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Family analysis: A referendum on whether the UK should remain a member of the EU is scheduled to take place by the end of 2017. In the first of a two-part analysis, David Hodson OBE, partner and co-founder of The International Family Law Group LLP, highlights the current impact of EU law on family lawyers and their clients.
How could your practice area be affected by the EU referendum?
The primary effect of a referendum decision which caused the UK to leave the EU would be that EU legislation would no longer be automatically part of our law. Since March 2001, there have been several major pieces of EU family law legislation which have been directly applied in England and the UK, without going through the UK Parliament and therefore crucially have not been debated through the UK political or consultative process. In as far as they have been from a continental European civil law perspective, they have at times, and in parts, been contrary to domestic family law approach and practice. A good part of our work is now determined not by domestic law but by EU legislation and Court of Justice of the European Union (CJEU) case law. Their absence and our departure from the EU would be dramatic. The issue for debate is whether it would be overall beneficial.
It has also to be said that there have been a number of other pieces of EU legislation relating to broader practice issues such as service, taking of evidence, legal aid and similar which have been helpful. But these are outweighed by the particular difficulties created from some areas of EU legislation, EU policy and EU case law.
What issues currently arise in your practice area in relation to the UK's relationship with Europe?
There are certain primary themes.
Jurisdiction—first to 'issue'
First, with freedom of movement around Europe, and therefore inevitably many international families, there were bound to be many more forum disputes as to which country should deal with divorce and family law matters. The EU in the 1990s had to find a sensible way to resolve these disputes. It wanted to overcome the common law element of wide discretion in forum disputes, ie ascertaining which country has the closest connection with a family and therefore most appropriate to deal with the dispute, initially in the context of the issuing of divorce proceedings.
In March 2001, the EU introduced legislation known as Brussels II (now Regulation (EC) 2201/2003) and the concept of lis pendens, ie first to issue. Not only was this not a feature in domestic family law, but issuing first on a tactical basis was specifically condemned by many judges who favoured the approach in England and Wales of endeavouring to resolve matters before the issue of proceedings. Suddenly all that mattered was who issued first and thereby seised jurisdiction, however weak may be the connection, and however strong the connection with another country. Brussels II compounded the problem by providing a wide list of jurisdictional divorce criteria which inevitably meant that for international families, more than one EU country would often have possible jurisdiction.
Ancillary to the divorce are the financial aspects. England and Wales is regarded as probably one of the most generous in Europe. This divorce and money mix has inevitably led to the so-called rush to court where one party issues fast and first to get proceedings established in England and therefore obtain the most beneficial financial outcome. Family lawyers doing international work have had to become very alert and quick to obtain instructions and issue first. It has been thoroughly unattractive and completely against the spirit of family law work for a number of reasons:
It has been the most appalling anti-family law, anti-settlement anti-family life piece of legislation. The EU policy-makers initially refused to accept there was a problem with rush to court provisions and even now only reluctantly do so, unofficially blaming family lawyers in England and Wales for the problem. This provision has been dreadful which we would significantly benefit from losing if we left the EU.
It must however be recorded that the same law, Brussels II, very commendably introduced identical divorce jurisdiction across the entire EU which is very beneficial
Choice of law
The second difficulty has been that England and Wales, like other common law jurisdictions, apply their own local law: English and Welsh family law operated by English and Welsh family lawyers before English and Welsh judges in English and Welsh courts. But across much of continental Europe this is not the norm. They apply the law of the country with which they believe the couple have the closest connection, even if that is the law of another country. This is known variously as 'choice of law' or 'applicable law'. The EU has had a policy over the past decade and more of trying to impose applicable law on all EU countries, specifically gunning for the UK which has been the most vigorous opponent and the largest 'local law' jurisdiction. Very good pieces of EU legislation have been significantly delayed by arguments over this issue and time and time again draft legislation has tried to introduce it. Senior English judges, a few senior constitutional politicians and many family law practitioners have opposed it. So far we have been successful. But the EU continues its policy and is not known for giving way. This will be an ongoing battlefield. It's such a pity.
A third difficulty has been the ambition of the EU to apply its laws not just between Member States but in all dealings of Member States with non-EU Member States and indeed in entirely national cases which have no international element. This has found itself in two elements.
First, as part of so-called universal application, the EU intends its laws should apply not just in cross-border EU cases but in all cases, both national and with non-EU countries. It has introduced laws which limit the powers of the courts in England and Wales to make certain sorts of financial orders in cross-border cases with any non-EU country involvement, specifically a needs-based financial order cannot be granted where the only connection is sole domicile. This was never consulted as preferred family law policy. There have been many victims of this EU law who would have been thoroughly deserving of appropriate needs-based remedies. It was not needed and should not have been introduced. Many feel the UK government should have stood firm and opposed this, including engaging in wide consultation across the profession. Most of us only knew about it nine months or so after it was introduced! It is EU intervention going too far. It creates an uneven playing field between us and many non-EU countries, acting as a detriment to many English-based clients
The second element is even more severe. As a matter of policy the EU has declared that it will not allow any Member State to enter into bilateral or multilateral treaties or conventions with non-EU countries on a topic covered by existing EU legislation (which is now almost all areas of family law) unless the EU gives permission and, in effect, joins en masse. It is so-called exclusive competency. This has had an adverse impact in the realm of child abduction where the UK has been unable to sign up to the 1980 Hague Convention signatory countries without EU permission. Even though a child may have been abducted to a newly signatory country, we have to treat them as if they were not a signatory and use much more cumbersome and less effective processes. Dispute over this EU policy was referred to the CJEU (Opinion 1/2013). Although the policy was opposed by many EU Member States, it was perhaps unsurprisingly upheld as legitimate and warranted.
This EU concept of exclusive competency and universal application of laws and policies in the family law context is not well known either to the public and media or to the general profession. Many of us who support European cooperation in principle are opposed to these very overarching legal and political claims, diminishing our opportunity in the UK to carry on appropriate family law relationships with non-EU countries. The UK has many close historical ties around the world which are now being hampered and cut loose by the EU in its global political ambitions.
Systems and practice
A fourth area of concern which goes to the very heart of the EU intentions is the very different justice systems and cultures of legal practice around Europe. It is an explicit aim of the EU to create a common judicial system around Europe. It is good and laudable, but the EU has proceeded to impose a number of law and procedural requirements without making sure that the various justice systems can perform and comply with those requirements. The simple fact is that some justice systems within the EU are very slow, cumbersome, exceptionally technical and procedural with shortcomings. These may work okay within the national context and the national culture. They cease to work and instead can cause real havoc and injustice when the dispute concerning a family also involves more efficient, fast and effective justice systems. So it can take six months or more for some countries to process family court papers and arrange service abroad yet in that time parties are left without remedies and, in effect, nothing happens during a period of intense and emotional relationship breakdown. One party and children can be left in real need while administrative wheels turn slowly or not at all. It can take several years for discrete family law disputes to be heard before the courts of some countries yet no other steps can be taken in any other country until the original proceedings are concluded. Some jurisdictions have ineffectual disclosure obligations so it is easy to hide assets and subvert the process of resolving financial claims.
The EU is aware of these problems and has rightly and publicly condemned delays in some Member States' court systems, but it does nothing. Similarly the level of knowledge of EU family law among the legal professions in some Member States is low, in stark contrast to countries such as England and Wales where we are often aware of the issues and are quick and effective to act. So some parties do well and some do badly because of the lack of professional knowledge in some countries. I consider that the EU should do nothing more in introducing new laws until they have worked collaboratively to produce better justice systems and better family law awareness of lawyers, but the EU ignores this and rushes onwards.
I appreciate entirely that as my practice at The International Family Law Group LLP involves a significant amount of work with an international element we come face to face with these problems very frequently. There is much which is good about the attempt to harmonise certain processes between European countries. But the EU has adopted an unnecessary approach and, it has felt at times, been seemingly unwilling to listen to practitioners and refused to acknowledge there may be anything wrong in the way the EU family law has developed in the past 15 years. This is a huge pity for those of us who have always supported in principle closer European co-working.
Part two of this News Analysis can be accessed here.
David Hodson is a highly experienced family law dispute resolution specialist, with particular experience in cases involving an international element or complex assets or issues. He is a solicitor, mediator, arbitrator, deputy district judge at the Central Family Court, and joint founder and a partner at The International Family Law Group LLP.
Interviewed by Kate Beaumont.
The views expressed by 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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