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Brexit: To Hell in a handcart – Episode One

Date:18 MAY 2016
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Queen's counsel

We two authors are avowedly in favour of the United Kingdom remaining within the European Union. Our views are founded in the political and social realities on which membership is based and from which the legal consequences flow. The legal system in which we have both grown up (one somewhat earlier than the other) is that of EU law being directly applicable in the UK. It thus becomes our domestic law – and for good reasons which the misguided views of the Brexit supporters simply fail to realise. We shall endeavour to convince. Our shared views are best expressed through joint authorship. We believe that the decision of our opponents David Hodson and Gavin Smith(esteemed colleagues of ours but with a peculiar blindness in this field) to write separately aptly demonstrates that further fragmentation is on the way if Brexit eventuates.

The debate in this journal focusses on the issues facing family lawyers. But we repeat our message that the particular area of law nearest to our hearts and pockets must not be seen in isolation from the bigger picture.Episode I of our contribution will paint that bigger picture and Episode II will draw out its consequences in some detailed areas of relevance to family law.

The European Union as a geographic area epitomises the mobility of many an ‘international family’. We do not deny that educational, vocational and financial opportunities worldwide have led to a far greater degree of family relocation than was known to our parents’ generation. However, mobility is particularly marked within the EU and EU law recognises this by espousing the principle of freedom of movement. That is the bedrock on which the common jurisdictional rules applying to all Member States have been enacted. We refer in particular to (in their current versions) Council Regulation (EC) No 2201/2003 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and parental responsibility (Brussels IIa), Council Regulation(EC) No 4/2009 on jurisdiction etc in matters relating to maintenance obligations and Council Regulation (EC) No 1215/2012 (Brussels IR) on jurisdiction etc in civil and commercial matters. Family lawyers with some international practice are also familiar with Council Regulation (EC) No 1393/2007(the Service Regulation).

The full version of this article appears in the May 2016 issue of Family Law. 

Online subscribers can access the article here

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