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The implications to Family Law of the UK leaving the EU

The result of the recent EU referendum has caused a great deal of uncertainty and confusion as to how the UK will cope with its decision to leave the EU. As noted in an earlier post the implications of the UK’s vote for Brexit will have a significant effect on family law going forwards.

International child law is likely to be affected, especially laws involving child abduction. The general principle that an abducted child has to be returned to the country where they are habitually resident will apply regardless of Brexit because all EU countries are signatories of the 1980 Hague Convention. However, the more intricate European legal provision in this area, Brussels II Revised, is an EU regulation which applies only to EU members. It therefore will not apply to the UK when it exits the EU.

This regulation strengthens and extends the provisions of the Hague Convention. Brussels II in particular specifies that an application for a child’s return must be determined within six weeks, except in exceptional circumstances. This could make it more difficult to get a child who has been removed from the jurisdiction returned swiftly.

Under the key treaties/regulations which govern international children law, namely the 1980 Hague Convention, the 1996 Hague Convention and Brussels II jurisdiction concerning children cases is based on habitual residence. This is the standard test used to determine the law which should be applied to determine a given legal dispute. There is a lot of overlap between these treaties/regulations which may allow cases involving an EU member state to continue as before, even if Brussels II Revised is no longer law in the UK.

Post-Brexit the UK will remain committed to the Hague Convention on International Child Abduction However, there is a risk that it could take longer and be more difficult for a child abduction which takes place between the UK and an EU country to be returned. This may mean that that new agreements may have to be negotiated between the EU and the UK in order to protect rights in the future, and ensure the continuation of an agreement similar to Brussels II.

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