By: Eugenia Dehesa Ramírez
The international return of children is a legal mechanism established to address disputes arising from the wrongful removal or retention of a child outside the State of the child’s habitual residence. This procedure does not seek to determine the merits of custody rights or resolve permanent custody disputes; rather, its purpose is to restore the situation that existed prior to the wrongful removal or retention, preventing one of the parties from obtaining a procedural advantage through the unilateral alteration of the child’s legal and family environment.
Within this context, during its session held on June 3, 2026, the Plenary of the SCJN took a significant step by resolving Constitutional Appeal 5806/2025, announced through Press Release No. 086/20261 , regarding the obligations of judges in international child abduction proceedings to guarantee the participation of children and adolescents, as well as the verification of the circumstances of each case before approving a voluntary return agreement.
In this regard, it is important to refer to the criterion issued by the First Chamber of the SCJN which addressed a fundamental issue regarding the legal nature of this procedure through binding precedent 1a./J. 169/2025 (11th), entitled: “INTERNATIONAL CHILD RETURN PROCEEDINGS. LEGAL NATURE 2 . ” In said precedent, the Court determined that the international return procedure does not constitute a provisional or precautionary measure, but rather a genuine adversarial judicial proceeding.
Previously, some family court judges considered international return proceedings as precautionary measures issued outside formal judicial proceedings. Therefore, under that interpretation, judicial review was limited to verifying the appearance of a valid claim, meaning that it was sufficient for the applicant’s allegations regarding the wrongful removal or retention of the child to appear plausible in order to establish the basis for ordering the child’s return.
The First Chamber of the SCJN determined that such interpretation was incorrect. Since it constitutes a formal adversarial judicial proceeding, international return involves a legal dispute in which the opposing party may challenge the request by invoking and proving the exceptional circumstances established in Articles 12, 13, and 20 of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, including the existence of a grave risk that the return would expose the child to physical or psychological harm or place the child in an intolerable situation.
Therefore, the applicable evidentiary standard requires the court to examine the evidence presented by the parties and issue a final ruling, without the urgency inherent to these proceedings justifying any reduction of the procedural guarantees afforded to the parties. Accordingly, considering the legal nature of international return proceedings as formal adversarial judicial proceedings, the Plenary of the SCJN, in Constitutional Appeal 5806/2025, further defined the obligations of judges in these proceedings to guarantee the participation of children and adolescents, as well as the verification of the circumstances of each case before approving a voluntary return agreement.
Thus, the SCJN strengthened the obligations of judicial authorities by determining that the autonomy of the parents’ will and the urgency of the procedure cannot prevail over the best interests of the child, particularly in contexts involving domestic violence.
The Plenary of the SCJN established that, although the parties may reach voluntary return agreements within the proceedings, judicial authorities cannot approve such agreements automatically. The judge handling the matter has the strict obligation to verify that the parties’ consent was free and informed, ensuring that there are no circumstances of violence or coercion affecting the negotiation process, that there is an adequate balance between the parties, and that the agreement is compatible with the best interests of the child.
The SCJN emphasized that not every case is suitable for a voluntary return agreement. In other words, where one of the parties alleges that they left the State of habitual residence in order to seek protection from an environment of domestic violence —invoking the exception provided under Article 13(1)(b) of the Hague Convention— the judge must conduct a comprehensive analysis of the circumstances and gather all relevant evidence to determine whether such violence affects the child’s safety and well-being.
Additionally, the SCJN established that the participation of children and adolescents is indispensable. Judicial authorities must hear children, take their views into account according to their age and degree of maturity, and provide them with adequate information regarding decisions affecting their rights. As an example, the Plenary of the SCJN issued a judgment in an easy-to-read format addressed to the child involved in the case, explaining the child’s rights in accessible language3.
Likewise, the Plenary of the SCJN emphasized that, although these proceedings must be resolved promptly to prevent the passage of time from affecting the emotional stability and family relationships of children, such urgency cannot result in a lack of substantive analysis by judicial authorities. Therefore, the Court determined that proceedings must be reopened when lower courts fail to hear the child or disregard serious indications of violence.
In conclusion, the criteria issued by the SCJN, which include both the determination of the legal nature of international child return proceedings as formal adversarial judicial proceedings and the criterion established by the Plenary of the SCJN in Constitutional Appeal 5806/2025 during its June 3, 2026 session, strengthen the protection of the rights of children and adolescents by requiring judicial authorities to hear children and take their views into consideration, as well as to conduct a thorough analysis of whether a voluntary return agreement is compatible with the best interests of the child.
1 Mexican Supreme Court of Justice. (2026). The Supreme Court strengthens the rights of children and adolescents in international return proceedings and criminal trials; guarantees greater legal certainty in trust agreements and in the scope of the doctrine of res judicata (Press Release No. 086/2026). https://www.internet2.scjn.gob.mx/red2/comunicados/comunicado.asp?id=8505
2 Mexican Supreme Court of Justice. (2025). International return procedure. Legal nature (Binding precedent 1a./J. 169/2025 (11th)). Federal Judicial Weekly Gazette, 52(V, Vol. 2), 1185. https://sjf2.scjn.gob.mx/detalle/tesis/2031102
3 Mexican Supreme Court of Justice. (2026). Constitutional Appeal 5806/2025: Easy-to-read judgment. https://www2.scjn.gob.mx/Juridica/Engroses/Cerrados/Publico/Proyecto/2026/05/ADR5806_2025.pdf
