Posted: 02/10/2018
Between Wednesday 26 and Sunday 30 September 2018, Stuttgart, Germany, played host to the 29th International Academy of Family Lawyers (IAFL) annual European Chapter meeting.
The meeting, which takes place in a different European country every year, is an opportunity for the worldwide association of practising family lawyers, who are recognised by their peers as being the most experienced and skilled family law specialists in their respective countries, to come together to experience a carefully considered three day education programme. This year it was chaired by James Stewart of Penningtons Manches LLP and Dr Kerstin Niethammer of Juergens Rechtsanwaelte, Berlin. Over 250 IAFL Fellows from around the globe attended the Stuttgart meeting.
The importance of this annual meeting and its education programme is more relevant than ever given the background of the ongoing (or not…) Brexit negotiations. Family law is not at the top of the Government’s agenda and yet, its implications for British citizens and the millions of people who live in Britain but who have relevant connections to a European country is far and wide-reaching – much further than the family lawyers who are watching carefully to see how best to guide and advise clients through what can already be a complex and testing time.
The Government’s guidance on dealing with justice matters in the event of the UK leaving the EU with a “no deal” suggests that EU laws would be repealed where Hague conventions apply. This is of particular relevance to the question of which country has jurisdiction to deal with the divorce and finances leaving significant areas of jurisdictional conflicts between post Brexit UK and EU jurisdictions.
At present, countries within the European Union operate on the policy of the ‘lis pendens’ rule, ie the first petition in time will secure jurisdiction. This is different to countries outside the European Union where, if a family has connections to another country, the court in England may be required to determine which country is the most relevant to determine the matter (the ‘forum conveniens’ rule). Right from the outset, the potential changes to these rules will affect all aspects of English family law and will have an impact upon both the technical and practical aspects of resolving family disputes.
Anna Worwood, partner, at Penningtons Manches LLP, and an expert in international children law, also attended the conference and represented England on a panel session dealing with the international relocation of children (commonly referred to in English family law as ‘leave to remove’ applications). The international audience at the conference unanimously noted the increasing difficulties that a parent wishing to move to a different location from their child or children’s habitual residence faces. The panel observed that success (particularly in England, but also within the European Union itself) is more likely if the country to which the parent is looking to relocate is within the European Union or is a signatory to the 1996 Hague Convention on parental responsibility and protection of children. The reason being that the judiciary (presumably) feels much more reassured about the enforceability of an order within these countries. As a number of parents living in England begin to question whether this country remains the right place to raise their family, or may be forced to relocate given a change in their employment and or immigration status, many parents may begin to explore a permanent return to their home country with the children following a separation or divorce. Against this background, the question as to whether leave to remove applications will become even more difficult for parents in a post-Brexit world remains to be seen.
Says Anna: “It was an honour to be presenting in Stuttgart with leading lawyers in the field of relocation law. Relocation cases are always difficult for all involved. We, as practitioners, have experienced significant changes in the law and the courts’ approach to relocation cases over the last few years. In the UK at least, we are likely to see further changes with the impact of Brexit and face much uncertainty about matters such as the enforceability of orders post relocation.”
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