In this 2-part series, Maria Wright, a solicitor and PhD candidate at the University of Bristol, looks at the immediate implications of a no-deal Brexit for cross-border children's cases.
This is part 2. Part 1, which was published yesterday, can be found here.
You can’t get legal aid in England and Wales for applications for the recognition and enforcement of orders under the 1996 Hague Convention.
As has been outlined previously, legal aid is not available applications to recognise or enforce orders under the 1996 Hague Child Protection Convention under the Legal Aid (Sentencing and Punishment of Offenders) Act 2012. It is available at present for the recognition and enforcement of orders under Brussels IIa. So if an individual has an order from an EU Member State (or a Contracting State outside of the EU) concerning a child, they won’t be able to get legal aid to recognise or enforce that order in the UK under the 1996 Hague Convention after 29 March 2019.
Cross-border co-operation might be impacted.
Both Brussels IIa and the 1996 Hague Convention have schemes for cross-border co-operation between Member States and between Contracting States, through Central Authorities.
However, the EU’s Note to Stakeholders suggests that if a co-operation request was made to the Central Authority under Brussels IIa before 29 March 2019 and it has not been resolved by exit day, it may be that a further request needs to be made under the equivalent provisions of 1996 Hague Convention. This is also something that could impact upon cases involving cross-border co-operation using the EU Service Regulation, EU Taking of Evidence Regulation, and European Judicial Network for judicial co-operation.
It might not be possible to transfer jurisdiction from an EU Member State to the UK
There are many differences between Brussels IIa and the 1996 Hague Convention, which have been outlined in detail elsewhere. However, there is a difficulty in the interaction between the two instruments which may present problems in the immediate aftermath of a no-deal Brexit, particularly in a child protection context.
Brussels IIa permits the transfer of substantive jurisdiction between Member States under Article 15. The 1996 Hague Convention also permits the transfer of jurisdiction between Contracting States under Articles 8 and 9.
However, there is a problem with the interaction between Brussels IIa and the 1996 Hague Convention which frustrates transfers of jurisdiction from EU Member States to 1996 Hague Convention Contracting States.
All EU Member States (except Denmark) use Brussels IIa. All EU Member States have also ratified the 1996 Hague Convention. The interaction between these two instruments is governed by a disconnection clause. Brussels IIa takes priority over the Convention where a child has their habitual residence on the ‘territory of a Member State’ in relation to matters governed by the Regulation. So in most cases, Brussels IIa is used instead of the 1996 Hague Convention by EU Member States. One of the problems with this is that Brussels IIa only permits a transfer of jurisdiction from one Member State to another, and not from a Member State to a 1996 Hague Convention Contracting State.
On ‘no deal’ exit day, the UK would become a Contracting State outside of the EU. This could mean that it will not be possible for jurisdiction in children’s cases to be transferred from EU Member States to the UK after a no-deal Brexit.
There are lots of cases which could be impacted by this, but particularly those where a family from the UK to an EU Country to escape care proceedings or in anticipation of Local Authority intervention. Often, Article 15 is used to transfer jurisdiction in these cases back to the UK. There are numerous reported cases involving the Republic of Ireland and the UK which fall into this category. It is unclear whether the change to the legal framework surrounding these cases brought about by a no deal Brexit will enable them to be determined in the same way.
Brussels IIa is in the process of being further revised, and the Recast version of Brussels IIa will resolve the problem outlined above. Proposed Article 75 (2) (b) of Brussels IIa Recast will permit an EU Member State to use the 1996 Hague Convention to transfer jurisdiction to a Contracting State outside of the EU.
However, Brussels IIa Recast is not yet in force across the EU. Thus, there is likely to be a gap between 29 March 2019 and the entry into force of Brussels IIa Recast where this problem may manifest itself.
A withdrawal agreement negotiated with the European Union would, to an extent, cushion the blow caused by the loss of EU private international law for children’s cases heard in the UK. But a ‘no deal Brexit’ is likely to cause legal complications to existing cases, and those heard in the immediate aftermath of exit day. The family justice system in England and Wales is already under considerable strain and legal aid is hard to come by for many parents who need access to justice. What is not needed in this context is an event which further compounds and complicates an already overstretched and under-resourced system.
Anne-Marie Hutchinson OBE QC (hon), Michael Gration ‘Availability of Legal Aid for Applications Pursuant to the 1996 Hague Convention’ 5 February 2018, Family Law Week, https://www.familylawweek.co.uk/site.aspx?i=ed187827
 LASPO 2012 Sch 1 Para 17 (1) (c)
 European Commission, ‘Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law’ 18 January 2019, https://ec.europa.eu/info/sites/info/files/notice_to_stakeholders_brexit_civil_justice_rev1_final.pdf Para 4
 Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), OJ L 324, 10.12.2007
 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters OJ L 174, 27.6.2001
 See Paul Beaumont ‘Private international Law Concerning Children in the UK after Brexit: Comparing Hague Treaty law with EU Regulations’ (2017) Child and Family Law Quarterly 29 (3) 213; Nigel Lowe ‘What are the implications of the Brexit vote for the law on international child abduction?’ (2017) Child and Family Law Quarterly (29) 3, 253.
 Brussels IIa Article 61 (a); 62 (1)
 West Sussex County Council v H  EWHC 2250 (fam). For an alternative interpretation of the disconnection clause in Brussels IIa (which pre-dates the drafting of the recast of Brussels IIa) see Henry Setright and others, International Issues in Family Law: The 1996 Hague Convention on the Protection of Children and Brussels IIa (Family Law 2015) 1.28-1.36)
See, for example, CFA (Ireland) v F [2018[ EWHC 939 (Fam); Child and Family Agency (Ireland) v M & Ors  EWHC 1581 (Fam); Re S  EWHC 3054; Case C-428/15 Child and Family Agency v D (R Intervening) EU:C:2016:458; EU:C:2016:819; HJ (A Child)  EWHC 1867 (Fam); LM (A Child)  EWHC 646 (Fam).