With Brexit imminent, cross border family law has become an impassioned topic. As Britain leaves Europe, the Government is attempting to negotiate a clear set of rules clarifying which courts will hear cases involving cross border family issues, and which country’s laws will prevail. The agreed regulations must ensure that decisions made in Britain are respected and enforced across Europe. If the remaining European countries disagree, contradictory settlements and uncertainties may result, and British court orders may not be upheld overseas.
What is the current position?
European states have traditionally retained their own family laws. While European regulations govern jurisdiction, recognition and enforcing judgments and orders, Britain has three practically independent legal systems in England, Scotland and Northern Ireland.
The EU decides which jurisdiction prevails if proceedings commence in two countries simultaneously. This prevents cases progressing in separate countries concurrently, creating conflicting results. The EU enables enforcement of family court orders throughout member states, ensuring each country cooperates regarding the sharing of information required for child protection and spousal maintenance payments.
Historically, contrasting family law systems of European states have worked together, with member state respecting laws, orders and arrangements made in other member states. Whether this continues post-Brexit depends upon the European Court of Justice guaranteeing reciprocal co-operation between states. The government favours removing Britain from the jurisdiction of the European Court, while incorporating EU law into British law. Concern remains that Britain may subsequently be required to apply European laws, whilst remaining EU states will not need to respect decisions of British Courts.
What could the future hold?
Pre- Referendum, Britain assisted in developing EU regulations which improved several areas including children’s rights. Without safeguards progress made to date may regress post-Brexit.
Currently, the government favours a bespoke arrangement, implementing a new framework to ensure cooperation between legal systems. A voluntary commitment could instead be introduced, binding Britain to the European court and its decisions. Alternatively, the agreements Britain is already bound by, including the Hague convention, may ensure Britain retains certain systems. It has been suggested, however, that whilst the Hague Convention provides a framework for returning abducted children from abroad, it is weaker than the present arrangements and fails to address difficulties regarding reciprocity.
It is hoped that pre-Brexit a solution is reached in the interests of families and any repercussions resulting from implementing a new system are alleviated.