Uncertain times

Lottie Tyler suggests that the impact on family law of the planned departure of the UK from the EU will be wide-reaching.

Since the one-year anniversary of the UK vote to leave the EU, is there any more certainty as to what changes family lawyers should expect in March 2019?

Is Brexit creating complexity for current and future UK/EU family law disputes, or was a UK departure from EU family law already inevitable based on differing attitudes to applicable law?

On 23 June 2016, the UK voted to leave the EU. Almost a year later, on 9 June 2017, the High Court delivered judgment in F v L [2017] on a mother’s appeal against a decision preventing her from relocating with her son to Italy. Russell J, allowing the mother’s appeal, stated:

The fact that as EU citizens his parents’ residence and their status in the UK no longer has the certainty it previously had, and the possibility that relocation to Italy may become a necessity is a factor that should, properly, have been considered by the trial judge.

Within three weeks of the judgment, the UK government’s policy paper on what rights should be extended to EU citizens living in the UK was published (see: www.legalease.co.uk/brexit-safeguarding). This was followed on 13 July 2017 by the publication of the draft European Union (Withdrawal) Bill.

In light of the proposals and the draft bill, are Russell J’s concerns likely to be replicated in other EU relocation cases?

Facts

The parties in F v L were both Italian citizens. Their son was five years old.The father had moved to England to work in 2001, and the mother in 2013 (although their son was born in England in 2012). The parties had been separated and sharing the care of their son since 2015. There were cross-applications before the court with each parent seeking to be the primary carer. The mother had also made an application for leave to permanently relocate with the child to Italy.

The trial judge dismissed the mother’s relocation application, and the mother appealed the decision. Russell J allowed the appeal for the following reasons:

  • In relocation applications, the court should first determine which parent can best meet the child’s needs as their main carer and what the arrangements should be for the child spending time with the other parent, and then consider whether to grant the application to relocate. The judge in this case determined the relocation application first. Additionally, the judge considered the child’s needs in the context of relocation rather than the primary analysis of how the child’s needs were best met.
  • The judge was wrong not to make findings regarding allegations made by the mother of abusive and controlling behaviour on the father’s part, and not to make findings that simply splitting the child’s time between two antagonistic homes with two parents who were unsupportive of each other was not consistent with what was best for the child’s welfare.
  • The judge had given a superficial explanation as to why the court had chosen not to follow the Cafcass recommendation that the mother should be the main carer and be granted permission to relocate to Italy, but had again been looking at the recommendations largely in the context of the relocation application.
  • The judge did not address Family Procedure Rules 2010, PD 12J (as to child arrangements and contact orders, domestic violence and harm), nor explain why that practice direction should not apply in a case where allegations of coercive behaviour had been raised. The judge also relied on the decision of a judge at a previous directions hearing that a fact-finding hearing was not required.

The case was remitted to be heard by a different circuit judge. In concluding, Russell J went on to order that the child was to be separately represented with the Cafcass officer appointed as his guardian. The judge also highlighted the child’s Italian heritage, his long-term welfare and the fact that the majority of his extended family were based in Italy. It was in this context that she referred to the potential uncertain future for both parents in the UK, and the possibility that Brexit could make relocation to Italy a necessity.

How influential was Brexit in Russell J’s decision?

The circuit judge to whom F v L was remitted would have needed to grapple with how much weight to give Russell J’s observations about both parents’ future in England. That judge may or may not be assisted by the proposals made by the UK government on EU citizens’ rights after Russell J’s decision was handed down.

It is clear, however, that the rehearing will not hinge exclusively on the uncertainty for the family created by Brexit as there was a series of fundamental flaws arising from the judgment. There is nothing to suggest that family lawyers should rely on Brexit-generated uncertainty as a primary motivation behind relocation applications. The government’s proposals include offering a ‘settled status’ to EU citizens who arrive in the UK before a cut-off date. Any EU citizen with five years’ continuous residence in the UK will automatically be eligible for settled status.

On the basis of these proposals, the father in F v L would be entitled to settled status and the mother would become eligible for settled status in 2018 prior to the UK leaving the EU. If the government proposals are adopted, the UK leaving the EU as a factor in relocation cases is inconsequential, but the proposals are only proposals and no absolute certainty can be offered to EU citizens.

Does the draft bill offer any certainty regarding other key elements of family law affected by Brexit?

Family lawyers are not only waiting on a definitive answer in relation to EU citizens’ right to remain in the UK. EU law governs jurisdiction on divorce and maintenance claims, provides an accelerated procedure for dealing with child abduction cases within the EU, provides for the recognition of parental responsibility, and deals with matters concerning child arrangements and direct enforcement of both these and maintenance orders in the courts of other member states.

There are a number of relevant civil and family law regulations, but the two that impact on the highest number of family cases are Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (widely referred to as Brussels II bis), and Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the EU Maintenance Regulation). As EU regulations, both have direct effect in UK law and do not form part of UK domestic legislation. Section 5 of the Domicile and Matrimonial Proceedings Act 1973 only states that the courts of England and Wales have jurisdiction in accordance with Brussels II bis, or based on the sole domicile of one party if no other contracting member state has jurisdiction.

On 20 March 2017, the House of Lords EU justice sub-committee published its report, Brexit: justice for families, individuals and businesses? (see: www.legalease.co.uk/brexitjustice). The report concluded that the sub-committee was (para 98):

… not convinced that the Government has, as yet, a coherent or workable plan to address the significant problems that will arise in the UK’s family law legal system post-Brexit, if alternative arrangements are not put in place.

Its concerns focused on Brussels II bis taking precedence over the provisions in the Hague Convention, and the detriment to child welfare in reducing the effectiveness of the existing measures under Brussels II bis, and similarly that reciprocity was essential to the jurisdictional and enforcement provisions within the regulations.

The European Union (Withdrawal) Bill was published on 13 July 2017. It proposes that EU law in force in the UK at the time it exits the EU will immediately prior to exit automatically become UK domestic law. This does not appear to address the fundamental concerns of the sub-committee.

To take divorce jurisdiction as an example, if the draft bill is passed, in March 2019 the UK will continue to apply Brussels II bis (as recast) to determine whether the UK has jurisdiction to hear divorce cases. It is unknown, however, how European countries will consider the status of the UK in this context. Brussels II bis refers to other member states, and without revision to additionally include the UK, the other EU countries will not recognise the UK as a member state.

To illustrate, if Germany and England both had jurisdiction for divorce proceedings, Germany under Brussels II bis and England under domestic legislation replicating Brussels II bis, and a petition was issued first in time in Germany, England would be bound by the first-past-the-post rule and could not challenge the jurisdiction. If a petition was issued first in England, Germany would not consider itself bound by the first-past-the-post rule as England would no longer be a contracting member state. Germany would apply domestic law as to whether it could challenge England’s jurisdiction. The decision to incorporate the regulations into domestic law without guarantees of reciprocity would put the UK at a jurisdictional disadvantage.

In addition, the EU legislative agenda has not stopped following Brexit. As referred to above, on 30 June 2016 a proposal to recast Brussels II bis was published (Brussels, 30.6.2016 COM(2016) 411 final 2016/0190 (CNS)), and has been progressing through the legislative process. This highlights that the UK will have to give future consideration to whether it continues to adopt revisions and amendments to future EU family law as they come into force, as the position will become increasingly confusing irrespective of whether the member states treat the UK as having equivalent provision.

That said, the UK’s position had already begun to diverge from the implementing enhanced cooperation in the area of the law applicable to divorce and legal separation), created an impasse, compromising the EU’s aim to create uniformity in family law across the member states. Brexit or no Brexit, the UK was destined to remain eccentric to a significant number of member states based on its approach to applicable law.

It is conceivable that EU regulations relevant to family law could be adopted as a short-term measure to prevent a jurisdictional vacuum. The confusion of the UK’s standing with EU member states would be short-lived if it promptly passes entirely new legislation which could address reciprocity with the EU member states. Such legislation could redress less appealing aspects of the regulations, for example, the controversial ‘petition race’ created by Brussels II bis and the difficulties arising from the differing jurisdictional criteria for divorce and maintenance.

Since the publication of the draft bill, however, two further government papers have been published which echo the House of Lords subcommittee’s concerns regarding reciprocity and the need for clarity and continuity in legal matters reflecting people’s everyday lives (Providing a cross-border civil judicial co-operation framework – a future partnership paper dated 22 August 2017, and Enforcement and dispute resolution – a future partnership paper dated 23 August 2017). The papers propose negotiating ongoing reciprocal arrangements with the EU based on the current regulations.

Where does this leave the UK?

The ramifications for families in cases where the court dismisses applications for relocation are likely to be extremely damaging if the result of the UK leaving the EU in 2019 effectively overturns the courts’ decisions because one or both parents are unable to legally remain in the UK. The government’s proposal to EU citizens within the UK shows a desire to avoid such instability. Until there is a definitive decision, the court will need to determine in each child’s individual circumstances how the risk of one or both parents being obliged to leave the UK should be balanced as a factor in how best their child’s welfare needs can be met.

The Hague Convention will greatly assist the UK in terms of legislation and reciprocal arrangements relating to children but the reciprocity which goes over and above the convention within EU law will need addressing to ensure welfare is given the highest priority.

The withdrawal bill as drafted prevents there being a vacuum in respect of divorce or maintenance jurisdiction by importing the EU regulations in force immediately prior to exit date into domestic legislation. However, without a guarantee the EU member states will amend both Brussels II bis (or Brussels II bis recast) and the maintenance regulation to refer to contracting member states plus the UK, and additionally give the UK standing in relation to the debating of subsequent changes to that legislation, the uniformity and certainty of the EU rules on jurisdiction will be lost to the UK. That member states would agree to such conditions may not be fanciful based on the need for clarity and continuity for EU citizens as well as UK citizens, but the appetite to accommodate the UK as an exception to the rules is not something to rely on. Agreeing exactly the same law with the EU on the same reciprocal terms would provide certainty, however contrary it is to the spirit of the vote to leave.

This article first appeared in Family Law Journal.

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