In or out? Family law implications of the EU referendum

Family analysis: David Williams QC, barrister and mediator at 4 Paper Buildings, looks at the possible impact of the EU referendum on family lawyers and their clients.

What are your key concerns about a future EU referendum?

As Jacques Delors once said:

‘Europe is not just about material results, it is about spirit. Europe is a state of mind.’

Brexit would mean a withdrawal not just from the relevant EU instruments in the family law field, with adverse consequences for the handling of cross-border cases, but also (whether in whole or in part) from the impact on the spirit of comity and co-operation between judges, central authorities, welfare agencies and lawyers—which has led to such improvements in the ways in which we deal with cross-border cases. Undoubtedly, the diminution in that aspect would have a detrimental impact on the welfare of children and families. On a broader level, I am worried about the knock-on effect of Brexit. If one of the largest EU Member States were to leave, what message would it send to the other Member States and to candidate countries? That a country should always pursue what it perceives as its self-interest over the interests of the region? What knock-on effect would it have on our membership of the Council of Europe and our adoption of the European Convention on Human Rights? The EU grew out of the European Economic Community (EEC), the European Coal and Steel Community and European Atomic Energy Community, which were all formed in the aftermath of World War II and designed to aid integration and security in Europe. Any reversal brings with it unpredictable consequences which may have far wider ramifications somewhere down the line. The League of Nations failed in the 1930s because big players did not support it. I do not think we should be complacent about our European integration—history tells us that we have to work hard to maintain stability and Brexit would be a huge blow to stability and co-operation in Europe.

What would a vote to leave the EU mean in practice for family law lawyers?

EC Regulation 2201/2203 (Brussels II bis) now permeates the whole of family law. Article 8 is the cornerstone of jurisdiction over children. Article 3 is the cornerstone of jurisdiction on divorce. Brussels II bis issues now regularly feature in care proceedings , for example, as to the transfer of proceedings under art 15, or placements overseas using arts 21 and 28 or art 56. Exercising access rights has been made significantly simpler with the Annex III certificate under art 41, and protection against child abduction within the EU has been significantly strengthened by art 11. The European Judicial Network and the Central Authority obligations under art 55 support effective co-operation in cross-border cases. Therefore, all this would be removed and we would have to re-focus on the 1996 Hague Child Protection Convention and the 1980 Luxembourg Convention. Statutes such as the Family Law Act 1986 would have to be amended, along with all the other related statutory instruments. We would then embark on working out how the then structure would work. Of course the 1996 Hague Convention does have much in it that is similar to Brussels II bis—it is the mother of Brussels II bis, after all—but they are not identical and there are significant additions to Brussels II bis which are simply not present in the 1996 Hague Convention.

On the financial side, the EU Maintenance Regulation (Council Regulation (EC) No 4/2009) would go, and reliance would have to focus on the Hague Maintenance Convention 2007.

On the protection of individuals and children from domestic abuse, the Regulation on mutual recognition of protection measures in civil matters (Regulation (EU) No 606/2013) and the Directive on the European Protection Order (Directive 2011/99/EU)  ensure that all victims of violence have the possibility to get their protection orders recognised in any EU Member State. These would no longer be available.

The proposals on relation to succession, surrogacy, mutual recognition of legal documents and the host of other measures which make intra-EU cases so much easier to deal with than others would fall away.

For lawyers, no doubt, it will mean extra work, but I do not see that as a good thing in this context.

What would a vote to leave the EU mean for clients in your field?

Cross-border co-operation in family matters did not start with the EU so there are many other structures in place which could still be relied on or which would come to prominence. Brussels II bis takes precedence over the 1996 Hague Convention and so if Brussels II bis fell away, the 1996 Hague Convention would step up. Therefore, Brexit would not leave a vacuum. However, in reality it would almost certainly mean:

  • less certainty
  • more delay
  • greater expense
  • less robust child abduction protection, and
  • families suffering greater separation and distress

This would not be the case if we remain a part of the EU family law structure, able to continue to reap the current and proposed future benefits that membership of the framework brings.

The views of our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

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