Resolution Brexit Briefing23-Oct-2017

As active members of Resolution we would like to share with you the latest Resolution Brexit Briefing.
If you require any advice or support in any area of Family Law, please call 01244 356 789 to speak with one of our expert family lawyers.

Welcome to the latest edition of our Brexit briefings, where we look at the impact on family law as a result of the UK’s withdrawal from the EU.

We’ve been clear from the start that Resolution feels that, whatever the drawbacks of the current system, it provides certainty and importantly reciprocity. We’ve taken a proactive stance on Brexit thus far by giving evidence to the Justice Select Committee and have been pleased to see them take our points on board.

Bearing in mind the far-reaching consequences of Brexit, family law is not likely to be a main priority. However, the Ministry of Justice has made it clear that they would welcome input from well-represented and expert organisations working in the sector. That is why Resolution, alongside the Family Law Bar Association (FLBA), International Academy of Family Lawyers (IAFL) and representatives of other organisations have formed a small informal group of lawyers and other family law professionals in order to make appropriate recommendations.

We have published a paper, Brexit and Family Law, which sets out the potential options available to the Government, alongside our recommendation to retain full reciprocity.

These have been sent to MPs and Peers working on the issue ahead of the EU Withdrawal Bill being sent to committee in the coming weeks. We continue to lobby in the best interests of our members, and encourage anyone who has good connections with their local MP to consider raising the issue as well.

About the paper
The paper, drafted by barrister Eleri Jones of Garden Court and commissioned by Resolution, FLBA and IAFL, examines how best to deal with the complex family law issues arising from leaving the EU.

Families needing to go to court must know that whatever court they end up in, in whatever country, the decision of that court will be respected by other courts. Our key recommendation to maintain an effective family justice system would be to replicate the EU instruments in our own domestic law whilst maintaining the reciprocal arrangement between the UK and the other EU member states. This system of reciprocal arrangements has evolved over decades, providing real benefits to families across the EU.

This would effectively maintain the current system retaining all its benefits, including harmonised rules across the EU for establishing jurisdiction to hear cases, to recognise and enforce each other’s orders and to cooperate across borders. In our view, this is the best option long term and the only workable option for families in any transition period.

The EU Withdrawal Bill will replicate EU family law provisions in our own domestic law. Replicating provisions without full reciprocity would leave our citizens in a position of significant vulnerability and confusion, and would lead to unfair outcomes. To secure a cooperative arrangement with the EU regarding family law matters, we believe that the EU Withdrawal Bill should be amended to allow for the Court of Justice of the European Union (CJEU) to have an ongoing role in family law. EU instruments which affect UK family law deal primarily with procedural rather than substantive family law - sovereignty is not the issue here - but they require full reciprocity to work.

The risk to families
Without reciprocity there is a risk of a ‘one way street’ – the UK would continue to apply EU family law and be obliged unilaterally to recognise and enforce decisions of other EU member states – whereas EU member states would not be obliged to recognise and enforce our decisions. There would also be significant risks of parallel proceedings in the UK and other EU member states.

To avoid families and children falling off a cliff edge, we consider that the UK should certainly continue to be bound by decisions of the CJEU in family law in any transition period and before any bespoke treaty is negotiated. Otherwise, families who must embark on family proceedings after we leave the EU will have no certainty and be left in limbo.

Click here to download and read the paper

Daniel Eames
Chair, International Committee 
Copyright © 2017 Resolution

This is not legal advice; it is intended to provide information of general interest about current legal issues.