Brexit and children family law: do you need to take urgent steps now?
At 11pm on 31 December 2020 the ‘transition period’ following the UK’s leaving the EU on 31 January 2020 comes to an end.
The end of the 'transition period' will result in EU Regulations and European Court decisions, which have continued to apply during the ‘transition period’, ceasing to apply to all new cases issued after that date. Instead, other existing international instruments, Conventions, and law will apply.
Is urgent action needed?
The below highlights some of the more commonplace issues which may apply to a particular case, although there may be other circumstances where expert advice is needed.
Clients should consider, with their lawyers, whether they need to act urgently now and before 31 December, to take advantage of the current position. If your children case involves any current or historic elements of international or expatriate issues within the EU, you should review the position.
It should be noted that the court service is currently under massive pressure, exacerbated by COVID, and as such, action must be considered without delay. Waiting until later this month may be too late if it transpires that the court does not have the capacity to process and issue the proceedings before the cut off.
Please note that the below relates to the position in England and Wales only.
Should children proceedings be issued prior to 11pm on 31 December 2020?
If proceedings in respect of cross-border children matters are issued before 11pm on 31 December 2020, the current rules will continue to apply to the orders subsequently made in those proceedings.
From 1 January 2021 onwards, Brussels IIa will no longer apply to new cases in the UK. This means that if you do not issue proceedings before the end of the transition period you will not be able to rely on the existing law for jurisdiction issues, or the recognition and enforcement of orders (whether now or in the future) after the transition period.
This includes a situation when further action may be required in the future, possibly for enforcement purposes. From 1 January 2021 other rules will apply which may or may not significantly affect a case.
Why is this important?
A client may want to consider issuing proceedings immediately, and before the end of the transition period, if these issues apply in their case.
Matters concerning parental responsibility and child protection
Brussels IIa currently applies to all EU member states other than Denmark. Brussels IIa takes priority over the 1996 Hague Convention in relation to matters governed by Brussels IIa, where a child is habitually resident in an EU member state.
For cases issued after the end of the transition period, the 1996 Hague Convention will apply to cases between the UK and the EU member states (as well as continuing for all Contracting States outside of the EU). Brussels IIa will no longer apply.
Proceedings concerning children instituted after the end of the transition period will be governed by the 1996 Hague Convention only. There are differences between the jurisdictional provisions of Brussels IIa and the 1996 Hague Convention which may have an effect on the impact of a children case.
After the transition period, a court can lose jurisdiction if a child changes their habitual residence during the course of court proceedings, save for where they have been unlawfully removed or retained.
Jurisdiction choice and retention is a complex area and should be considered with a lawyer if this concerns you.
Transfers of jurisdiction
Currently, it is possible to transfer jurisdiction from one EU member state to another.
For proceedings issued after the end of the transition period, there is still a mechanism for a transfer of jurisdiction under the 1996 Hague Convention. However, there is a potential conflict between Brussels IIa and the 1996 Hague Convention which may impact incoming transfers of jurisdiction from the EU in cases issued after the end of the transition period. It may be argued that it is not possible within these legal frameworks for jurisdiction to be transferred from an EU member state (applying Brussels IIa) to the UK (which is a third country for the purposes of Brussels IIa).
This is a particular problem in cases where children are moved from the UK to other EU member states to evade child protection interventions. At the moment, jurisdiction is often transferred back to the UK in these cases. This specific problem will be resolved in Brussels IIa Recast. However, this will not apply to the participating member states until August 2022, leaving a potential gap.
Recognition and enforcement
Proceedings issued before the end of the transition period will be governed by either Brussels IIa or the 1996 Hague Convention, as elected by the parties.
If proceedings are issued after the end of the transition period, only the 1996 Hague Convention will govern the recognition and enforcement of any orders between the UK and the EU member states (and any Contracting States outside of the EU).
There are subtle differences between the recognition and enforcement provisions of Brussels IIa and the 1996 Hague Convention. For example, mandatory versus discretionary rules respectively when dealing with recognition and enforcement.
Also, enforcement takes place in accordance with the law of the place of enforcement but under Article 28 of the 1996 Hague Convention, there is an extra consideration that the best interests of the child are to be taken into account.
There are differences between the recognition and enforcement provisions of Brussels IIa and the 1996 Hague Convention, which again you should consider with a lawyer if this concerns you.
Child abduction cases should always be acted upon swiftly. Where a child is retained in another country without consent or, for what may be considered an ‘over stayed holiday’, you should always seek legal advice promptly.
Currently, the provisions of Brussels IIa relating to child abduction take precedence over the 1980 Hague Convention. Article 11 of Brussels IIa enhances the provisions of the 1980 Hague Convention but if a case is issued after the end of the transition period there are a number of enhancements that will be lost. Examples are the absolute requirement for cases to be heard expeditiously and to issue judgment no later than six weeks after the application is lodged and/or the opportunity for an unsuccessful applicant to make submissions within three months of a non-return order so that that court can examine the question of the custody of the child, and consider making a return order (the so-called ‘second bite of the cherry’).
Another potential issue, if a court application is brought after the end of the transitional period, is that an EU member state may take a different approach when dealing with cases involving the UK as Brussels IIa obligation will no longer apply and they may not use the 1996 Hague Convention to make binding protective measures for children returning to this jurisdiction.
The requirement to hear the voice of a child in 1980 Hague Convention cases is not a feature of the 1996 Hague Convention. This obligation is drawn from Article 12 of the UN Convention on the Rights of the Child and the EU Charter of Fundamental Rights. This may be of particular concern if your child is of the age where they are vocal about what they want or need.
Other child protection measures
From the end of the transition period, the Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019 provide that an incoming civil protection measure from a participating EU member state shall be recognised without any special procedure being required, and enforceable in the UK without the requirement for a declaration of enforceability.
However, if proceedings are issued after the end of the transition period, outgoing UK civil protection measures will not benefit from automatic reciprocity unless such measures are otherwise enforceable under 1996 Hague Convention, although steps may be taken to deal with enforcement/recognition under different rules. Specific legal advice will be required.
Brussels IIa contains provisions for cross-border cooperation between member states through Central Authorities in matters relating to parental responsibility. This will be lost and requests for co-operation made after the end of the transition period must be made using the cooperation provisions under the 1996 Hague Convention.
Assessments in EU member states
The existing rules about the ability of professionals to work in EU member states on the basis of qualifications gained in their home state is affected by Brexit. There is therefore an even greater need for social workers and other professionals who propose to undertake assessments in an EU member state to ensure that they will not be contravening law within that state.
The above is simply a snapshot of the implications, and the reality is this area of law is complicated and dependent on individual circumstances and connections to particular countries. To avoid or reduce complications after the transitional period has ended, it is advisable to seek legal advice on children matters that involve an international element as soon as possible.