A Parliamentary Report, like a court of law, is only as good as the evidence received. I was at the session in mid-December when oral evidence was taken. The Justice Committee was not told that, within a month, the USA would join the 2007 Hague Maintenance Convention. Indeed the USA was one of the original promoters of the Convention. This major country joining is anticipated to bring many more countries on board. I had the benefit of meeting on Friday, 24 March in The Hague with representatives of the Hague Conference on International Law and I understand that in the coming year a number of other countries should become signatories. So the fact that it is little used, in December 2016, does not mean it will be little used in April 2019 when we leave the EU. Moreover the fact that a worldwide law is little-known, a feature more of information and training within a profession, is not a reason to ignore it. I refer more to the Hague below
At the moment the UK is subject to orders of the European Court, CJEU. It’s jurisdiction will end in law on Brexit. The Report says that if the UK and the EU could continue their mutually beneficial cooperation in various ways, without placing any binding authority at all on that court’s rulings, this would be ideal. This must be right on any basis of international judicial comity and respect for opinions of other courts, whether national or international. The Report goes on to say that a role for the CJEU in respect of procedural matters including jurisdiction, applicable law and enforcement in recognition of judgements is a price worth paying to maintain effective cross-border tools of justice. I suspect many would want to understand much more what would be the parameters of this before making further comment.
The Report concludes with a recommendation that there should be four principal aims of government’s approach to justice matters in Brexit negotiations namely:
The House of Lords report
On Monday of last week, 20 March 2017, the House of Lords Justice Committee produced its own report. I think many were confused in the autumn about the interrelationship between these distinctive enquiries. No law firms made written submissions nor were solicitors called to give evidence, unlike the House of Commons report. Some excellent barristers gave evidence. However in this arena, many international enquiries and consultations are dealt with by solicitors, but often not reach counsel. Sometimes thoroughly deserving cases on their merit have no prospect of court proceedings because of the EU laws and the parties seek redress abroad. Solicitors see many cases which do not go to court. To have a report without material input from solicitors is incomplete.
The Report refers several times to what may be alternative arrangements put in place. It draws attention to the fact that there must be reciprocity from the EU if placing EU family laws within national law. It must be open to doubt whether there will be this reciprocity and what terms may be possible
The Hague Conference on Private International Law
The Hague is the big loser from the House of Commons Report. I consider this is unfair, unjust and seriously worrying for global family laws.
The Report refers to the EU Maintenance Regulation as an improvement on the 2007 Hague Convention. But they were drafted as part of the same exercise and The Hague law does not have some of the problems of the EU law. By April 2019 it will have many signatories worldwide and it includes all EU member states. A number of governments have put resources into the iSupport cross-border case management system and digital sharing of information created by the Hague. It must always be remembered that the Hague applies worldwide whereas the EU laws are obviously only member states within Europe. The USA and other significant countries worldwide are or soon will be signatories. Perhaps if the Committee had had this information, it would have formed a different conclusion. It may now be for the Hague Conference to make representations direct to the UK government.
The Report rightly refers to the need for mutual recognition and enforcement of family court orders, which includes divorces. This is covered around the EU by Brussels II at present but with the huge baggage of the race to court and the discouragement to mediation and reconciliation. The Report does not refer to the 1970 Hague Convention on Recognition of Divorces, of which there are at least 20 signatory countries including the UK and which could be extended by April 2019.
More widely, I worry considerably that the implicit criticism in this UK government report, based on some evidence given to them, of Hague laws in contrast to EU laws could discourage other countries from joining into Hague family laws. A lot of work has occurred with countries such as Russia and Japan recently to bring them on-board. Much work is ongoing to join in other areas of the world including Islamic jurisdictions. Many English lawyers are very prominent in that work, both children and finance. Yet here is a UK government report saying that EU laws, which clearly have serious faults even admitted according to the Report itself, are nevertheless an improvement over the default alternatives namely the Hague laws. I consider this could damage the expansion of Hague laws. The comments in this Report must not stop the work of producing global international laws.
Indeed, although it may not have been within the brief of the Justice Committee, it was disappointing that the opportunity was not taken to set out the significant place of the UK in family law worldwide and the leading role it has played, and post Brexit will play, in global family law developments. For this it will need to work closely with the Hague Conference in producing international, rather than just European, family laws and practices and then to make sure they operate well in other countries.
The EU referendum vote has occurred: time to move on
Quite often it has seemed thus far that family law arguments in respect of Brexit have been a re-run of the EU referendum. There are those who supported the UK staying within the EU who, with others, have argued for all EU family law as it presently exists to be within English national law and reciprocated with the EU. There are those who supported leaving who, with others, have argued for no more EU laws. This may have been conscious or unconscious, deliberate or inadvertent.
But just like the country as a whole, this has to end. There now needs to be a coming together. The Referendum has happened. The Supreme Court has decided. Parliament has enacted. Notice is being given. We are moving onwards. Both sides and neutral sides must find ways forward.
The Report has very helpfully magnified in its recommendations the importance of cross-border recognition and enforcement. Surely most will support this, on both sides of Brexit. It is a fundamental need across the world generally, including within the EU specifically. But does this require the UK to bring all present EU law into national law and enter into distinctive relations only with EU countries. With the strong criticisms of some elements of EU laws, is it possible to focus on the cross-border recognition and enforcement and to leave behind the more divisive and contentious elements such as forum criteria on divorce, restrictions on sole domicile as a grounds for needs-based claims and the very adverse elements of marital agreements contrary to English law. Moreover do we still need the divorce jurisdiction found in EU law, which is predicated on a race to court and use of civil law concepts of applicable law.The English family law debate should now move on from the referendum and proceed on the foundation of this helpful House of Commons Report and discuss how mutual recognition and enforcement can go ahead to help international families without arguably the unhelpful baggage of some other elements of EU law. Perhaps neither side of the Brexit argument will be necessarily happy. But in the best tradition of family law negotiations, it should hopefully produce a beneficial outcome; for our country, for Europe, for Hague laws, for the world and, most important, for the very many international families.