Post-Brexit frameworks—what are the options?

Family analysis: The UK government policy papers outlining the legal mechanisms for engaging with the EU after Brexit have come in for protracted criticism. With reciprocity a key element of settling disputes in family law, Eleri Jones, barrister at 1 Garden Court, explains the options.

Original news

Brexit: UK wants ‘close and comprehensive’ judicial cooperation with EU LNB News 22/08/2017 92

The government has published a new policy paper which considers a cross-border civil judicial cooperation framework with the EU post-Brexit. The government says it is vital that both parties agree to ‘coherent’ common rules that govern interactions between legal systems. It says that while the UK will sit outside the direct jurisdiction of the Court of Justice, the UK will seek to agree ‘close and comprehensive’ arrangements for civil judicial cooperation.

What are the key issues dealt with in the policy papers from a family law perspective?

The first of the two recent policy papers from the government is entitled Providing a cross-border civil judicial cooperation framework: a future partnership paper, and addresses in general terms the concepts of jurisdiction, applicable law, recognition and enforcement post-Brexit. The paper considers all aspects of civil law, but includes reference to the main EU Regulations that family lawyers currently use on a daily basis, namely Regulation (EC) 2201/2003 (Brussels II bis), and the EU Maintenance Regulation (EC) 4/2009, although we currently benefit from other EU Regulations too (such as the Protection Measures Regulation (EU) No 606/2013 and the European Enforcement Order Regulation (EC) 805/2004).

The policy paper is mainly a statement of intention, setting out the government’s aims and aspirations for the new agreement that it wishes to negotiate with the EU when the UK leaves the EU. The paper appropriately recognises the importance of having ‘mutually beneficial rules and processes to facilitate and enable cross-border trade, commerce and family life’, an approach which is of course welcome.

The government recognises in its paper the ever-increasing number of international families and states that ‘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 says that ‘the best way to ensure legal certainty for both UK and EU citizens and businesses as we leave the EU is to facilitate a smooth transition to a new relationship in civil judicial cooperation’.

The government states that ‘the UK will therefore seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework’. It appears therefore that the government wishes to maintain the status quo in relation to jurisdiction, recognition and enforcement. However, what the paper does not do is provide any detail about how that is going to happen, nor does it address the political considerations of achieving this.

The paper also includes an ‘Annex A’ which sets out the government’s view as to what should happen if an agreement cannot be reached in time before ‘Brexit’, responding to the EU position paper on this topic (published 13 July 2017). The government proposes (without prejudice to future negotiations) that existing EU rules about jurisdiction and recognition and enforcement will continue to apply to decisions given before Brexit and to decisions given after Brexit within proceedings instituted before Brexit. This is again welcome news but remains subject to any agreement reached.

In its second policy paper, published the next day and entitled Enforcement and dispute resolution: a future partnership paper, the government looks at the alternatives to the Court of Justice as an overreaching arbiter of disputes, or a more limited role for the Court of Justice, in future UK/EU disputes. There is no proposal as to what should happen, merely a list of options. In that paper, the government states that ‘the UK has also made clear that in order to avoid any cliff-edge as we move from our current relationship to our future partnership, people and businesses in both the UK and the EU would benefit from an interim period, where this is necessary for the smooth and orderly implementation of new arrangements.’

The question is, what will that interim period look like? That is the key consideration at this time.

What are the implications for family lawyers and their clients? How should family lawyers advise their clients in the interim?

The main consideration will be what happens in disputes that start on the day that the UK leaves the EU. There are essentially four options:

  • keep the current system in place—write the EU family law provisions into UK domestic law, maintaining the existing reciprocal arrangements between the UK and EU, with the UK staying subject to the Court of Justice
  • replicate the EU family law provisions in domestic law but without the existing reciprocal arrangements between the UK and EU, removing the UK from the jurisdiction of the Court of Justice
  • make our own bespoke arrangements with the EU setting out a new framework for family law cooperation between the UK and the EU (with the mechanism for resolving disputes to be determined)
  • have no arrangement in place on ‘departure day’ and (without writing the EU family law provisions into UK domestic law), simply rely on existing international conventions eg the Hague Convention

The current effect of the EU (Withdrawal) Bill is the third option above. It would also likely be the worst of all options; the UK ending up in a ‘one way street’ scenario, with the UK having enshrined into domestic law the EU family law provisions and requiring our courts to apply those rules about jurisdiction, recognition and enforcement, but with no obligation on the other EU Member States to do so in relation to our proceedings and decision. This would spell disaster for our clients and make it very difficult for lawyers to advise them.

There will be, contrary to the government’s explicit aim, a ‘cliff-edge’ situation and we will have to contend with:

  • uncertainty as to whether other EU Member States will allow proceedings to continue here if our courts are first seised
  • concern about the enforceability of our orders
  • delay while it is all considered
  • increased burden on our already stretched court service, and
  • additional cost due to all of the above uncertainty

The government’s current aim seems to be to achieve the third option in the long term, achieving as close to what we have now as possible. However there simply will not be sufficient time to consider, negotiate and put into place all that will need to be done to achieve this by March 2019, if it is even possible at all. That is why the interim situation requires consideration and clarification.

The government’s paper recognises that the existing international conventions (eg the Hague Conventions) would not provide the more sophisticated and effective interaction that we currently have under the EU Regulations. It is right to say that our clients will be disadvantaged if we lose the additional benefits that the provisions of Brussels II bis and the EU Maintenance Regulation bring. While the EU family law provisions may not be perfect, they are tried and tested and the enhanced cooperation provisions bring about speedier outcomes for our clients in intra-EU cross-border disputes, particularly for matters of automatic enforcement of contact orders and in child abduction disputes. The recast Brussels II bis will bring yet further improvements.

The first option above is clearly the best outcome for our clients. Some would say it is the best long-term option, others have different ideas, but it is clearly the optimal solution in the interim.

The government’s stated ‘optimum outcome’ would be an agreement whereby ‘litigating a cross-border case involving UK and EU parties under civil law, wherever it might take place, will be easier, cheaper and more efficient for all involved’. It is hard to see how the current proposed interim solution under the EU (Withdrawal) Bill will achieve this given the consequences noted above.

What must be avoided at all costs is a ‘legal limbo’ for our clients and their families. It is vital to ensure that both in the interim and the long term, there are clear and effective rules about jurisdiction to avoid parallel proceedings, and particularly rules on recognition and enforcement of orders. Reciprocity is the key to achieving this, and the current position does not grapple properly with the feasibility of retaining true reciprocity so as to maintain the benefits of a mutual system of jurisdiction, recognition and enforcement.

For now it is very difficult to advise our clients to do anything other than ‘wait and see’. The current system will operate until we leave the EU and it is likely that for cases decided by that time, or being decided at that time, that system will remain applicable. It is what happens thereafter that is currently very uncertain.

Which areas are of most concern?

There is concern across the board for family law given the need to retain reciprocity; without it, many of the EU family law provisions the government states it will retain will be pointless. We will lose the many benefits of the reciprocal system and keep the problematic aspects.

The government’s current insistence on the end of the direct jurisdiction of the Court of Justice is a key issue. An option set out in the government’s second position paper about enforcement and dispute resolution is to ‘have regard’ to Court of Justice decisions in future, but that will still give rise to the possibility of divergent decisions and incompatible approaches. That will only serve to undermine and confuse the application of these rules as between the UK and EU. The government needs to understand that in family law, EU Regulations do not provide us with our substantive law—they are private international law rules about procedure. The UK has never accepted applicable law rules from the EU in family law (though it has in other fields). The countries of the EU have always been in control over their own substantive family law and we apply only our own law in family law cases. A proper understanding of this may ameliorate political sensitivities about an ongoing role for the Court of Justice, even if limited to certain areas like family law.

The best option would be to leave the current system in place, with the Court of Justice remaining as it is, until longer term decisions are made. In so doing, we can keep in sync with developments in EU law (such as the forthcoming recast version of Brussels II bis) so as to avoid new rules applying in the EU and old EU rules applying at home. If we stay subject to the Court of Justice decision making regime then we may also be able to continue making representations as part of that decision-making process, and also keep a judge on the panel from which judges are selected, as we do now. It is likely to be crucial for maintaining reciprocity with the other EU Member States that we stay signed up to the jurisdiction of the CJEU—otherwise there is no obvious incentive for the other EU Member States to retain a reciprocal system with the UK.

Ultimately, the government’s papers do not take us where we need to go—it is hoped the government will continue to look at this issue carefully and perhaps reconsider its view on the Court of Justice; there is no reason that one solution must fit all areas of law given that different considerations apply to each area. We want to ensure the best for our citizens both at home and abroad when dealing with family disputes, to give them the best options at some of the most difficult times in their lives and do our best to avoid the uncertainty, delay and additional cost that will come about as a result of the current proposed approach of the government.

Interviewed by Julian Sayarer.

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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