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Family Law

The leading authority on all aspects of family law

Russell-Cooke , 14 SEP 2017

The landscape for child disputes post-Brexit

The landscape for child disputes post-Brexit
Resolving the complexities of family life across international borders is notoriously complex. However, with Britain’s impending withdrawal from the EU casting an unexpected shadow over the certainty of established legislation, children and their families face an additional layer of difficulty as Britain attempts to untangle itself from existing EU regulations. To manage increasing anxiety, the Government has recently published its vision of the UK’s future partnership with the EU on this key issue entitled ‘Providing a cross-border civil judicial cooperation framework. What does this tell us about how international children law disputes will be decided post-Brexit? Are we any clearer as to what impact this will have on the children caught up in these disputes? Article continues below...
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Current  framework

The paper reminds us of existing EU law governing the different legal systems in cross-border children situations. The most familiar to children practitioners will be the Brussels IIa Regulation (2201/2003) which includes jurisdictional rules concerning parental responsibility and the recognition and enforcement of judgments. There are also EU instruments governing the recognition and enforcement of protection measures (including victims of domestic violence), service of documents, taking evidence, legal aid, mediation and judicial cross border co-operation.

Although to the layperson this legislation may be unfamiliar, it has provided predictability and certainty for international families and their legal advisers for years. For a child caught up in an international residence dispute, the regulations determine which country’s courts will hear a case, the applicable law and how judgments obtained in one member state can be recognised and enforced in another.  For a child facing the harmful effects of abduction to another EU member state, the Brussels IIa regulation provides a safety net mechanism for that child’s safe and prompt return.

All change

Upon Britain’s exit from the EU in 2019, we will lose the specific protections provided for by these regulations. The landscape for children disputes will experience a marked shift and Britain will have to redefine how those protections are to be provided. Whilst this may sound alarming, it is worth remembering that families and practitioners will continue to have recourse to the more familiar treaties and conventions which exist independently of EU membership. In particular, the Hague Convention 1980 (on the Civil Aspects of International Child Abduction) will continue to provide international, tried and tested mechanisms for facilitating the prompt return of abducted children. The existence of these conventions should go some way to reassuring families that in the dire circumstances of a child’s abduction, Britain’s exit from the EU, however it is managed, will not affect our access to these convention protections. The paper also sets out the various other conventions which provide on-going protections for families, including for oversees adoption and recognition of parental responsibility, contact and residence orders.

Despite this reassurance, the government accepts that conventions do not generally provide for the more sophisticated interaction between legal systems that currently specifically benefits UK and EU families. To compensate for this loss, it plans to seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis. In essence, the aim is to reflect the substantive principles of cooperation already established under the current EU regulations, for example Brussels IIa. But whilst this paper sets out its aspirations for future children disputes, the detail of what these agreements will look like is yet to emerge.

The government does at least set out how it sees transitional arrangements for children law disputes operating:

  • for children law proceedings issued before Britain’s departure, EU laws shall continue to apply;
  • if jurisdiction has been established before the withdrawal date, it will continue to apply after the date;
  • for recognition and enforcement of judicial decisions, EU laws shall continue to apply:
    • for all decisions made before the withdrawal date;
    • for any decisions made after the withdrawal date, provided that the proceedings were issued before withdrawal that date.

Summary

The paper recognises that the world is more interconnected than ever and families increasingly come from or reside in more than one country – when things go wrong, 'families need to know they will be able to resolve disputes in a clear, predictable way, without undue delay'.

All of us would subscribe to this overview. With time ticking before Britain’s departure, it is vital that a new legal framework is reached beforehand to avoid an unnecessary legal deficit. Families can and should take comfort from existing global conventions and treaties such as the 1980 Hague Convention which provides children with protection from abduction. However in terms of replacing the more detailed and specific protective EU regulations in the field of international children law, the government has yet to provide any alternative legislation to scrutinise. There is clearly a long road ahead before families and professionals in the field can look forward with confidence.


For more expert opinion on the ramifications of Brexit for family law see the Child and Family Law Quarterly Brexit Special Issue.