Written evidence submitted by Resolution to the Justice Select Committee

About Resolution
1. Resolution is an organisation of 6,500 family lawyers, mediators and family professionals who believe in a constructive, non‐confrontational approach to family law matters.

2. We also campaign for better laws and better support and facilities for families and children undergoing family change.

3. Our submission relates to the impact of Brexit for family justice and family law in practice.

Executive summary
4. Families benefit from rules which bring legal certainty, and most importantly, limit the length and costs of proceedings in family law cases, for the benefit of both children and their parents. Cross border family law for intra EU-UK cases – whether divorce, children or financial – requires reciprocity.

5. Without reciprocal rules, there can be no legal certainty in treatment with all the ensuing complications, delays and potential costs for families and children.

6. At paragraph 26 below we set out the preliminary questions which we believe need to be answered to ensure that there is a degree of continuity post-Brexit.

7. At paragraph 31 we summarise a short list of steps that the UK should explore to address the family law and private international law gaps post-Brexit. One solution is to consider the desirability and feasibility of the UK, as a third state, to entering into a treaty with the EU to adopt the rules of Brussels IIa Regulation (or its proposed recast), the Maintenance Regulation and other relevant instruments. That treaty might include the Brussels IIa instrument as a whole or selective chapters.

8. However, if the CJEU is no longer the court competent to interpret and apply, for example, Brussels IIa between the UK and an EU Member State, we anticipate there would be difficulties in achieving a harmonious application of the rules in practice.

Likely effects of Brexit on family justice
9. Whilst each individual Member State has its own substantive and procedural rules about family law matters, the EU has been active in many areas relevant to cross-border family law cases including divorce, maintenance, parental responsibility, guardianship, abduction, child protection and taking of evidence. Some of these rules have applied since 1 March 2001.

10. The EU has competence to promote judicial co-operation in civil matters which have crossborder implications. In general, the regulations provide uniform rules on jurisdiction and are based on the principle of mutual recognition – that is, that decisions lawfully made in one Member State should be recognised and enforced in other Member States and the procedures for doing so should be as simple as possible.

11. As more relationships are formed where one or both parties are from other EU states, the potential for lawyers to be required to advise, and the family courts across the UK to rule, on family law cases with an EU dimension has inevitably increased. Because of the extent to which EU law has permeated family law and practice across the EU, every divorce petition is founded on the jurisdictional requirements of the Brussels IIa Regulation (2201/2003).

Similarly, every application for maintenance is founded on the jurisdictional requirements of the Maintenance Regulation (4/2009). The provisions of Brussels IIa are relevant to many aspects of both private and public children law.

12. The proposed recast of Brussels IIa:
i) seeks to enhance children’s rights, referring explicitly to the EU’s Charter of Fundamental Rights and to the UN Convention on the Rights of the Child. It introduces a separate provision on the obligation for courts to give children the opportunity to be heard.

ii) aims to improve the efficacy of return proceedings after international parental child abduction. It requires Member States to concentrate the local jurisdiction for these procedures on a limited number of courts and to limit the number of appeals to one. It clarifies that the six weeks’ time frame applies to each instance. Courts will also have to examine the possibility of mediation and agreed solutions without losing time.

iii) includes many other proposed changes, on issues such as provisional measures, cooperation, the resourcing of Central Authorities, the placement of children in another Member State and a better coordination with the 1996 Hague Child Protection Convention.

13. By announcing the Great Repeal Bill, the Government is taking the first steps on the formal legislative route needed to Brexit following the referendum. As announced, it is assumed that the Great Repeal Bill would “convert” existing EU law into UK law and, in theory, ensure a smooth transition. However, there are at least two clear problems with this potential solution specifically in the field of cross-border family law in practice across the EU:

i) The reciprocity and comity of the remaining Member States is not guaranteed. In practice, there may be little point having mirror provisions once the UK has lost access to the infrastructure which is designed to support it and the mutual recognition that underpins it.

ii) If there is no appellate or adjudicative structure in place then it will be very difficult to resolve any inter-country disputes as to the implementation of the rules.

This is a specialist and complex area of law affecting potentially vulnerable families and their children. It is extremely important to the individuals concerned. Any lack of clarity or the absence of reciprocal rules between the UK and the EU for UK resident families with connections across the EU and British families resident across the EU, including transitional arrangements, for any period of time, would cause substantial unfairness and confusion for families at times of change and crisis. There is the risk of a complex situation arising with families and children simply left in limbo.

15. Resolution’s International Committee members have considered the difference in practice that the Brussels IIa framework has made for client families involved in cross-border children matters, including child abduction, since it was introduced and as it has developed; and some of the problems parents and others would face otherwise and if the improvements proposed in the recast Brussels IIa regulation passed the UK by.

16. Other Conventions (Luxembourg Convention 1980; Hague Convention on Child Abduction 1980; Hague Child Protection Convention 1996) would apply but without the additional overlay of protection of – and the European bespoke framework prescribed by – Brussels IIa.

There would inevitably be a proliferation of cases under the “old law” if that was what remained post Brexit, but Resolution considers that it would be cumbersome and expensive to now apply that in light of the number of families with cross-border links.

17. Reduced (or the absence of) access to Member States through Central Authorities, especially for self-representing parties and child law matters, would frustrate existing channels of communication between Member States and administrative cooperation generally. Brussels IIa provides a framework for cooperation and provision of information through Central Authorities that can be vital evidence in proceedings, including in child abduction proceedings or cases involving a child at risk of harm requiring protective measures.

18. There is a risk of going backwards in terms of delay in responding to abduction cases within the EU, as well as determining jurisdiction and recognition and enforcement of orders more generally in private and public law children cases. Some Member States are slower than others, but cross-border family law matters are generally resolved more swiftly in light of the Brussels IIa framework than they were previously.

19. Processes can be very slow in other EU jurisdictions which do not centralise decision making in a central court, for example, Spain. The recent recast Brussels IIa regulation proposals highlight this and propose centralising decision making in Member States. It would be unwelcome if parents here did not benefit from this and found themselves, for example, at the back of the queue in a local county court equivalent in Spain.

20. In our view the Brussels IIa framework improves the Hague provisions on child abduction through expedition; and reducing the scope for arguments on habitual residence and other issues with less room for arguments around defences.

21. In our members’ experience, enforcement of child arrangements orders is more efficient since the application of Brussels IIa. Although the 1996 Hague Convention provides some recourse, it is expected that there would be a need for more mirror orders without the current enforcement provisions to enforce an order in an EU Member State.

22. We believe that local authorities in their child protection role have also benefitted from streamlined, and as a result more cost efficient procedures. They have benefitted from Brussels IIa and the role of Central Authorities.

23. The non-applicability of Brussels IIa would mean that the lis pendens rule (deferring to the court first seised of a dispute) between EU states would no longer apply. Brexit provides an opportunity to consider the desirability of lis pendens generally. While the first in time rule can give rise to unfair outcomes, and could promote forum shopping, it does provide certainty. Without uniform rules on jurisdiction and the absence of a lis pendens rule, the courts might be inundated with forum conveniens disputes (about the most appropriate forum to take jurisdiction) due to the number of EU nationals living in the UK and cases will be more complicated and expensive for family law clients. Moreover, even if the family court in this jurisdiction declares itself competent, there will be no guarantee that an EU Member State will recognise and enforce that decision.

24. As well as losing the jurisdictional certainty of Brussels IIa, it will be more difficult for clients to enforce maintenance and/or other financial orders in the EU. If the EU instruments no longer apply, there will be no bespoke EU reciprocal enforcement mechanism (and not all EU Member States are subject to and have implemented the relevant Hague instruments) and enforcement will generally be more difficult (for example, at the moment a maintenance order made by consent is directly enforceable throughout the EU without the need for registration).

25. There is also the simple fact that a generation of family lawyers in the UK have no experience of the pre-Brussels IIa and, more recently, the Maintenance Regulation systems on divorce and child law matters.

Questions to be addressed
26. There is a need to consider the implications of Brexit, and any legislative changes necessary, for example to avoid any legal blackhole, in particular in the following family areas:

i) the rules of jurisdiction in the field of cross-border family law (divorce, maintenance, parental responsibility, abduction, child protection);

ii) how intra-EU judgments in the field of family law could continue to enjoy recognition and be entitled to enforcement in the UK, including in relation to child abduction;

iii) whether the conventions approved and ratified by the EU as a REIO on behalf of all Member States (Convention of 30 June 2005 on Choice of Court Agreements and Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance) will continue to apply on the UK ceasing to be an EU Member State. If not, what legislative action is needed to ensure that these conventions continue to apply? There is also a need for clarification of whether the UK should also sign with countries in the process of ratifying treaties not within the realm of the EU’s exclusive competence pending the UK ceasing to be a Member State;

iv) regarding enforcement of maintenance orders, the applicability and desirability of historic instruments/conventions which may remain in force with some of the other older EU Member States; and

v) the impact on children’s rights and safeguards for children affected by proceedings.

27. The Government will also need to provide certainty around transitional arrangements, for example, where a case has not finished by the time the regulations no longer apply or in relation to the recognition of an existing judgment or order.

28. For intra EU UK cases post departure from the EU, couples and children are likely to need at least the same system, albeit by other route/s.

29. As stated earlier, the proposed Great Repeal Bill to convert existing EU law into domestic law, will simply not achieve the same aim of certainty without a cross-border instrument.

30. We consider that falling back on the “old law” would be regressive rather than progressive for the UK.

Steps to take
31. On the basis that cross-border family law requires uniform and reciprocal private international law rules to achieve legal certainty and reduce complexity, delay and cost, consideration must be given to ‘hard law’ solutions including:

i) Bilateral treaties

It would be possible for the government to seek to negotiate bilateral treaties with EU Member States on an individual basis. This strategy would have the benefit of giving the UK complete autonomy to decide which countries it wants to negotiate with and the terms of any negotiation.

The clear disadvantage of this as a potential solution however is the sheer amount of time that it would take to negotiate treaties with numerous different countries. Additionally, there is no guaranteed uniformity and so there risks being a multi-layered matrix of conflicting arrangements across Europe.

ii) Bespoke private international (family) law focused treaty with the EU

A bespoke treaty with the EU could ensure that there is continuity with the application of EU family law relevant instruments. Article 3(2) Treaty on the Functioning of the European Union (TFEU) provides: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its international competence, or in so far as its conclusion may affect common rules or alter their scope.”

This would be preferable to a series of bilateral treaties as referred to above. We think it is possible but it is not certain that the competence for an EU-wide treaty would exist. Even where the EU did establish an exclusive external competence it is not always clear whether the power to act lies with the Commission or with the co-legislators. Additionally, there is no guarantee that the EU would entertain such a negotiation even if external competence could be established.

Regulation 664/2009 establishes a procedure for Member States to negotiate and conclude agreements with non-EU countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations. This Regulation was agreed in the wake of the Lugano Opinion (Opinion 1/03) in order to provide a mechanism for Member States to enter into bilateral agreements with other countries in these matters. Many such agreements already existed when the Lugano Opinion was issued.

The family law instruments of the Hague Conference on Private International Law are not alternative to the existing EU measures. It is accepted that there is benefit in a continuing and complimentary relationship between the EU, Member States and the Hague Conference. The UK should continue to participate at The Hague Conference on Private International Law.

iii) Lugano Convention

In 2007 the then European Community signed a treaty on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters with Iceland, Norway and Switzerland. The treaty is known as the new Lugano Convention and came into force in January 2010. If the UK were to join the EFTA then it would be possible for the UK to accede to and ratify the Lugano Convention. This would potentially resolve the issues relating to jurisdiction and enforcement in relation to maintenance issues (being disputes in relation to property).

However, if the UK were not to stay within the single market then the Lugano Convention will not be a viable option.