22: Are we on a snake or is there a ladder on the horizon?
The harmonisation of family law within Europe is a desirable pipe dream for some and a nightmare scenario for others. As Lord Justice Thorpe said in 2009:
‘the search for harmonisation clearly poses great difficulty, given an enlarged Europe where 25 Member States would be invited to the negotiating table’.
Then came Brussels 11. This initially came into force on 1 March 2001 and subsequently in revised form from 1 March 2005. The new regulation (Brussels 11 Bis) provides a common basis for jurisdiction for divorce, separation and annulment proceedings (and now children proceedings). Basically it lays down a system of clear, understandable rules.
Many viewed with some trepidation the introduction of the Brussels II but in the last 14 years whilst we have not necessarily come to love this piece of pan-European legislation it is now a thing of our everyday lives. To put it crudely, we know where we stand with Brussels II. It has certainly not ended ‘forum shopping’, ie a race by one or both parties to seek to get divorced in the country which is most advantageous to them but it has introduced a degree of certainty. It is part of our domestic law.
Most recently we have had the joys of the EU Maintenance Regulation. This provides for further jurisdiction guidance on maintenance claims.
But what of the future? The EU Regulations provide certainty, predictability and clarity about where legal disputes should be pursued and, also, allow for the automatic recognition and enforcement of judgments throughout the EU. Are these benefits to be lost? How will this impact upon an increasingly mobile population; especially young families with children?
The House of Lords EU Justice-Committee has just published its report into what alternative plans the Government has to replace the loss of EU Regulations which govern co-operation and civil and family law in the UK post-Brexit. The report does not pull punches. The Chairman of the Committee, Baroness Kennedy of the Shaws has said:
‘Unless the Government can agree a replacement of the existing rules on mutual recognition of judgments, there will be great uncertainty over access to justice for families, businesses and individuals.
The Committee heard clear and conclusive evidence that there is no means by which reciprocal rules currently in place can be replicated in the Great Repeal Bill. Domestic legislation cannot bind the other 27 Member States.
We therefore call on the Government to secure adequate alternative arrangements, whether as part of a withdrawal agreement or a transitional deal.’
The Committee was apparently particularly concerned about the loss of those provisions which were of assistance in cases of child abduction and heard evidence that a significant number of children in the UK could suffer serious consequences. It stated that ‘In the area of family law, we are very concerned that leaving the EU without an alternative system in place will have a profound and damaging impact on the UK’s family justice system and those individuals seeking redress within it’.
These are strong findings and strong words. Doubtless solutions will be found but the Committee’s report calls on the Government to publish a coherent plan for addressing the post-Brexit application of the Regulations – ‘and to do so as a matter of urgency’. Hopefully the Government will listen to ensure that there is a ladder readily available at the end of the snake’s tail.