David Cameron has announced a referendum on the so-called "in or out" of the EU. But first, he said, there will be an attempt to repatriate some powers from the EU. Whilst some of us remain highly supportive of an EU trading bloc and other close connections, there is in places unhappiness about loss of historic, legal and other powers. In this four-part series, I examine areas where family law powers taken by the EU could (and should) pass back to the UK and other member states. Ironically, in three of the areas it does not concern the EU at all but is between member states and non-EU countries.
In my first two of four pieces, I looked at important but discrete issues: EU limitation on our jurisdiction in needs/maintenance claims and EU attempts to limit our discretionary forum law.
The third is more dramatic. It is our national ability, our competency, to enter into agreements, treaties and conventions with non EU countries. It goes to the heart of our national sovereignty with other sovereign countries.
In summary, England and Wales, and the whole UK, are now (arguably) powerless to agree bilateral or multilateral arrangements in family law with non EU countries. Unless the EU allows us to do so, we are forbidden. No longer can we reach agreements with our historically close countries; in North America, Australasia, the Caribbean, South East and Southern Asia and throughout the world.
It has its biggest and worse impact in child abduction where we cannot ratify the 1980 Hague Convention with those countries who have entered into it unless the EU agrees (and does so itself). This include countries with which we have had close historic ties, for example Singapore and in the Caribbean. These countries are understandably angry, because having signed up to 1980 and having come to the Hague table, they find we, often their close former Commonwealth friends or with other strong connections, have to treat them as non-Hague countries with non-Hague laws and procedures. Children lose out.
I suspect the vast majority of family lawyers, and the public, are wholly unaware of this imposition by the EU on our relationship with non EU countries. It starts to indicate why those who do know these things are saying the EU extension of powers has gone too far.
There are 2 separate elements.
First, in December 2011 the EU Commission issued proposals for the EU to accept the accessions of eight countries which had then ratified the 1980 Hague Child Abduction Convention. They explained that they considered that the EU (alone) has competence on behalf of EU member states to accept these accessions from non-EU countries. Apparently the UK Government does not accept the EU assertion of exclusive competence to accept accessions, but is not willing to defy the EU without the support of other EU countries, ie a long and political process.
The EU position is that, if post December 2011, any Member State contravenes this EU assertion of competence on 1980 Hague Convention accessions by individually accepting an accession from a non-EU country (as we want to do with countries such as Singapore), Member State risks being "infracted" by the EU.
Infraction is EU bureaucrats' speech for infringement or violation of an order; in this case a command from the EU. If the infraction is upheld the fine can run at €8 million a day. No UK civil servant and very few national politicians are prepared to risk this. Ignore for this purpose of course the anecdotal perception that some countries around Europe run up infraction penalties as frequently as some people collect parking tickets, and then refuse to pay! Ignore also that since December 2011 some leading EU counties have apparently entered into individual accessions with non EU countries under 1980. The UK is law-abiding and therefore we don't do anything to risk an infraction. The official UK Government line may be that the EU imposition of exclusive competency is not accepted, but whilst it is passively obeyed and not openly opposed, international children suffer and our relations with some non EU countries suffers.
The second EU restriction on national sovereignty with non EU countries is even wider. It might be known by some practitioners, but I suspect very few. Why would any government want to publicise this sort of thing?
If Member States wish to enter into bilateral agreements with other non-EU countries on certain family matters on which the EU has already legislated, for example maintenance and divorce etc, Member States need the agreement of the EU. This is set out in little known Council Regulation (EC) No 664/2009. It was passed on 7 July 2009 and came into effect on 20 August 2009.
The 2009 Regulation establishes a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to parental obligations, and the law applicable to matters relating to maintenance obligations. This is the territory of Brussels II revised and the Maintenance Regulation, ie all areas of status of marriage and provision of needs
The procedure is well beyond the scope of this opinion piece. But where member states want to enter into a new agreement or amend an existing agreement with a non-EU country, permission is required from Brussels. It may not be given. In practice it is invariably not given where it covers these central areas of family law. Even if permission is given to enter into negotiations with a non-EU country, the EU still has the power before the final conclusion to withdraw any permission for the proposed bilateral agreement.
Pursuant to Article 300 of the EC Treaty it is for the Community to conclude agreements between the Community and a third country on matters falling within the exclusive competence of the Community. Article 10 of the EC Treaty requires Member States to facilitate the achievement of the Community's tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. The 2009 Regulation establishes the necessary procedure.
England and Wales is probably the world's most cosmopolitan family law jurisdiction. We have very many families from all countries around the world, spread across our entire country and not just in a few metropolitan centres. These families are mostly highly integrated. Our family law is incredibly international in its content and practice. Yet only a certain amount concerns other EU nations and exclusively EU families. But the EU tells us what we can and cannot do with non EU countries.
Unless and until it is democratically agreed that the EU should have power to create and impose substantive national law on member states on matters such as divorce and financial consequences and the best interests of children, the EU should limit itself to where it is really needed and has already done good work, namely in cross-border EU international family matters.
Yet by a succession of Regulations and other impositions, the EU has dramatically reduced our ability, our sovereignty, our competence to do the best for these international families by entering into international arrangements with other (non-EU) countries. These arrangements may not be necessarily civil law based (as are many EU measures) especially if with another common law country. These arrangements may sometimes be urgently needed for example for social and family life problems directly between us and the other country. They may be a direct consequence of discussions and initiatives at a senior level between senior judiciary; some of the best ambassadors for finding solutions for English family law issues arising abroad are our internationally aware judges.
When considering repatriation of EU powers, it is essential that the UK should restore its competency and sovereignty to enter into (and accede to) agreements with non-EU countries where in the best interests of international families and their children.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.