While the broader political debate tends to focus on the implications of Brexit for trade and immigration, it is important to note that Brexit may also pose substantial challenges to family law in the transition to a post-Brexit UK.
Cross-border family disputes involving only EU member states are currently governed by EU Regulations that are directly applicable to English law. In particular, EU Regulation 2201/2003, or ‘BIIa’, determines jurisdiction, in other words, where cross-border disputes should be heard and adjudicated upon. BIIa also provides for the recognition and enforcement of decisions of courts throughout the EU, based on a reciprocal relationship between EU member states and the supremacy of the European Court of Justice (CJEU).
There are criticisms of some of the mechanisms contained in BIIa, particularly of its incentivising ‘jurisdictional races’ for parties to issue divorce proceedings in their favoured Regulation state. Nonetheless, it is widely accepted that BIIa reduces delays and creates legal certainty for families in the midst of cross-border disputes concerning divorce, arrangements for children’s residence and contact, child abduction and public authority care of children. In addressing these issues, the Regulation has incorporated and enhanced the provisions of its international equivalents, namely the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. BIIa is heralded as a more robust and efficient legal instrument in international family matters than the Hague Conventions, by establishing a system for judicial cooperation across EU member states, which is governed by the supremacy of the CJEU, in order to create uniformity and certainty.
Given the significance of BIIa in providing a framework for dealing with family disputes across EU Regulation states, there is considerable uncertainty about the effect of Brexit on family disputes as the English courts would no longer be bound by EU regulations. Family practitioners have widely expressed concern about the need for a clear and smooth transition to a new legal framework post-Brexit, so as to safeguard the welfare of children and families at a time when international disputes are becoming increasingly commonplace.
The government’s latest policy paper on proposals for cross-border legal disputes following Brexit, including family disputes, supports maintaining a system of judicial cooperation and reciprocity through a ‘deep and special partnership’. The paper sets out the need to negotiate an agreement with the EU ‘that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the [existing] substantive principles’.
This kind of agreement may in turn help to preserve the current system of mutual recognition and enforcement of decisions across the EU as well as principles for deciding jurisdiction in family cases. Although the proposals are welcome, there remains a lack of clarity as to the extent of judicial cooperation and how the English courts’ new reciprocal relationship with the EU would be achieved in practice, particularly in view of the government’s insistence on disentangling English courts from the supremacy of the CJEU.
The government’s paper also sets out the position in the event that a deal is not reached with the EU. This indicates that existing cases would continue to be governed by the current Regulations while cases in the future might need to rely on Hague Convention treaties. It remains to be seen whether this would jeopardise the safe return of children in cases involving parental child abduction.
Many practitioners consider that reaching an agreement with the EU needs to be given priority. Moreover, there need to be practical proposals for maintaining strong links to the courts of EU member states as well as a coherent plan for transitioning to the new system for managing cross-border cases. If uniformity and certainty in decision-making across borders were not to be properly maintained, the English courts would risk becoming slow and ineffective in dealing with family disputes involving EU member states, which would directly impact on the welfare of those involved, as well as potentially inflating legal fees and producing more acrimonious proceedings. A new partnership between the UK and EU must regulate interactions between the English courts and the courts of member states with certainty and predictability so as to endure that comity is promoted