Brazil, the Convention was incorporated by Decree No. 3,413/2000 and is operated by ACAF (Federal Administrative Central Authority), linked to the Ministry of Justice and Public Security. This guide covers the concept, return procedures, exceptions, the central authority’s role, and Brazilian case law.

Our family law and international law teams represent parents in international abduction cases.

What Is International Child Abduction?

Under the 1980 Hague Convention, international abduction is not limited to criminal kidnapping. It encompasses two situations:

Wrongful removal

Occurs when a parent (or person with custody rights) takes a child out of the country of habitual residence without the other parent’s authorization or a court order. Example: a Brazilian mother travels with her child to Brazil during vacation and decides not to return to the country where the family resided.

Wrongful retention

Occurs when a child travels legally to another country (with authorization) but is not returned within the agreed timeframe. Example: a father takes the child to visit grandparents abroad and refuses to return the child on the agreed date.

Cumulative requirements (Article 3)

For the removal or retention to be wrongful, the following must be simultaneously present:

Violation of custody rights attributed by law, judicial decision, or agreement
Custody rights were actually being exercised at the time of removal
The child had habitual residence in the country from which they were removed
The child is under 16 years of age

The 1980 Hague Convention

Objectives

The Convention has two central objectives (Article 1):

Prompt return of children wrongfully removed to or retained in any Contracting State
Effective respect for custody and access rights existing in one Contracting State in other Contracting States

Fundamental principle: restoring the status quo

The Convention does not decide who has custody rights. Its objective is to return the child to the country of habitual residence so that custody matters may be decided by the competent jurisdiction. It is a mechanism for international cooperation, not a merits adjudication.

Signatory countries

Over 100 countries are parties to the Convention, including Brazil, the United States, all EU countries, Canada, Australia, Japan (since 2014), Argentina, Chile, and Mexico. The complete list is available at the HCCH.

The Brazilian Central Authority (ACAF)

ACAF (Federal Administrative Central Authority) is Brazil’s designated body for operating the 1980 Hague Convention. It is linked to the Department for Asset Recovery and International Legal Cooperation (DRCI) within the Ministry of Justice and Public Security.

ACAF functions

Receive return requests for children wrongfully brought to Brazil
Forward requests for return of children wrongfully taken from Brazil
Locate the child within national territory, with Federal Police and Interpol support
Promote amicable resolution between parents (mediation)
File judicial proceedings for search and seizure when necessary (via the Attorney General’s Office — AGU)

How to contact ACAF

The aggrieved parent must complete a standardized form (available on the Ministry of Justice website) with information about the child, the abducting parent, circumstances of the removal, and documentation proving custody rights. ACAF charges no fees — the service is free.

Return Proceedings

Administrative phase

Receipt of request: ACAF receives the application from the parent or the Central Authority of the country of habitual residence
Locating the child: with support from the Federal Police, Interpol, and Federal Courts
Amicable resolution attempt: mediation between parents for voluntary return
Referral to AGU: if no agreement is reached, the Attorney General’s Office files a judicial action

Judicial phase

The search and seizure action is filed by the AGU before the Federal Court (jurisdiction established by the STF in RE 567,560). The federal judge must analyze:

Whether wrongful removal or retention occurred
Whether the child has habitual residence in the requesting country
Whether the request was made within 1 year (Article 12)
Whether any exception to return applies (Articles 13 and 20)

Decision timeline

The Convention provides that the judicial authority should decide within 6 weeks (Article 11). In Brazilian practice, this timeline is rarely met, with proceedings lasting 6 to 18 months at first instance. The STF has ordered urgency in international abduction cases.

Exceptions to Immediate Return

The Convention provides exhaustive exceptions to return:

Article 12 — settlement in new environment

If more than 1 year has elapsed between the wrongful removal and the return request, and the child is already settled in the new environment, the court may deny return. Settlement is assessed through psychosocial evaluation (school attendance, friendships, community ties).

Return may be denied if the requesting parent:

Consented to the removal beforehand, or
Acquiesced in the child’s stay in the new country without timely objection

Article 13(b) — grave risk

The most frequently invoked exception: return may be denied if there is a grave risk of physical or psychological harm to the child or if return would place the child in an intolerable situation. Examples accepted in case law:

Documented domestic violence against the child or the abducting parent
Documented sexual abuse
Country of origin in armed conflict
Requesting parent imprisoned or with severe mental illness

The Brazilian interpretation of this article is restrictive, per STJ and STF guidance: merely alleging better conditions in Brazil does not constitute grave risk.

Article 13, paragraph 2 — child’s objection

If the child has sufficient age and maturity, their opinion about return must be considered. There is no fixed age; the court evaluates case by case, generally from age 10-12, with multidisciplinary team support.

Article 20 — fundamental rights

Return may be refused if it would violate fundamental human rights principles of the requested State. Applied only in exceptional circumstances.

Habitual Residence

Concept

Habitual residence is the Convention’s key concept. It is not defined in the Convention text but constructed through international case law. It refers to the effective center of the child’s social and family life before the removal.

Determination criteria

Brazilian and international courts consider:

Where the child attends school
Social ties (friends, extracurricular activities)
Presence of extended family
Length of residence at the location
Parents’ intention regarding permanence
Child’s language and cultural integration

STJ case law

The STJ has interpreted habitual residence with emphasis on the child’s factual ties, not on the parents’ formal residence registration. In a landmark case (SEC 11,441), the court determined that a child born and raised in a foreign country maintained habitual residence there, even though the mother had Brazilian nationality.

Prevention: Travel Authorization

To prevent international abduction, Brazil requires express authorization for minors traveling abroad:

With both parents

A child traveling with both parents needs no additional authorization — a valid passport is sufficient.

With only one parent

A minor traveling with only one parent requires authorization from the other, by public deed or specific Federal Police form with notarized signature. Authorization may be permanent (until revoked) or for a specific trip.

Unaccompanied or with third parties

Requires authorization from both parents, by public deed or court order.

Travel without authorization

The Federal Police may prevent a minor from boarding without proper documentation. Unauthorized departure constitutes a wrongful act under the Hague Convention and may trigger immediate search and seizure proceedings.

Mediation and Amicable Resolution

ACAF prioritizes consensual solutions before judicializing cases. Mediation may result in:

Voluntary return with guarantees (provisional maintenance, housing, visitation)
International custody and visitation agreement, judicially ratified in both countries
Regularization of the situation with retroactive consent from the requesting parent

Mediation is especially effective when the abducting parent acted out of fear of losing contact with the child, without intent to harm the other parent.

Legislation and International Instruments

1980 Hague Convention: Civil Aspects of International Child Abduction
Decree No. 3,413/2000: promulgates the 1980 Hague Convention in Brazil
Inter-American Convention on the International Return of Children (CIDIP-IV, 1989): complements the Hague Convention in the Americas
ECA (Law No. 8,069/1990): Child and Adolescent Statute
CPC/2015, Articles 21-25: international jurisdiction
Civil Code, Articles 1,583-1,590: child custody

Next Steps

If you face an international child abduction situation — whether as a parent seeking the child’s return or as a parent defending against return proceedings — contact our family law and international law teams.

For related matters including international divorce, dual citizenship, or document validation in the family context, explore our specialized guides.

This article is for informational purposes only and does not constitute legal advice. Each case has specific circumstances that should be analyzed by a qualified attorney.