Resolution Briefing on Brexit – Latest News
Resolution, the Family Lawyers’ Group has produced its latest Brexit Briefing Notes for Family Lawyers. We reproduce the Note below in full for our readers.
The government produced a Technical Notice on Civil Judicial Co-operation on 13 September 2018. This technical notice sets out in some detail the changes the government intends to make in respect of international family law in the event of a no deal scenario. Of course, Resolution will continue to push for a solution with the EU which involves reciprocal arrangements (whether there is an overall deal or not) but it is important that members are aware of what the government is planning in the event of a no deal scenario.
The headlines are as follows:
The ‘first in time’ rules (lis pendens) will no longer apply between the UK and the remaining EU member states so the same rules will apply to cases involving the rest of the world, namely that the English Court will only stay its proceedings if there is another more appropriate forum. However, it is proposed that the UK (with the possible exception of Scotland) will continue to apply the same jurisdictional criteria as the current Brussels II bis regulation, plus crucially sole domicile (which is only currently available where no other EU member state has jurisdiction).
The Maintenance Regulation will no longer apply between England and the remaining EU member states. This means that the restriction on making financial orders based on sole domicile will be removed. The government has stated that the jurisdictional rules which previously applied will be reinstated (so restrictions again on Schedule 1 orders?).
In terms of enforcing UK orders in the EU (and vice versa), this will be done via the Hague Maintenance Convention 2007.
The 1980 Hague Convention and the 1996 Hague Convention will broadly replace Brussels IIbis in respect of abduction, and jurisdiction and parental responsibility respectively. Our views as to the gaps are set out here.
The UK will recognise domestic violence injunctions from other EU member state but not vice versa. Following consultation with us (acknowledged in the explanatory memorandum), a new SI had been drafted. Crucially this does not include Scotland, but this is presumably because the Scottish Parliament has to enact its own legislation rather than there having been a principled objection to this in Scotland. Subject to the lack of uniformity across the UK and the absence of reciprocity with the EU on this issue, we consider that this SI should be made and may assist British Citizens returning from another EU Member State where they have been subjected to domestic violence.
The notice is entirely silent on the previously mooted transitional period. As we have previously reported, there appeared to be a high likelihood of a transitional period until 31 December 2020, during which the existing rules would remain in place and the CJEU would continue to have jurisdiction over family proceedings involving the UK and the other EU member states. If this is to be shelved, this would mean that the new rules would apply from Brexit day and therefore there would be a very steep learning curve for members and judges. It would also mean that the thinking time that this would have bought would be lost and this may in turn have led to a solution in respect of agreeing a new reciprocal arrangement.
It is also unclear as to what rules will apply to existing agreements, judgments and proceedings. Again, it was originally believed that the current rules would continue to apply to (a) existing judgments (b) proceedings which were underway and any judgments arising from those proceedings and (c) jurisdiction clauses in maintenance agreements, together with proceedings and judgments arising from those agreements. The technical notice has indicated that this is what will happen but clarification is needed.
There are serious concerns about the recognition of UK divorces in the rest of the EU as the Hague 1970 Divorce Recognition Convention only applies to some of the EU states which means that unless the EU signs up en masse, UK divorces will not automatically be recognised in all EU member states. It is accepted that many EU states will recognise UK divorces but this may not be assumed where there are parallel proceedings and may be a particular issue in Ireland.
As referred to above, there is no guarantee that Scotland will adopt the same jurisdictional criteria which means we could have different rules in Scotland and the rest of the UK. The full implications of this are not that clear and will depend on what happens in Scotland. However, at the very least, it is a further issue of uncertainty.
In terms of maintenance, there may be a two day gap between enforcement under the Maintenance Regulation and enforcement under the Hague Convention 2007; decisions made in the UK based on sole domicile of one of the parties may not be enforced under the Hague Convention 2007 in the rest of the EU; it is unclear whether jurisdictional clauses in respect of maintenance will be automatically respected or whether these will be one of the factors for consideration in a forum conveniens dispute; and it is unclear whether the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 will continue to apply intra UK.
We are asking the Ministry of Justice for clarification of some of the issues highlighted above and will update members when this clarification is received. We will also push them about the prospect of a deal in respect of family law, as we have yet to see what solution the government is proposing as a dispute resolution model in the event that the UK/EU will not agree to the CJEU remaining as the final arbiter of disputes in this field. We believe that both sides would wish to continue reciprocal arrangements and the CJEU is the sticking point (the UK government of course maintaining that this is a red line and that in no circumstances can our laws be subject to the decisions of the CJEU; whereas Resolution consider that a distinction can and should be made in family law).
If there is no deal and putting to one side the issues for our clients if there are no reciprocal arrangements in certain areas, this will (as highlighted in the Technical Notice) mean amendments to our existing laws. This of course offers an opportunity to shape the future of international family law from a UK perspective and Resolution’s Brexit Working Party is considering the sort of changes we would like to see in this area.
Paradigm Family Law’s very own Frank Arndt has the additional information on another aspect of relevant EU regulations:
The International Recovery of Maintenance (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007) (EU Exit) Regulations 2018
These Regulations, which come into force on exit day (i.e. 29 March 2019 at 11 pm), are made in exercise of the powers in section 8(1) of the European Union (Withdrawal) Act 2018 in order to address failures of retained EU law to operate effectively and other deficiencies (in particular under section 8(2)(e)) arising from the withdrawal of the United Kingdom from the European Union.
These Regulations make amendments to legislation in the field of private international law, relating to the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, done at The Hague on 23 November 2007 (“the 2007 Hague Convention“). The UK has applied the 2007 Hague Convention since 1 August 2014 by virtue of the EU’s conclusion of that Convention, and thus it will cease to apply to the UK on exit day. These Regulations retain the directly effective rights and obligations etc derived from the 2007 Hague Convention in domestic law in the UK, both in relation to maintenance obligations and requests for maintenance that will lose the benefit of the Convention upon exit day, and in relation to maintenance obligations and requests for maintenance to which the 2007 Hague Convention will once again apply when the UK ratifies that convention in its own right.
Part 2 of the regulation identifies the rights, powers, liabilities, obligations, restrictions, remedies and procedures which are derived from the 2007 Hague Convention and recognised in domestic law by virtue of section 4 of the European Union Withdrawal Act 2018 (“the section 4 rights”). That Part further makes provision regarding how the section 4 rights are to apply to maintenance obligations and requests arising before exit day, those arising after exit day but before the 2007 Hague Convention again enters into force for the UK, and to those to which the 2007 Hague Convention will apply in accordance with the provisions of Article 56 of that Convention when the Convention again enters into force for the UK.
Part 3 of the new regulation makes modifications in relation to primary and secondary legislation relating to the 2007 Hague Convention, applying it to the section 4 rights as they apply to maintenance obligations and requests arising before exit day, and those arising after exit day but before the 2007 Hague Convention again enters into force for the UK.
Furthermore Part 4 revokes retained direct EU legislation consisting of two Council Decisions relating to the signature and conclusion of the 2007 Hague Convention by the EU.
If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank or Evelyn. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us to [email protected].