It has now been more than 6 months since the UK voted to leave the EU and, despite the ceaseless speculation, there remains a huge amount of uncertainty about the future legal relationship between the UK and the EU. In family law this uncertainty is causing concern, as the EU has been an active player in implementing important legal procedures regarding cross-border disputes relating to children, divorce and financial issues. The UK government has mooted a ‘Great Repeal Bill’ which would initially preserve all existing EU law. This Bill is seen as a simple way of dealing with the problems presented by the interconnected nature of EU and UK law, but there are a number of problems with this proposal. As the family law group Resolution have commented in their Written evidence submitted by Resolution to the Justice Select Committee* the effectiveness of such a Bill could be undermined by the fact that the UK would likely no longer have access to the judicial structures of the EU, and would not benefit from the cooperative nature of the organisation in cross-border issues. Resolution have highlighted the inherent problems in retaining EU laws in the UK legal system while no longer having access to the structure within which these provisions were designed to work.
The key piece of legislation in the area of cross-border divorce and children matters is Brussels IIa (Regulation 2201/2003). In dealing with jurisdictional issues relating to divorce and children matters, the Regulation uses habitual residency as a key factor, and provides that when there are competing jurisdictions the court where proceedings are first begun can seise jurisdiction. The Bar Council Brexit Working Group has outlined the advantages of this Regulation as being: providing certainty about jurisdictional issues, creating a system where enforcement of court orders is straightforward, promoting cooperation between Central Authorities in Member States, and providing protective interim measures in disputes. It is noted that if the Brussels IIa, and other Regulations, were to fall away without adequate replacement this could create a great deal of legal uncertainty that could adversely affect children and families involved in cross-border disputes.
So far, the UK government has not given a clear indication of how it intends to deal with these issues. Both Resolution and the Bar Council have made suggestions in their publications, such as negotiating a new EU-UK treaty to protect the rights gained under Brussels IIa and similar Regulations, or negotiating bilateral treaties with individual EU Member States. However, both these solutions require the political will and resources to make them happen. With so many other legal and political challenges facing the UK and the EU over the next few years, it is hoped that the millions of people with potential cross-border aspects to their family and personal lives will not be ignored during the impending negotiations.
Jemma O’Neill (Solicitor)
Edward Nicklin (Paralegal)