Family Law

Background

The European Union (Withdrawal) Act 2018 (EU(W)A 2018) received Royal Assent on 26 June 2018. Certain provisions, including powers to legislate in connection with withdrawal, devolution, parliamentary approval (meaningful vote), financial and other matters entered into force on 26 June 2018. Other key provisions, including repeal of the European Communities Act 1972 and other primary legislation, retention, publication and status of retained EU law, rules of evidence and interpretation (including the definition of exit day) are to be appointed. By virtue of the European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018, SI 2018/808, various provisions of the European Union (Withdrawal) Act 2018 came into force in the UK on 4 July 2018. The provisions include the regulation-making power which allows regulations to be made to create exceptions from the general rule, which prevents challenges to retained EU law post-Brexit on the grounds that an EU instrument was invalid.

EU(W)A 2018 enables the government to use delegated legislative powers to prepare the UK statute book for Brexit. The aim is to introduce legislation necessary to ensure an orderly exit from the EU in UK law, reflecting the preservation/retention of existing EU law in UK law where appropriate and correcting laws as required to ensure they operate appropriately after exit day.

Relevant EU law

In relation to family law, EU law is primarily concerned with procedure, as opposed to substantive law, which is instead determined by the relevant Member State. Numerous EU instruments are applicable to family law (see Annex 1 to Brexit and family law—Joint paper of Resolution, the Family Law Bar Association and the International Academy of Family Lawyers—October 2017 for a list), but the two main EU regulations likely to be encountered by practitioners on a day-to-day basis are:

• Brussels II bis (also known as Brussels IIa), Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility—this came into force on 1 March 2005 and replaced Brussels II (Council Regulation (EC) 1347/2000), and
• the EU Maintenance Regulation, Council Regulation (EC) 4/2009, which came into force in June 2011

The over-arching aim and purpose of the EU regulations is to determine the appropriate jurisdiction for the matter to be heard, for judgments in Member States to be recognised and enforced, and for co-operation between the judicial systems of Member States.

Developments

The Ministry of Justice and the Department for Business, Energy and Industrial Strategy jointly issued a planning document on 13 September 2018 that deals, inter alia, with the position for family law if the UK were to leave the EU without an agreement (a ‘no deal’ scenario). The document includes details of plans where an area of family law is covered by an existing Hague Convention, and areas where it is not. The Law Society has published no-deal Brexit guidance on family law, highlighting EU treaties that will cease to apply with immediate effect in the event of a no-deal Brexit and that the UK will leave the EU’s institutional structures and co-operation between the UK and EU will end, with potentially unknown effects and implications for ongoing proceedings.

Sifting process

Under EU(W)A 2018, before certain statutory instruments are formally laid in Parliament, they have to go through a preliminary sifting process to determine the appropriate parliamentary procedure. To date, key statutory instruments issued under the sifting process with implications for family proceedings are:

• The Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2018—with the purpose of ensuring that post EU Exit protection measures made in EU Member States will continue to be recognised and may be enforced in England and Wales and Northern Ireland, see also the explanatory memorandum
• The European Enforcement Order, European Order for Payment and European Small Claims Procedure (Amendment etc.) (EU Exit) Regulations 2018—with the purpose of, inter alia, addressing the position post-Brexit when European Enforcement Orders will no longer work effectively in the event of no-deal, see also the explanatory memorandum
• The Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018—with the primary purpose of repealing Council Regulation (EC) No 1348/2000 (the Service Regulation); and Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (the Evidence Regulation), once they have become retained EU law, see also the explanatory memorandum

The following SI was made on 30 October 2018, having been through the sifting process:

• The International Recovery of Maintenance (Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007) (EU Exit) Regulations 2018, SI 2018/1125—with the purpose of ensuring that the UK is ready, after EU Exit, to apply the 2007 Hague Convention on the international recovery of maintenance, see also the explanatory memorandum

As ever, it is a case of watch this space, but regardless of whether the current proposed deal goes through, a new deal is negotiated, or there is no deal, family lawyers need to start preparing clients now for every potential eventuality.

Geraldine Morris is a solicitor and head of LexisPSL Family. 

This blog post is based on an excerpt from the LexisPSL Family Practice Note: Brexit and Family Law. To read the full Practice Note and related content including News Analysis, click here to request a free 1-week trial.