Ever since the announcement of the Brexit vote, and the triggering of Article 50 on 28 March 2017, lawyers and politicians have been debating what the impact will be for those areas of UK law currently created by and enmeshed in EU treaties, regulations and directives. The implications for businesses and the economy have dominated both political and press coverage. Family lawyers were therefore hopeful that the publication of the Government paper on cross-border judicial cooperation on 22 August 2017 would provide some clarification.
The paper's stated aim is for continued cooperation following Brexit between the UK and the remaining 27 EU member states.
Whilst the aim is laudable, and surely one with which everyone can agree, the fact is that, without alternative legal arrangements in place, the EU regulations will cease to be directly applicable and reciprocity under the EU legal framework of regulations will end once we are outside the club.
The paper fails to outline any proposed structure or a methodology for establishing new judicial guidelines to be applied post Brexit, simply providing a list of aims and ideal scenarios. The paper acknowledges that even though some areas of law will be covered by existing international conventions, there is no detail about the sophisticated inter-relationships necessary for effective cooperation between legal systems.
The areas of family law which are currently governed by the CJEU include:
These areas are predominantly governed by two key regulations: Brussels IIa and the Maintenance Regulation.
Individuals, families, and those advising them, need confidence about which country's courts will deal with any dispute and the laws that will apply. They also need to know that any orders made will be recognised (and are practicably enforceable) elsewhere. This is currently governed by the above regulations under the ultimate jurisdiction of the CJEU.
The paper states that after ‘exit day’ any new judgments from the CJEU will no longer bind our domestic courts. However, it is stated that decisions made before this date should continue to apply in those cases which have already been decided and the decision making power will remain with the CJEU for those cases where the proceedings commenced prior to the termination of the UK’s EU membership. Once we have exited, the precedent setting power of the CJEU will cease. The paper seeks to reassure readers that the ending of the CJEU jurisdiction will not weaken the rights of individuals or call into question the UK’s commitment to other international agreements and treaties.
However, it is unclear how the Government intends to deal with the practical issue of interaction between the judicial approaches of the EU and the UK. The paper states that the CJEU will no longer have direct jurisdiction over domestic law. The Government needs to provide a framework for how ‘mirroring’ of EU law in the domestic law will work in practice once we are out of the club. Copying relevant laws into domestic law will only go so far; the issue is not just about the importation of the law, but about guidance on how the law will operate once in place.
Another consideration is the EU’s response to our leaving the jurisdiction. We may import EU law into the domestic arena by mirroring it here, but without being bound by EU supremacy, the interpretation by our domestic courts of those legal rules and concepts may, overtime, lead to a divergence between the UK judicial approach and that of the CJEU.
If such a divergence occurs, would the remaining EU 27 recognise our domestic legislation as reciprocal if we are developing our own domestic jurisprudence on the interpretation of EU law? The alternative is for our domestic courts to interpret in line with CJEU decisions – but surely this is just CJEU jurisdiction by another route, and goes against what some purport to be one of the fundamental principles and reasons for Brexit.
Such considerations are far from academic. They will from Brexit 'day one' need to be workable so that international families (and their advisers) know where they can issue divorce proceedings, where and how they can get and enforce any financial orders, what the rules and mechanisms are for ensuring someone living abroad pays child maintenance or the best, most expedient way, to return an abducted child. The interactions with the CJEU for international family law are, and will continue to be, extensive.
The 2007 Hague Conference on Private International Law sought to unify the rule of private law internationally. It aims to create a set of rules that can be applied internationally, to all member states.
The conferences have produced various conventions that cover a range of family, civil and commercial matters. There are 82 states, as well as the EU, which are members of the Hague Conference and 68 states which participate in various conventions. The UK is not itself a participant in all the Hague Conventions as a separate state, but is a participant by virtue of EU Contracting Party status.
The application of other non-EU international rules and mechanisms will become increasingly important post-Brexit. The Hague Conventions provide important guidance for international family matters. These will need to be given due consideration prior to the exit date from the EU, to ensure that the UK maintains individuals’ rights and obligations under these areas of law.
The UK is itself party to some of the Hague Conventions relevant to family law as a separate state, including:
The UK’s interaction with these conventions will remain unchanged once we have left the EU. The UK is party to other Hague Conventions by virtue of being an EU member state. Examples of these are:
The paper confirms that the Government intends to continue its membership of the Hague Conference,and in fact to be a“leading member”. The Government intends to continue to participate in those Hague Conventions to which we are already a party, and those which we are currently party to by virtue of EU membership. What is of concern is that no mechanism for this to happen has been included in the paper.
In addition, the 2007 Lugano Convention requires consideration. The European Community signed a treaty on the jurisdiction and recognition of judgements across the members of the European Free Trade Area (EFTA). EFTA states include the EC, Denmark, Iceland, Norway, and Switzerland. The Government must consider whether we should seek to become a member of this convention and whether the UK will be accepted into the club by the member states.
Having the right domestic laws in place is only part of the issue: a reciprocal relationship will need to be established between the UK and the EU 27 to provide protection for individuals and families.
The paper recognises that both UK and EU citizens would benefit from an interim period, which allows for a “smooth and orderly move from our current relationship to our future partnership”. However, the paper does not bring us much closer to understanding what this reformed partnership will look like for international families. The concern is that there will be uncertainty, delay and increased costs for clients with an international element to their case. There may even be a lack of legal recourse for individuals and families seeking to resolve and enforce judicial decisions.
The EU Withdrawal Bill, which proposes the mass-scale importation of EU laws, had its second reading in Parliament in September 2017, and was approved by the majority of MPs. A cooperative future partnership between the EU and UK is not something that can be established overnight.
Resolution, a national organisation which represents family solicitors, provided its views on what is needed to maintain judicial cooperation between the UK and the EU post Brexit at the Justice Select Committee Enquiry in 2016. It is hoped that the Government will realise that families need legal certainty to limit the cost and length of proceedings in particular for the benefit of children. Resolution made clear that "...cross-border family law for intra EU-UK laws – whether divorce, children or financial – requires reciprocity".
The importance of judicial reciprocity should not be underestimated. In order to continue to be applicable and maintain the protection of international parties, the UK will need to ensure that the EU will reciprocate any commitment it makes in terms of cooperation. Failure to address this prior to the termination of our EU membership will be damaging for individuals, and their children. Resolution raised particular concerns in this regard in relation to abduction cases, as well as cases where jurisdiction may significantly impact the outcome of the case.
In August 2017 Lord Neuberger, then President of the UK Supreme Court, made headlines about the grey area between UK and EU law after Brexit. He sounded the alarm, saying: "If [the Government] doesn't express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best." He said that all judges "would hope and expect Parliament to spell out how the judges would approach that sort of issue after Brexit, and to spell it out in a statute".
The concern for the judiciary itself is ongoing. In her first address as president of the Supreme Court, Baroness Hale took the opportunity to echo and reinforce her predecessor’s words on the same issue. She stated that it is the responsibility of Parliament to give judges “as much clarity as possible” in setting out the UK’s relationship to the EU’s Court of Justice after Brexit.
Judges will need to be told in legislation what weight should be attached to judgments from the Luxembourg court after exit day. The Government needs to think carefully about the practical arrangements for ensuring legal certainty and reciprocal recognition and enforcement for international families post-Brexit. The wholesale importation of current EU laws is not enough.
This article was published in New Law Journal in October 2017.