The Government’s ‘Providing a cross-border civil judicial cooperation framework – a future partnership’ paper – The UK’s departure from the EU and the impact on Family Law in the UK

24 / 08 / 2017

The government has recently published its “Providing a cross-border civil judicial cooperation framework – a future partnership” paper.

The focus is on the UK leaving the EU and it sets out, in part, what it hopes to achieve.

The report states that:

  • “As the United Kingdom leaves the European Union, the Government will seek a deep and special partnership with the EU. Within this partnership, cross-border commerce, trade and family relationships will continue. Building on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems.
  • To this end, the UK as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation within the EU.
  • We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now…”.
    The Government has confirmed that, of course, when we withdraw from the EU we will no longer be part of the current judicial cooperation system between EU Member States. As part of this, the UK currently participates in several scheme rules, such as those covering child and other family maintenance (which determine which country’s Court has jurisdiction to deal with the matter, as well as recognition of maintenance decisions and enforcement). It also covers the same in relation to matrimonial and parental responsibility matters. Other rules which the UK (as a current an EU Member State) is signed up to, cover those such as serving documents in other EU countries and the granting of legal aid in disputes involving more than one EU country, amongst others.

This has always been important and it has, arguably, become more so overtime as we are becoming a more global society. As the Government itself sets out in its report, “the world is more interconnected than ever and families increasingly come from or reside in more than one country – there are approximately one million British citizens living in EU Member States and some three million EU citizens living in the UK. When things go wrong, families need to know that they will be able to resolve disputes in a clear, predictable way, without undue delay”.

The Government has confirmed that it is committed to “increasing international civil judicial cooperation with third parties…we are clear on the value of international and intergovernmental cooperation in this area“. It has confirmed, for example, that the UK is a member of the Hague Convention which is a Treaty that (in part) governs the return of children who have been abducted to another contracting State (the idea being to help ensure the prompt return of the relevant child) and says that it intends on remaining so (it will apply for individual membership).

There are however other provisions in relation to child abduction to which the UK is currently signed up to as an EU Member State. The additional provisions of co-operation between EU Member States can help a child to be returned even more promptly (than under the Hague Convention). Given that the UK are a party to the additional provisions by “virtue of our membership of the EU” it is not guaranteed that we will be able to remain a party to the additional provisions or similar – although it is said that we hope to be able to put similar provisions in place. If we are unable to do so, this is likely to mean that it would be more difficult for UK parents to seek the return of an abducted child as swiftly from an EU country, and they would instead be relying on the slower, more uncertain and arguably less effective Treaties, such as the Hague Convention.

Similarly, as referred to above, by virtue of the UK currently being an EU Member State, it is a party to the recovery for child maintenance and other family maintenance provisions, which allows for recognition of maintenance decisions amongst contracting countries, and enforcement of the same. EU Member Countries also have additional provisions whereby they exchange information to help to facilitate payment of maintenance. Again, there is no guarantee as to what “deal” (if any) may be done with the remaining EU Member States in this respect which could have a huge impact on the way in which family and child maintenance decisions can be enforced across countries, with the involvement of the UK and an EU Member State.

The Government’s report confirmed that, as mentioned above, when leaving the EU, the EU Treaties will no longer apply in the UK. It goes onto confirm that “Leaving the EU will therefore bring an end to the direct jurisdiction of the [Court of Justice of the European Union] because the [Court of Justice of the European Union] derives its jurisdiction from the EU Treaties“. It does however go onto say that, as mentioned above, the Government hopes to put new arrangements in place, the framework of which, it is said “would be on a reciprocal basis, which would closely mirror the current EU system and would provide a clear legal basis to support cross-border activities, after the UK’s withdrawal” from the EU.

Unfortunately, however, it is not really explained in the Government’s paper how they intend this to work in practice – which is going to be important for all concerned. Time will tell what the actual, specific proposals are and the (hopeful) agreement is, which could make a huge amount of difference as to how Family Law operates in the UK where there are links in a case between the UK and an EU Member State (e.g. it is cross-border in nature) – whether that is, for example, with a husband and wife living in different countries and wanting to get divorced (there may be other difficulties if there is no longer the same co-operation in determining which country (the UK or a EU country) has jurisdiction to deal with a matter and consequently what Order should apply/be enforced (if applicable)); or child maintenance being pursued from someone residing in another country (as there will not be the same additional sharing of information) or a child abduction matter (as there will not be the additional provisions), for example. If a suitable agreement cannot be reached between the UK and the EU it is likely to lead to far more uncertainty and time delays for individuals than is the case now, which the EU will be aware of and that arguably puts the UK in a weak negotiating position when it comes to discussing and agreeing what reciprocal “framework” may be put in place. This is especially where, as I have already said, it is proposed that the Court of Justice of the European Union will have no direct jurisdiction over the UK Courts. I do not anticipate that latter aspect is going to be particularly appealing to the remaining EU Member States.

Further, of course, as a separate but related matter, we also wait to see what impact Brexit may have on the UK economy in due course, which in turn could impact on family finances and what each party may, for example, receive upon a divorce by way of a financial settlement. Indeed, money pressures – if Brexit adversely impacts the UK economy – may lead to an increase in the divorce rate in the UK as we find that money problems can often be one of the factors that lead to arguments and thereafter divorce.

The Government’s David Davis (who is the Secretary of State for Exiting the European Union) is encouraging early discussions as to how the departure of the UK from the EU could work in practice and what arrangements/cooperation framework should be put in place and I anticipate that starting the discussions sooner rather than later can only be a good thing.