The European Union last week (30 June 2016) adopted the European Commission's proposals for reform of Brussels II, the Brussels Regulation.
This is the primary EU family law legislation. It sets out divorce jurisdiction in all member states and provides forum criteria where more than one EU Member State is involved. It adds child abduction laws to the 1980 Hague Convention, and it provides for the cross-EU border recognition of children orders and divorce orders.
The proposals will now be sent to the Council of the EU and a decision taken by unanimity. The European Parliament will be consulted.
The review of the operation of Brussels II has been underway for several years - and going very slowly. This note deals with the separate elements in Brussels II of divorce and children.
Proposals in respect of much-needed reform of divorce jurisdiction and forum criteriaThere are none!
After a long consultation process involving experts, judges, policy advisers and practitioners across Europe, and after an admission by the EU that the 'first to lodge' forum criteria was having adverse consequences, no proposals have been made. This has apparently been met with unhappiness; a very diplomatic term being used. Outside the niceties of diplomatic language, in reality the response is almost disbelief. There had been much support for reforms. Last autumn, the EU seemed to be distinctly positive towards a likely significant reform, although not necessarily as many in the UK would have wanted. But to have no reform whatsoever is amazing.
What are the two separate aspects in the context of divorce and forum?
First, in March 2001, Brussels II introduced identical divorce jurisdiction across the entire EU, in national and international cases, based primarily on habitual residency intermixed with some elements of residency, domicile and nationality. With a few minor elements of uncertainty of interpretation, it has mostly worked very well and is generally accepted. (Separately, I have written that when the EU laws fall on our leaving the EU, England could well adopt domestic divorce jurisdiction laws on these EU ones. This has not been the issue in the consultation.)
it is the second element which was controversial when introduced in March 2001, and has remained very controversial ever since and been constantly criticised with calls for reform. Because of the many international families around the EU and the EU's wide jurisdiction rules, it was always likely that, often, more than one EU member state would have jurisdiction - hence the potential for forum disputes, and hence the need for laws to deal with these forum disputes across Europe. The EU solution was that whoever was first to lodge proceedings secured the jurisdiction. This was irrespective of having a weak connection and another member state having a much stronger connection, known as lis pendens. Enter the rate to court to gain priority. Enter the victor, invariable the one seeking to break up the marriage, the one with access to specialist international advice, the one not wanting to contemplate pre-litigation agreements or mediation. It was thoroughly against the UK culture of attempts to settle and encouragement to reconcile. But the EU has throughout refused to listen, often claiming that it is an English problem: England is where many applications want to have their proceedings, and England has a very specialist and proactive family law profession. Only recently has the EU accepted that it is a problem.
More than a decade ago, some of us in England proposed a solution of a hierarchy of jurisdiction: a solution which has increasingly found favour in many places. Belatedly, the EU has looked at it and considered how it might work. The EU has looked alternatively at a transfer provision, an option for a member state to transfer proceedings to the country with the closer connection. The same option is available already in children case in Brussels II.
Whichever option, there had to be reform of one form or another to get rid of the worst elements of the first to lodge proceedings law and the unfair and arbitrary race to court. Instead, the EU has made no reform proposals at all. The dreadful anti-family life, anti-settlement consequences of this EU law will now continue for at least another decade until the next review process.
The EU has been very clear in saying that it is no part of their brief to look at marriage and marriage life. They do have a brief regarding divorce and family breakdown. Unfortunately, the laws in respect of the latter are inevitably having an impact on the former. There cannot be narrow reference to the laws of one element of family life without an impact on other aspects. A holistic approach to law is always important.
This is a shocking outcome. Perhaps they were unwilling to admit they were wrong in March 2001, and they have been wrong not to have reformed it at an earlier occasion. But they should have reformed it now. They have not. Families, particularly spouses who want possible reconciliation, use of mediation and negotiation, are the losers. It is highly regrettable.