The Policy paper "Providing a cross-border civil judicial cooperation framework - a future partnership paper" published by Dexeu on 22 August is a welcome indication that the Government understands some of the issues we, as international family lawyers, are concerned about for our clients.
The stated “new, deep and special partnership” with the EU is something Family lawyers are keeping a close eye on; we have expressed concern as to how divorce, maintenance and children disputes will work post-Brexit for international families with interests in the EU and the UK. We live in a world where people regularly relocate for work purposes and family reasons. We all know families comprising British nationals and EU citizens who now face an uncertain future from an economic, immigration and personal perspective. The uncertainty of how the law will support them is putting international families under pressure as they are making decisions about their residence and employment following the referendum.
An agreement as to how cross-border legal disputes will be resolved post-Brexit will not provide all the answers but is a stepping stone in the right direction. The Government has indicated that they are look to achieve “A close cooperative relationship between the legal systems of the UK and the EU” and “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”. In principle, fantastic, but the current framework will change over time and we will be left lagging behind.
That said, the government appears to be alert to the real issues which will impact families (figures suggest there are 1 million Brits in Europe and 3 million Europeans in the UK), which is a start. Before March 2019, we need to address the practical questions of how UK orders will be recognised and enforced in other European countries (and vice versa) and which court should deal with a case in the first place where there is a choice between the UK and another Member State. We need clear and practical guidance from the government to ensure the current and effective enforcement and recognition framework doesn’t disappear into a black hole with nothing to replace it. We don’t want to end up in a situation where cross-border divorces and questions over the relocation of children take years to resolve with families and children living in a state of uncertainty.