Family Law

In February 2020, the UK government said it would be leaving EU laws on final departure from the EU on 31 December 2020.  But what should be the status of existing case law from the European Court (CJEU)?  Specifically, which level of courts should be able to depart from it?  There was a consultation over the summer.

The International Family Law Group LLP was the only specialist family law firm to respond to the consultation paper, dealing with the hugely significant future role of the UK courts in shaping UK law when the Brexit transition period ends (31 December 2020).

The European Union (Withdrawal) Act 2018 (‘the 2018 Act’) as amended by the European Union (Withdrawal Agreement) Act 2020 (‘the 2020 Act’) sets out:

• Which elements of EU law are retained in UK law; and
• How retained EU law is to be interpreted, including the extent to which the case law of the Court of Justice of the European Union will be retained and should be followed by UK courts and tribunals.

The principle view [no need to respond but where does this principle view come from] is that UK courts should not continue to be bound to retained EU case law where they feel justice would be better served if there was a departure from it.

The 2018 Act gave the Supreme Court the power to make decisions which depart from the retained EU case law. 

The Consultation Paper

This consultation paper of summer 2020 considered whether any courts of lower standing than the Supreme Court should share that power.

The Options presented

Option 1: Extend the power to depart from retained EU case law to the Court of Appeal of England and

Wales and its equivalents in other UK jurisdictions; or

Option 2: Extend the power to depart from retained EU case law, in addition to the Court of Appeal and equivalent courts across the UK, to the High Court of Justice of England and Wales and its equivalents in the other UK jurisdictions.

iFLG’s position

iFLG supported Option 2 for family law.  We asserted amongst other things that:

• As distinct from large companies and others engaging in civil litigation, in the family law realm most parties cannot afford to take their case to the Court of Appeal; it is expensive in time and costs which the vast majority of parties to family court cases simply cannot pay.  To limit to the Court of Appeal will be to restrict access to justice for many involved in family court proceedings and thereby restrict opportunity for necessary and appropriate departure from EU retained law.
• England’s specialist family High Court judges are very familiar with the sorts of issues which arise on EU retained law and thereby ensure that only the necessary cases are dealt with. They could act as gatekeepers for cases which seek to depart from EU retained law (to seek to avoid variance in approach)
• Changes would come sooner

iFLG recognised extending the right to the High Court may give rise to some parties forum shopping and that of course particular care would need to be taken where a different approach to the same issue has been adopted in other UK courts of the same or higher standing.

However, on balance it was felt extending the right to review retained law to the High Court as well as The Court of Appeal would more likely increase fairness for family law clients by improving their access to justice.

The Government’s Conclusions

The Government consultation concluded that whilst it is appropriate to extend the power to depart from retained EU case law to courts other than the Supreme Court,  the extension should be restricted to the Court of Appeal (or equivalent) level.

They also concluded that the test which would be used by the Supreme Court should be applied throughout ‘whether it appears right to do so’ and that the doctrine of precedent will continue to apply in the usual way.

The draft Regulations will preserve the normal operation of precedent between decisions of UK courts. Courts will therefore continue to be bound by a decision of another court which would normally bind them on whether or not to depart from retained EU case law.

Next stages

The Government has produced a Statutory Instrument in Parliament here

This will be considered and debated by Parliament in the coming months, and, if approved by both Houses, will come into effect at the end of the Transition Period.

The Government’s response to the Ministry of Justice’s consultation paper on ‘The Departure from Retained EU Case Law by UK Courts and Tribunals’ has just been published on 15 October 2020. Read here