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David Hodson on International Family Law: Ministry of Justice review of EU powers in family law
Sep 29, 2018, 21:09 PM
David Hodson publicises a Ministry of Justice review, ending this month, into the extent of the EU laws and powers in family law and urges all lawyers dealing with international families to respond to this vital consultation
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The Ministry of Justice is presently conducting a review of the extent of the powers and laws of the EU. This includes family law where the influence of the EU is very keenly felt by practitioners dealing with international families. The review period ends on 3 August. The Ministry of Justice are of the view they have consulted widely but I believe many practitioners are completely unaware of this process. A workshop held by them in London a week or so ago attracted no more than a dozen or so lawyers. It is very important that practitioners respond.
The EU are continuously extending their powers and their laws. Specifically they no longer limit themselves only to cross border cases involving more than one EU country. They now consider their laws and powers should have worldwide effect on member states. This affects both national law when no other EU countries are involved and international cases involving only non-EU countries. Many practitioners consider the EU should limit itself to cross border EU cases. Moreover the EU continually tries to make the UK come into line with continental European approaches and legal traditions.
This is the best (maybe the only) opportunity for us to give a response within the democratic, political process. It is essential that this Ministry of Justice review is widely known and receives practitioner response.
Whereas a decade ago EU law only affected cross border EU cases e.g. Brussels II, the EU has grown confident and powerful. It now intends its legislation to affect all international cases including with non-EU countries. It insists that member states have no political or legal power to enter into family law agreements with non-EU countries. Many consider this is neither what was originally agreed nor wanted for international families.
A few examples, in the space permitted here, show this. In December 2011, without any real consultation, the EU said that member states could not now enter into agreements with new signatory countries to the 1980 Hague Child Abduction Convention without the EU itself doing so on behalf of all member states. So countries such as Singapore, an important signatory for the UK, have to be treated by us as non-Hague countries. When Japan comes on board in hopefully Spring 2014, there will be rejoicing around the world except in the EU where we will continue to treat them as a non-signatory. This EU imposition is appalling for the international children involved and without any justification.
The EU has claimed exclusive competency to enter into agreements with non-EU countries in respect of a broad range of family law matters and has said that member states cannot do so. This includes countries and areas like the US, Australasia, South Asia where England has a lot of family law "traffic". Indeed the UK government entered into a EU Regulation in July 2009 to govern the circumstances in which a member state could ask the EU for permission, cap in hand, to enter into any bilateral family law agreements. We would not have needed to do so if the EU had not "claimed" such worldwide powers.
This so-called universal effect from the EU has already occurred in respect of the EU Maintenance Regulation whereby the UK and other member states no longer have powers to make "needs"-based orders on sole domicile jurisdiction alone even if no other EU country is involved. Although the UK government was aware of this before the law was introduced, it took about six months or so after it's introduction for practitioners to be aware that this was what was intended by the legislation. It has already had many adverse consequences. It was not needed and should be repealed.
So one element of the review may well be to say that the EU has gone too far in assuming powers to deal with non-EU matters
There is then the EU insistence on concepts such as first to issue, applicable law and similar. The forum racing introduced by Brussels II has had the most dramatic effect on English practice where another EU country may be involved. It is now extended to other legislation such as the EU Maintenance Regulation. It goes against all English good practice concepts such as attempting ADR, agreements, reconciliations, resolutions etc before issuing proceedings. Yet the EU refuses to back down. Its solution is imposing on the UK and a couple of other EU countries their demand that we should apply not necessarily English law but foreign law of the country with which a couple may have a particular connection. This is a civil law, continental European concept which is completely alien to English family law practice. There are good, workable alternative solutions but the EU refuses to contemplate them. The opportunity should be taken in this Review to examine the insistence of the EU in family law to have certain concepts which have far reaching adverse consequences for families and children.
There are several other areas where practitioners will want to comment.
Although the review does not say, the clear backdrop is the 2017 "in or out" referendum proposed by the UK government. As I understand it, before the referendum the UK government want to approach the EU to discuss reclaiming EU powers and laws affecting the UK. Although many of us hope that the UK will remain in the EU, in these family law matters the EU must be reined in and limit itself to certain elements within cross border EU cases. The EU has produced much good legislation in family law which we do not want to lose but its domineering approach, imposing rather than consulting, is totally unacceptable and has gone much too far.
So this consultation is very important indeed. All practitioners dealing with any international families, EU or non-EU, should respond.
If any would like to correspond about this, please contact me. My firm is happy to host a short meeting in London to discuss responses if felt beneficial and please contact me.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.