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Brexit's impact on international family law
Date:17 JAN 2019
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Consultant editor

Writing exclusively for Family Law, the Rt Hon Sir Mathew Thorpe discusses Brexit and the impact of the potential loss of EU family law regulations, particularly Brussels IIa and the Maintenance Regulation.


 

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So many commentators have truly lamented the potential loss of the European family law regulations - particularly Brussels IIa and the Maintenance Regulation. We have all lived in a climate of uncertainty for long and that certainty endures. There is only present clarity in the event that we depart with no deal. The consequences for international family law are clearly stated in the Ministry Guidance: ‘Handling civil legal cases that involve EU countries if there's no Brexit deal’ published on 13 September 2018. 

As the Guidance states: "We are a contracting state in our own right to a number of Hague Conventions on family law, which cover many of the same areas as the Brussels IIa and Maintenance Regulations." 

The relevant rules covered by the Hague Conventions are:

  •       parental responsibility matters, including jurisdiction, recognition and enforcement;
  •        rules for the return of abducted or wrongfully retained children;
  •        maintenance recognition and enforcement;
  •        central authority cooperation.

    This is true - if trite. Indeed, it is the Hague Conventions that have originated international family law and the Brussels Regulations have then either adopted the Convention, albeit with modifications, or followed the model and form of the Convention. What the Guidance does not attempt is any comparative analysis: to what extent would we be advantaged or disadvantaged by this switch from European to global legal instruments? I will consider that question later but first I want to consider the loss of an instrument that would go uncompensated. That is the Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (2001/470/EC): hereafter referred to as the EJN.

    When introduced, the EJN had no relevance to family lawyers since, apart from the limited application of Brussels I, the was no European family law. But in the language of Europe, Civil includes Family, so with the advent of Brussels IIa in March 2005 the EJN became of great relevance. So first let us consider what is the EJN. After lengthy recitals in the Council Decision come the 21 Articles of the instrument. Amongst these the most fundamental are Article 2 which deals with composition and Article 9 which deals with meetings.

    As to composition the essentials are the contact point and the central authority for each member state together with:

    "… any other judicial or administrative authority … whose membership of the Network is considered to be useful by the Member State to which it belongs."

    The designation of a contact point for each Member State is mandated by Article 2(2). As to meetings a minimum of once every 6 months is set. The size of the delegations is set at no more than four per state. Article 58 of Brussels IIa subsequently mandated that central authorities shall meet regularly and that:

    "These meetings shall be convened in compliance with Decision No 2001/470/EC establishing a European Judicial Network in civil and commercial matters."

    Although in my experience the limit of each delegation to four was not strictly applied, still the European congregation attending EJN meetings has always been proportionately tiny. Thus there has been very little awareness of its activities and achievements even in the community of international family law specialists. Rayden and Jackson at para 45.164 offers an accurate summary of its creation, purpose and UK operation. But as far as I know there is no published appraisal in UK authority of its achievements and importance.

    Having attended almost all meetings carrying a family law item on the agenda between 2005 and 2013 I am confident of my ability to speak of its worth. First I would praise the Commission. Meetings of the EJN Have been liberally scheduled: perhaps seven a year including an annual meeting generally in December and a meeting dedicated to central authority issues generally in June. Although the default venue has always been Brussels the member state holding the presidency has frequently elected to convene a meeting in its own territory. It is important to recognise the cost of running the EJN. Quite apart from the core administrative and bureaucratic costs the commission paid the travel and accommodation expenses for all delegates.

    Secondly, I would praise the Commission's officials assigned to lead and run the organisation. The Director, Salla Sastamoinen, particularly impressed with her commitment, her skill in chairing the meetings and her diplomacy.

    Thirdly, I would praise the contact points. Many served for years gradually building their expertise and developing a close knit community of 27 specialists in function. A long serving contact point invariably received a heart-felt valedictory on retiring. No member state has been better served in this function than the UK represented perhaps from the outset by Eral Knight. Judgments as to when to intervene in debate and what note to sound have to be made on the spur of the moment and any intervention from Eral was always heard with respect and often won consensus.

    Fourthly, I would praise the dedication and authority of the central authorities. A highly qualified and long serving director like Andrea Schultz of Germany informed and enriched discussion on a wide range of issues of law and practice.

    Finally, I would record what opportunity the EJN gave for the development and consolidation of a European network of specialist judges, many of whom were nominated to the International Hague Judicial Network. Although some member states were slow to take the discretionary decision to include a specialist judge within ifs delegation attending a meeting it became increasingly apparent that debate and directional decisions were greatly enhanced by the experience and opinions of the judges. 

    So what in my time did The EJN achieve in the field of European family law and practice?

    Here is my list in no particular order of priority:

     1.     It has built a supreme support service for the family law and practise that the EU created and developed over a decade. Of course the creation of the black letter of law is paramount but the wise and just law is vain if it does not function as a result of the failings of those who administer or those who apply it. I am not able to relate the benefits achieved by the EJN to the cost of running it. I would only observe that The Hague Conference has never had the resources to provide support services for its Conventions that match the services provided by the EJN. Of course I acknowledge that it is undoubtedly easier to bond and progress a regional band of 27 states than a global collection of almost 100. However the Special Commissions, two a decade are simply not comparable in function and achievement.

    2.     It has developed an annual meeting to which any central authority may bring a conflicted or obstructed case, giving notice to the secretariat to that effect. The secretariat then ensures that the other member state involved comes to the meeting fully prepared to respond.

    3.     It provides the means of monitoring the practical operation of current law and practice, enabling delegations to define difficulties and perhaps to propose solutions.

    4.     Where an instrument mandates a future review( for instance Art 65 of Brussels IIa ) it provides an ideal forum in which to take some soundings as to deficiencies and shortcomings.

    5.     It is particularly effective in contributing to the effective operation of the Maintenance Regulation which essentially provides not so much justice as administrative channels for the collection and transfer of maintenance across national boundaries. Central authorities responsible for the service have been able to improve its operation by bringing general and specific problems for discussion at EJN meetings.

    6.     It has fostered the development of mediation in cross border disputes.

    7.     It has created a community of specialists that is not only international but also interdisciplinary: so contact points get to know not only other contact points but also central authority directors, judges and policy leads both in the Commission and in member states.

    I turn now to the question that I identified above but did not then consider: namely to what extent would we be disadvantaged from switching from a regional code of law that has in all instances claimed priority over the Hague's global code. Let me start with what I perceive to be the losses:

    1.     The loss of all that has developed from Council Decision (2001/470/EC) is for me the most serious as is evident from all that I have written in appreciation of the EJN. The proportion of working time given by the Network to family justice as opposed to other fields of civil justice demonstrates how needful are cross border family disputes for practical judicial and administrative mechanisms.

    2.     Next I would emphasise how important in family law, both national and international, is regular reform to ensure that its core of fairness reflects changing social values and circumstances. Who has not felt frustration if not despair at the reluctance of the government of the day in Westminster to undertake obviously necessary family law reform? But the chances of achieving modernisation or improvement in the light of operational experience are much more remote for The Hague Conventions. The process by which a Convention is created is complex and depends on consensus and diplomacy amongst the experts acting for the member states of The Hague Conference. Once created its utility depends on the number of states who choose to ratify/accede. The more states party a Convention attracts the harder it is to modernise. First a Protocol would have to be proposed and almost unanimously supported at a Special Commission. Even if the Protocol came into being it would only bind those states that then elected to be bound. Look by comparison at the facility with which EU law develops: Brussels II was swiftly revised into IIa and will soon be further revised into II reenacted. Furthermore the EU has effectively operated its modernising flexibility by extending and improving the text of the great 1980 Hague Abduction Convention when operating between European member states.

    3.     There is no supra national court available to which difficult points can be referred or which by purposeful construction can develop a Hague Convention. Of course I appreciate that in the Brexit debate in the UK the Court of Justice of the European Union has few supporters. But I would stoutly defend its performance in the field of family law. It's comparatively few judgements have been clear and sensible. It is the ECtHR which has caused damage and expense by its confused and conflicting utterances on Hague Conventions.

Turning now to the few gains of freeing ourselves from the European code we would no longer be bound to give it priority over the law of the Conventions. We would be able to act independently in the field of global family law without being told by Brussels that we lacked competence. We would be able to recognise accessions to Hague Conventions exercising judgement only in our national interest free from the ' all or none regime' of Brussels. At Special Commissions in The Hague we would not be bound by the policy line set by Commission officials at a preliminary meeting.

The real purpose of this article is to convey from my experience the benefits that the UK has derived not just from the operation of an extremely effective code of European family justice ( that point has been made by many over the last two years) but also from the Council Decision of 28 May 2001 creating the EJN. Because of the relative obscurity of 2001/470/EC (the text is not to be found in Lowe and Nicholls or in Rayden and Jackson) and the scant publicity given to the work of the EJN, my point is not easy to make.

That I also say from experience. I was one of many who gave oral evidence to the European Union Committee in the House of Lords on justice for families in the event of Brexit. As the only family specialist with practical experience of the operation of the EJN i did my best to emphasize its value and importance.  But my submission did not get a mention in the Committee's excellent report published on 20 March 2017. I was stirred to write this paper by an invitation to discuss Brexit at the recent annual meeting of the Cambridgeshire Local Family Justice Board in Peterborough on the 8 November 2018. It was a really good day - skillfully delivered by Fenners Chambers.

The Rt Hon Sir Mathew Thorpe