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David Hodson on International Family Law: Not (necessarily) a political broadcast on behalf of UKIP

Date:2 JUN 2014
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Family lawyer

Where does the present debate on EU family law legislation lie with the sentiments expressed around Europe last Sunday through the ballot box of the EU elections? Is it in any way reflective of a bigger picture? Can lessons be learned?

The results of the EU Parliamentary elections last Sunday were on any basis quite amazing and historic. The first time in 100 years that one of the two main political parties in the UK had not won an election across the country. Incredible support for a Eurosceptic party in contrast to its previous vote only 5 years before. A far right party winning in France. A far left party winning in Greece. Significant victories and votes for other far right and far left parties around Europe.

As so often in elections, the outcomes are a mixture of the bigger picture, the EU Parliament, and the more local, national concerns, particularly with the austerity measures and financial difficulties around many parts of Europe leading to sympathies with the far right or far left.

The Eurosceptic parties and their MEPs in many countries have understandably distanced themselves from these far right and far left parties. They are still in a minority in the EU Parliament but some, although certainly not all, EU leaders are clearly taking notice since Sunday. These events do not happen in isolation and the leaders of several larger EU countries have been expressing concerns about the extent of EU powers and governance for a year or more. Euroscepticism has both caused these concerns and fed off them.

Family life and family law are only a small part of EU life. No one suggests they are centre stage. It is clearly financial worries, personal and national, which are often dominating. But they are certainly on the stage, and not just with a walk-on part. So where notionally might family law sit in that crescent of political interests in the EU Parliament from the Euro fanatics to the Eurosceptics?

Many family lawyers across England and Wales are keenly aware of the number of families in their community from across the EU for which some cross-border EU law is valuable, probably essential. EU legislation has made a significant beneficial difference over the past decade. Recognition and easy enforcement of foreign (children and finance) family court orders, common jurisdiction for divorce, straightforward procedures on service and evidence, assistance with legal aid, automatic support for child abduction, help with children in care and other areas. Many family lawyers would not want to lose these benefits for their clients.

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But then there are those areas where family lawyers shake their head in disbelief as the EU has imposed laws or demands which seem well outside the range of the benefits referred to above. They find themselves having sympathies with some of the Eurosceptic opinions and using fairly similar language of excessive powers, disproportionate laws, unreasonable demands and failure to listen. Has the EU in family law become a microcosm of the EU as perceived by many of the 500 million citizens across the EU?

Was there any real support for the EU telling all its member states that they no longer had any political or sovereign power to enter into family law arrangements with non-EU countries? Was this not an excessive use of power? The UK government allowed other governments to challenge this and it was heard by the EU court (ECJ) on, ironic date, 1 April 2014 with a judgment expected by the end of the year. The EU should never have tried to take on this excessive power.

Was there any mandate from the EU imposing family laws on Member States in cases in which no other EU member state was involved and which only concerned a Member State with a non-EU Member State, eg an Anglo Australian family or an Italian American family? Why can the UK and other Member States not make our own laws according to our own traditions and perceptions of justice and fairness in cases in which families have connections only with non-EU countries? Was the EU imposing such laws unnecessary and disproportionate?

Why has the EU not listened over almost 15 years to criticism of the first to issue principle on divorce? It has been highly criticised, is anti-family life and destructive of reconciliation and mediation, and has not featured in laws anywhere else in the world. Was this further evidence of EU high-mindedness, unjustified self-belief and refusal to accept informed criticism?

There are other examples.

In these very important instances, the EU has unfortunately shown in family law the very characteristics which have fed the Eurosceptic fire. It is such a pity given the many benefits which have arisen. But the EU should now significantly pull back in many areas of excessive powers, unnecessary laws, disproportionate measures and listen more to its constituencies.

Any 'in-out' referendum will not be decided on family law measures alone. But family law seems a microcosm of the real dilemmas facing many of us concerning the EU: the significant benefits and advantages of being part of a gathering of nations in the continent of Europe against the excesses of action taken by the body set up to look after that gathering of nations.

A real and public response by the EU over the next 18 months in pulling back from those excesses will certainly make it easier for many of us in supporting the EU at a referendum, as undoubtedly it will for many political leaders. Family law as a microcosm? Perhaps family law as a litmus test!

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.