While Theresa May was very clear, on 17 January, in her speech on Brexit that we would be leaving the single market, she failed to properly address the legal implications of leaving the EU. These are myriad and unlike in employment law, simply incorporating existing EU law into domestic law (as previously proposed by Theresa May in her mooted Great Repeal Bill and confirmed again during this speech) is not going to work in many areas, and especially not for family law. International family law requires comity and reciprocity.
There are undoubtedly aspects of EU law which are detrimental to English (and Welsh) litigants and which can result in unfair outcomes, particularly for the weaker financial party who may not be able to take the best advice at the earliest opportunity. However, the EU framework does provide a degree of certainty and, most importantly, avoids the possibility of competing proceedings and ensures that orders made in one EU member state can be recognised and enforced in another.
The problem with the proposed Great Repeal Bill is that it would force us to adopt rules that we may not like (for example, ‘first to issue’ rules for jurisdiction for divorce under Brussels IIa, or no ability to claim maintenance under the Maintenance Regulation unless one party is resident or both parties are domiciled here, which can cause issues for expats) but with no guarantee that the other member states will play by the same rules. Thus, proceedings issued or orders made in England could simply be ignored.
Ideally, the UK would enter into a bespoke treaty with the EU which could allow us to adopt those aspects of EU family law which work for our systems and citizens, with mutual recognition and an ultimate appeal court in the shape of the Court of Justice of the European Union (CJEU). Unfortunately, this is not only unachievable as a negotiating position, but contrary to the Brexit agenda laid out by Theresa May in her latest speech which requires rejection of the EU, its laws and its institutions (even if in the case of family law the laws are procedural rather than substantive).
Other alternatives that should be considered are:
1. agree to apply all of the EU regulations
(a) with the CJEU as the appeal court
(b) without the CJEU
2. to operate without the EU regulations and to rely on other conventions, particularly those emanating from the Hague
Option one is clearly unachievable politically because:
(a) Theresa May has made it clear we will not accept the jurisdiction of the CJEU
(b) it will not be acceptable to the other member states if we will not abide by the decisions of the CJEU
Option two would certainly be preferable to the mooted Great Repeal Bill and is very much in line with a Brexit agenda as it would require us to stand alone and enter into arrangements that were solely in our national interests. However, putting to one side political considerations, what would be the reality for separating families (such impact cannot be ignored when 27.5 per cent of children born in England and Wales in 2015 had foreign mothers)? The three main areas for consideration are maintenance, children and divorce.
Provided the EU did not refuse to recognise the UK’s accession to the Hague 2007 Convention in its own right (which would be churlish in the extreme and detrimental to those living in the EU), the position for English litigants may actually be preferable to the current system under the EU Maintenance Regulation. Currently, we have to automatically recognise judgments of other member states but outgoing English judgments require a declaration of enforceability. This declaration is also required under the convention, but the same will apply to incoming judgments as well. Both the convention and the regulation allow for jurisdiction agreements. There are no direct jurisdictional rules or lis pendens in the convention. However, under the convention if proceedings are pending in another state and those proceedings were issued first, then that state can refuse to recognise another order.
Similarly, if a judgment has already been obtained in one state, then that state can refuse to recognise the order of another state. Thus, the provisions on recognition operate as indirect jurisdictional rules but without limiting the English court’s ability to make a maintenance order if only one party is domiciled in this jurisdiction. The EU has declared that the provisions for co-operation between central authorities in the Hague Convention apply to spousal maintenance as well as child maintenance so again there is no difference. The convention in theory is more exacting in terms of enforcement as it requires contracting states to have effective measures in their internal laws for enforcement. On balance therefore, it is arguable that the Hague 2007 Convention is not only the equal of the Maintenance Regulation but preferable in some respects. The downside in reality is not the loss of the Maintenance Regulation, but rather the loss of the European enforcement order which allows automatic recognition of UK maintenance orders made by consent.
The position for children if Brussels IIa no longer applies is more mixed, although any loss of protections for children should be avoided. In terms of abduction, the 1980 Hague Convention will still provide a mechanism (albeit slower) for the return of children, including co-operation between the judiciary and central authorities. Similarly, although little utilised at the present, the Hague 1996 Convention provides jurisdictional rules, allows for the transfer of proceedings in certain circumstances and for the recognition of orders relating to children. However, the proposed changes to time limits, appeals and hearing the voice of the child in the recast of Brussels IIa will be lost (assuming the UK had remained in the EU and had signed up to this). There will also be the loss of the EU Charter on Fundamental Rights and Freedoms. This has been central in advancing the rights of the child, for example to have their voice heard and to maintain direct and regular contact with their parents. The UN Convention on the Rights of the Child will remain and has similar scope but has not been incorporated into domestic legislation.
This is where the biggest potential problems for litigants lay if we leave the EU. Since 2001, if divorce proceedings are pending in one member state, subsequent proceedings in another member state must be automatically stayed in favour of the proceedings first in time. This prevents competing proceedings and provides certainty for the litigant. In the absence of Brussels IIa, the courts of England and Wales will revert to forum conveniens with all that entails in terms of cost and complexity for the litigant. There is of course a tension here as Brussels IIa can lead to real unfairness and often greater financial hardship if the stronger financial party can issue first outside of England and the UK has always considered that the potential injustice of Brussells IIa could be tempered by having a hierarchy of jurisdictions, but this has never found favour amongst the rest of the EU. Another advantage of forum conveniens is that there is a greater possibility of reconciliation or alternative dispute resolution (ADR) options which are all but extinguished by the ‘first to issue’ regime. Some commenters would certainly prefer it if we were no longer subject to the jurisdictional rigidity of Brussels IIa, but inevitably the alternative would cause even greater strain on our already creaking family justice system, as well as the requirement for the retraining of a whole generation of family lawyers. The effect on litigants also cannot be under estimated:
’A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed’.
Even when the ‘battle’ is won, there is the risk of a pyrrhic victory as any judgment / divorce may not be recognised elsewhere in the EU as is automatically the case with Brussels IIa. The 1970 Hague Convention on recognition of divorces only currently applies to eight EU member states.
Theresa May’s rhetoric on 17 January suggests that we will not be looking at continuing any part of the EU legal framework but whatever negotiating position the UK government takes, it needs to act quickly to avoid uncertainty and unnecessary complexity for separating families; in particular, there is likely to be a vacuum if adequate transitional arrangements are not in place in the meantime.