If the UK were to exit from the European Union by, as some have suggested, a simple repeal of the European Communities Act 1972 the headline casualty, so far as family law is concerned, would be that the UK would cease to be a party to the revised Brussels II Regulation (Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) (‘Brussels IIA’). But that would not be the only casualty – all other Regulations (not backed up by domestic legislation) would fall and, in the family law context, that would mean that the UK would cease to be a party to: the EU Evidence Regulation 2001; the EU Service Regulation 2007; the Protection Measures Regulation 2013, and the EU General Data Protection Regulation 2016. Another important casualty would be European Maintenance Regulation 2008. A less obvious casualty (for the reasons explained below) might be that the UK would cease to be a Contracting State to the 1996 Hague Convention on the Protection of Children (the Hague Protection Convention). On a more general level, the Charter of Fundamental Rights of the European Union would cease to apply to the UK and the UK judiciary would cease to be part of the European Judicial Network (EJN).
An alternative strategy potentially espoused by ‘the Great Repeal Bill’ is for the 1972 Act to be repealed but to preserve the current EU rules as part of UK domestic law, the so-called ‘unilateral option’. This would still have the consequence the UK pulling out of the above mentioned instruments in the international co-operative sense, albeit that the UK would continue to apply them unilaterally.
A different strategy is for the UK to seek to be bound entirely or with some modifications to some or all of the above mentioned instruments.
The object of this article is to consider whether, in the context of international family law, we should simply pull out of these EU instruments and – to answer that – consideration needs to be given as to what alternative provisions could be deployed and to whether those alternatives would be as good as the EU rules. If they are not, how can the UK safeguard its citizens? The full version of this article appears in the April 2017 issue of Family Law.