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For many, the outcome of the EU referendum on the 23rd June was a surprising and somewhat unexpected result. Whilst most supporters (and critics) often focused on the political and economic aspects of the argument, little weight was given to the rights of children and families in this vital debate.

From a family law perspective, the 28 members of the European Union (EU) work in conjunction with one another, with their laws relating to children often harmonising for the ever-growing number of international families. The laws of the EU often work in conjunction with the European Convention on Human Rights (ECHR), to which the UK is also a signatory. The ECHR sets the legislative framework for human rights, which are backed up by UK law, and is separate from the EU.

The outcome of the referendum, for many of those working in the legal profession, has left the UK in an unfavourable position. Whilst the full effect of leaving has yet to be seen, it is fair to say that the removal of particular Regulations (i.e. EU laws) from our legal system could have worrying and far-reaching consequences. Two examples are given below.

1. Jurisdictional rules:

Uniform jurisdiction rules are applied throughout the EU. This area of law governs the entitlement of a Court (of a Member State of the EU) to hear a certain matter. This tends to apply to international cases concerning child arrangements orders (where a child should live and how s/he is to see the other parent) for a child who has lived in two (or more) Member States and will often be the first element the Court will consider in an application brought by a parent. Currently, the framework operates on a “first past the post basis”. Namely, whoever issues proceedings in a Court that accepts jurisdiction (by the applicant parent showing that the child is habitually resident/has sufficient links to that Member State) will have their case dealt with by that Court, even if another Member State’s Court would be a more appropriate forum. A withdrawal from these rules potentially means that jurisdiction could end up being a solely judicial exercise. This could give rise to increased uncertainty, delay and costs as this would have to be litigated (where a dispute as to jurisdiction arises) before the substantive element of an application can be dealt with. In light of such a change, many may be reluctant to issue proceedings which concern an important part of their child’s welfare.

2. Domestic Violence/ Injunctions:

Civil Orders made in one Member State are generally recognised in all other Member States of the EU. For example, an individual who has obtained a Non-Molestation Order (NMO) (an injunction with is aimed at preventing a partner/ ex-partner from using or threatening violence against an individual and/or their child) in the UK, who then relocates to France would not have to apply to the French Courts to have the Order recognised. The absence of this recognition could place many of those with a NMO in a distressing position as a violent partner could easily travel to where they have relocated without breaching the Order. The torment and possible abuse this may cause an individual (and/or their child) is a major concern, especially given that no alternative safeguarding arrangement has been put forward by government.

The EU is a collective body built on philosophy of co-operation, familiarity and openness. The notion that a country’s handling of international matters in a friendly and collaborative is surely one that reassures many who have a transnational family.

It is unfortunate that the points raised above are unlikely to be placed at the forefront of any upcoming legislative agenda. For many the worries outlined above may become a reality.

On a more positive note, the referendum result seems to have placed government’s plan to leave the ECHR on the backburner, meaning our fundamental rights (such as the right to family life etc.) are still intact, with redress available where breaches occur.

Emma Sherrington (Senior Solicitor) and Tom Trim

Please note the comments in the article are general observations and do not constitute legal advice in any particular case

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