On the 20th March 2017, the European Union Committee of the House of Lords published its 17th Report of Session 2016-17 ''Brexit: justice for families, individuals and businesses?''.
Its subject is the three highly specialist and technical Regulations which, together ‘play an important role in facilitating the daily operation of the European legal system, while protecting the rights of EU citizens and the ability of businesses to engage with the Single Market’. Those three Regulations are as follows:-
- Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). The so-called Brussels I Regulation recast (BIR).
- Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. The so-called Brussels IIa Regulation (BIIa).
- Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance. The so-called Maintenance Regulation (MR).
In broad terms, the difference between the first Regulation, and the other two is that the former relates to civil and commercial matters, whereas the latter both concern matrimonial and family matters. There also appears to be a distinction as to the level of protection for U.K. citizens if all that happens between the triggering of Article 50, and the date of the UK's departure some two years thereafter, is the implementation of the Great Repeal Bill, with individuals and families coming off rather worse.
BIIa and the MR have combined well over the last eight years to afford a degree of certainty and order as to the member state in which divorce proceedings are begun where there is a choice of more than one. In short, whoever gets to the court first, wins the race. Whilst that can have the effect of encouraging a husband or wife to file the divorce papers before they may be entirely sure that a divorce is what he or she wants, it has put an end to expensive, and often long drawn out parallel litigation in two member states. For many, the greater advantage, however, is that the Regulations aid the enforcement of judgments in member states, with greater reciprocity and the ability to give effect to a judgment obtained outside the state where an individual may be a citizen or resident.
The Committee had the benefit of oral and written evidence from leading academics and lawyers including a former member of the Court of Appeal and the current President of the Law Society of England and Wales. What emerges is that whereas it was said in relation to the loss of BIR post-Brexit that “there is no means by which the reciprocal rules that are central to the functioning of the BIR can be replicated in the Great Repeal Bill, or any other national legislation”, the UK’s membership of the Lugano Convention and implementation of the Rome I and II Regulations through the Great Repeal Bill and ratification of the Hague Convention on choice-of-court amendments appears to offer at least a workable solution.
Not so, however, in relation to the loss of the BIIa and the MR, as save for the provisions of the Lugano Convention on cases involving maintenance, there appears to be no satisfactory fall-back position in respect of family law. All the witnesses who gave evidence were unanimous that a return to the common law rules and the old forum conveniens process would be particularly detrimental for those engaged in family law litigation given, for one thing, the family courts’ already dangerously over-stretched capacity. The report itself reads (at paragraph 92) “we have significant concerns over the impact of the loss of the Brussels IIa and maintenance Regulations post-Brexit, if no alternative arrangements are put in place. We are particularly concerned by David Williams QC’s evidence on the loss of the provisions dealing with international child abduction”. And at paragraph 93 “to walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm”.
We have, in effect, somewhat less than two years to underpin the benefits of BIIa and the MR into our family law system. Less than two years as no doubt negotiations will start very much sooner and the Government needs to produce legislation for debate well ahead of March 28 2019. Many EU family lawyers are feeling less than sympathetic to the UK as we sever ourselves from the benefits of BIIa and the MR.
Broaching the subject at the recent International Academy of Family Lawyers (IAFL) European Chapter meeting in Lisbon this past weekend, it was met with some hostility and little, if anything, in the way of reciprocity in terms of precisely how we will enforce judgments and guarantee even some predictability about the divorce process. Even so, the report itself refers to “3 million citizens of other Member States living in the UK and 1.23 million citizens living in other Member States”. So, some reciprocity must be inevitable in terms of protecting the 3 million, if the UK agrees that their current status should remain unchanged.
How Parliament can be expected to funnel through all the legislation, across all aspects of our society, in a considerably shorter period than the two year period post 29 March 2017 is extremely difficult to see. However, we have our chance to influence and persuade our current EU counterparts and our Government as to the benefits that BIIa and the MR have afforded UK citizens and international families living here, and the framing and structure of their replacements must remain our clear and overriding objective.
A shorter version of this blog was also published in Solicitors Journal on 30 March 2017.