Last month, we attended the Brexit conference organised by the International Association of Family Lawyers (IAFL) and Resolution: “Does Brexit really mean Brexit for Family Law?”. We were hopeful that the expert panel of speakers would shed light on the unknown darkness of the international family law world post Brexit. As one of the speakers remarked, the English family lawyer has just about got to grips with the various European Regulations relevant to our practice (primarily Brussels II revised and the Maintenance Regulation) and we are now entering the unknown.
The conference was opened with a keynote speech from Lord Justice Moylan who encouraged family law professionals to have a key role in making Brexit work for the benefit of the families and children we represent.
One of the greatest challenges is the loss of the reciprocal nature of the current Regulations (i.e. Europe wide jurisdiction grounds, reciprocal enforcement, recognition of foreign orders etc.). One view is that we will need a new bi-lateral treaty to govern the UK’s relationship with the EU Member States, to address:
- Grounds of jurisdiction;
- Applicable law;
- Recognition and enforcement;
- Procedural elements including cross border liaison and co-operation; and
- Interpretation and application.
Another view is that the Hague Conventions, already in place and to which the UK is party, will fill some of the gaps and are already facilitating international family law practice. Philippe Lortie (from the Hague Conference) argued that the advantage of his organisation was continuity, unlike the EU which changes administration every few years. He encouraged us to consider relying on the Hague framework for effective justice instead of rewriting everything.
In a very practical presentation from the point of view of a French lawyer, Isabelle Rein-Lescastereyres (BWG Associes) explained that without the Brussels IIa Regulation, there will be a risk of having a race to judgment as well as a race to court, which outcome is undesirable for many reasons, particularly the costs implications for clients.
Eleri Jones (1 Garden Court) reminded us that the law relating to jurisdiction for divorce proceedings will impact all family law practitioners and clients, not just those undertaking cases with an international element.
Brexit brings a real uncertainty in the drafting of jurisdiction and applicable law provisions in prenuptial agreements. German lawyer Dr Daniela Kreidler-Pleus encouraged debate amongst the attendees about their practice. How is it possible to draft clauses on the election of jurisdiction when there are so many unanswered questions about the future? The subject was debated by the panel at the end of the day. Tim Amos QC (QEB) highlighted the importance of explaining the reasons behind the election of jurisdiction.
The ideas and views expressed at the conference were thought provoking and at the same time terrifying. It was clear that neither Judges, QC’s nor academics are able to predict the future of European family law and all expressed great sadness that the consensus we have achieved over the last 45 years could be confined to history.