EU law, a family affair
It is likely that EU law will continue to be significant for family lawyers even post-Brexit, and important changes are expected before then
Family practitioners are arguably the branch of the profession most au fait with European law. Regulations, directives and case law permeate everything we do. Then there is the jurisprudence arising from the ECHR, the UN Convention on the Rights of the Child (“CRC”) and the various Hague Conventions.
Our first real introduction to EU law came with the unexpected (to many family lawyers) introduction of the Brussels II Regulation 2000/1347/EC in March 2001. Essentially it extended Brussels I (jurisdiction and enforcement in civil and commercial matters) to matrimonial matters.
Brussels II was revised, from March 2005, by Council Regulation 2003/2201/EC, concerning jurisdiction and recognition and enforcement of judgments, commonly known as Brussels II-bis. This applies in cross-border matrimonial or parental responsibility cases within the EU, rather than intra-UK cases. However it also fundamentally changed domestic family law in Scotland, particularly as to jurisdiction.
Before long there is likely to be further change, through a European Commission proposal of 30 June 2016. Practitioners, post-Brexit, may wonder how this will affect them. In fact it is quite possible that the recast will come into force before we withdraw from the EU, not least because the Government announced on 27 October that the UK will opt in.
It seems likely that the EU content of our law will be fixed on our withdrawal, with our Parliaments then having competency to amend it. That is likely to mean practitioners using EU law for many years to come. We need to work on the basis that if the Brussels II recast does come into force before Brexit, our domestic law will incorporate it.
We must also remember that Brexit does not impact on many “European” aspects of practice, such as the protections enshrined in the Hague Conventions, including Child Abduction (1980) and Jurisdiction etc in respect of Parental Responsibility and Measures for the Protection of Children (1996). Although we are not a signatory in our own right to the 2007 Convention on International Recovery of Family Maintenance, it is understood that the Government intends to accede, after an interregnum, following withdrawal from the EU.
The Brussels II recast brings five main changes, all to the provisions relating to parental responsibility, rather than divorce. The first relates to a desire to bring Brussels II-bis more closely into line with the CRC, which was ratified and acceded to by the UK in 1991. A new article 20 provides that “the authorities of the member states shall ensure that a child who is capable of forming his or her views is given the genuine and effective opportunity to express those views freely during proceedings”.
That obligation applies to new article 12, which deals with provisional, including protective, measures. The recast Regulation removes the possibility in Brussels II-bis that protective orders may be made without a child having the opportunity to express their views. The existing article 23 exception is done away with, and while the new article 20 is to be welcomed, we need to be alive to the fact that the other changes may have significant implications, especially when it comes to recognition and enforcement.
That brings us to new article 27. Currently there is a two-stage process for recognition and enforcement. Article 27 seeks to streamline the process, with automatic recognition of certain decisions. New articles 28-36 mean that the originating court has much greater power: under article 53 the court, in a cross-border case, shall grant an Annex II certificate ex officio “when a decision becomes enforceable, even if only provisionally”. That certificate cannot be gone behind, unless the originating court determines that there has been “a material error” (article 54(1)), or appealed (article 54(3)), and once granted there are strict, short, time limits for recognition and enforcement in other member states (article 32), non-compliance with which requires explanation by the state concerned.
In broad terms, again, this simplified process is a positive step, but some of the protections currently available to oppose recognition and enforcement (the recast grounds will be in new article 38) are lost. The focus will shift to member states being required to respect foreign procedure, which may bring difficulties if we are uncomfortable with some foreign domestic provision that we will have to recognise.
There are significant changes for cases which overlap with the Child Abduction Convention. Articles 22-25 of Brussels II-bis are all revised. The changes see a concentration of jurisdiction to the original court hearing any abduction petition, and a significant limitation on rights to interfere with decisions at first instance (new article 25(4) provides that “only one appeal shall be possible against the decision ordering or refusing the return of the child”).
Some elements of the recast are unreservedly welcome, however, including measures that require better resourcing of central authorities, that deal with the placing of children in other member states, and that seek to replicate some of the most valuable aspects of the 1996 Convention regarding inter-state cooperation. The extent to which we in Scotland will be able to enjoy the benefits of this cooperation, post-Brexit, remains to be seen…
Rachael Kelsey is a director with SKO Family Law Specialists, Edinburgh