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The Brexit debate: Project fear – no fear

Date:15 JUN 2016
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Barrister, Arbitrator and Mediator
The below article appears in the May issue of Family Law at [2016] Fam Law 696 and has been made available, free of charge, as a service to our readers.

Vitalstatistix, the Gaulish chief in the Asterix stories, suffers from the ever-present fear that the sky may fall on his head. But despite the hysteria which our learned opponents in this Family Law debate sought to generate by their tabloid-style headline in the May issue, family litigants, lawyers and judges need have no such fears in the event of Brexit.

First, the timing is on our side. Notification to the EU of our intention to withdraw under Art 50(2) of the Treaty on European Union (TEU) would be made at the time of our choosing. Plainly, David Cameron (or, more likely, his successor) would not make that notification on 24 June, or any time soon thereafter. During the 2-year period following notification, EU law would continue to apply as at present. During that time, either a withdrawal agreement would be concluded, or in the event that no agreement had been concluded (and if as is unlikely no extension of time had been agreed with the EU), EU law would simply cease to apply (Art 50(3)). If the government needed more time to enact replacement legislation it could, by simple amendment to the European Communities Act 1972, legislate to the effect that existing EU family law (save to the extent expressly repealed) will continue to apply. But as a token of our goodwill, our very first step would surely be to confirm that EU judgments – whether divorce, children or financial – would continue to enjoy recognition and be entitled to enforcement in the UK, on precisely the same terms as they do under existing EU law.

Secondly, as David Hodson demonstrated convincingly in his article in the May issue, should we leave the EU we will not be cast adrift, impotent and lawless. There is a vast raft of existing international family instruments covering divorce, child law, maintenance and other areas. We are already bound by many of these, most importantly, the 1980 and 1996 Hague children Conventions and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (‘2007 Hague Maintenance Convention’). In our future legal relations with the EU in these areas, we would simply exchange our status as an EU Member State for status as a non-Member State.

Thirdly, reverting to purely domestic law will be far simpler than the reverse exercise of amending domestic law to render it compliant with EU law. We have had many years’ experience now (for better or worse) of applying EU measures. It will be easy to identify those provisions which we wish to retain and those which are detrimental to family justice. We also now find ourselves, as a result of our right to ‘opt in’ to Justice and Home Affairs matters (Protocol 21 to the Lisbon Treaty), semi-detached in any event in a number of areas of EU family law. Most importantly, the UK (and Denmark) decided, quite rightly, not to opt in to the 2007 Hague Protocol (Council Decision 2009/941/EC), as this would have required our courts in some circumstances to apply the law of other Member States when determining maintenance claims. The UK also decided not to opt in to three other Regulations: ‘Rome III’ (Council Regulation (EU) No 1259/2010), which introduced ‘applicable law’ rules for divorce; the Wills and Succession Regulation (Regulation (EU) No 650/2012); and recently revised proposals for Marital Property and Partnership Property Regime Regulations (COM 2011/0126 and 2011/0127). There are thus potentially four EU measures with which we would not need to concern ourselves at all on Brexit.

So much for the mechanics and consequences of Brexit. The participants in this debate are agreed on two things. First, no family litigant or lawyer will vote on the basis of EU family law alone (or even at all). Secondly, EU family law is neither uniformly good nor uniformly bad. That said, it is legitimate, from this side of the debate, and in relation to divorce and financial remedies (on which topics alone, if at all, the writer may be qualified to express a view), to consider which parts of EU family law we would be better off without. Three stand out.

The EU Maintenance Regulation

Post-Brexit, few will mourn the passing of the EU Maintenance Regulation (Council Regulation (EC) No 4/2009). Indeed, one of our distinguished opponents in this debate has summarised it perfectly: ‘… some four years after the Regulation came into operation, it may be apt to contemplate whether the Regulation has done other than introduce technicality, complexity and uncertainty for individuals, legal practitioners and judges’ (R Bailey-Harris, ‘Enforcement and variation of orders under the maintenance regulation: are our judges and legislators EU law compliant?’ [2015] IFL 252). Let us leave aside the question whether such a far reaching Regulation was ever justified and focus on the question whether it is fit for purpose.

First, its complexity and poor drafting have spawned a number of important areas of uncertainty. Can a maintenance creditor apply direct to the court of country B for enforcement of an order made in country A, or is he or she obliged to apply through the Central Authority (Chapter VII). Two reported domestic cases thus far have grappled with this issue: EDG v RR (Enforcement of Foreign Maintenance Order) [2014] EWHC 816 (Fam), [2015] 1 FLR 270 and MS v PS (Enforcement Procedure Under the Maintenance Regulation: Reference to CJEU) [2016] EWHC 88 (Fam), [2016] FLR (forthcoming and reported at [2016] Fam Law 304). The judge in the latter case made a request to the CJEU for a preliminary ruling under Art 267, TFEU, as the Regulation was found to be unclear. A similar issue has arisen in relation to the variation of maintenance orders. Can the applicant apply direct to the court of country B to vary a maintenance order made in country A, or, again, must the application be made through the Central Authority? The operative articles of the Regulation do not deal with these issues, and the recitals provide no clear guidance. The problem was addressed in AB v JJB (EU Maintenance Regulation: Modification Application Procedure) [2015] EWHC 192 (Fam), [2015] 2 FLR 1143 a decision that has given rise to considerable debate (see, notably, [2015] IFL 252 and 258 and FLW, 17 March 2015).

The facts of these cases, and the legal arguments and outcomes, matter little for present purposes. The point is that this entire debate could have been avoided by an Article stating expressly whether the applicant has, or has not, a choice of route when commencing an enforcement or variation process. By contrast, the wording of the 2007 Hague Maintenance Convention (to which we would continue to be a signatory on Brexit) is very clear. There is a choice: Art 37(1) (establishment and variation of maintenance decisions), and Arts 9(5) and 37(2) (recognition and enforcement). So much for the EU’s much vaunted principle of legal certainty.

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As an unwelcome by-product of our decision not to ‘opt in’ to the Hague Protocol, we now have a twin-track enforcement regime with the EU: maintenance orders originating in other states (apart from Denmark, whose orders must be registered) are enforceable directly, without the need for a declaration of enforceability (ie registration); UK orders, however, require such a declaration in the country of enforcement as a prerequisite to enforcement. It is ironic that, while we now have an overly complex scheme for the enforcement of maintenance orders, we have no regime addressing directly the problem of enforcement of non-maintenance based lump sum and property adjustment orders. Such orders fall between the two stools of the Maintenance Regulation (as they are not maintenance orders) and the Recast Brussels I Regulation (Regulation (EU) No 1215/2012) (as they are, rightly or wrongly, deemed by the CJEU to be ‘rights in property arising out a matrimonial relationship’ and as such excluded from its scope: see Van den Boogaard v Laumen [1997] 2 FLR 399).

Secondly, a highly retrograde innovation is the provision (not found in the Regulation’s predecessor, the Brussels I Regulation), that its jurisdictional rules apply even where no other EU state has jurisdiction. The need for this global extension of the reach of EU law is baldly stated, without explanation or justification, in recital 15:

‘The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction.’

It is hard to see what single market or other policy consideration, or what legal principle, could justify preventing a Member State from applying its national jurisdictional rules in cases involving non-EU Member States. There are over 190 nation states in the world. Only 28 of them are EU Member States. This issue is brought into stark relief by the ‘sole domicile’ issue. By Art 3(c), a maintenance claim may be brought ancillary to proceedings concerning status (eg divorce) ‘unless that jurisdiction is based solely on the nationality [in the UK and Ireland, domicile] of one of the parties’. In Baldwin v Baldwin [2014] EWHC 4857 (Fam), [2016] FLR (forthcoming and reported at [2016] Fam Law 161) where the Asia-resident H petitioned for divorce in England pleading his own sole domicile, and W lived in Ethiopia, there was no connection with any other EU state. The English court clearly had jurisdiction to grant a divorce (under the residual jurisdiction in Brussels IIa, Art 7) and make sharing-based financial remedy orders – yet, by virtue of Art 3(c), not maintenance. In order to do justice, the English court, in addition to finding jurisdiction under Arts 4 (choice of court) and 5 (appearance of defendant), also found jurisdiction to exist under Art 7 (forum necessitatis), and in so doing arguably strained the meaning of the word ‘exceptional’ in that Article.

Thirdly, the principle of legal certainty in relation to the Regulation’s jurisdictional criteria has been dealt a serious blow by the tortuous reasoning of the CJEU in A v B (Case C-184/14) [2015] 2 FLR 637. It is clear from the Regulation’s recitals and Art 3 that there is no hierarchy among the jurisdictional bases. Despite this, the CJEU decided that where country A is seised of a child maintenance claim that is (prima facie) ancillary to status (eg divorce or separation) proceedings (Art 3(c)), and country B is seised of a child maintenance claim ancillary to parental responsibility proceedings (Art 3(d)), then, taking into account the best interests of the child (which are nowhere referred to in the Regulation), the maintenance claim may be regarded as ancillary only to the latter proceedings and not the former, albeit that under national law the claim may be unquestionably ‘ancillary’ to the divorce proceedings. The CJEU has, as so often, ignored the clear wording of the text and adopted a ‘purposive’ approach: ie this is what the law should be and this, therefore, is what it is. 

Lis pendens v discretion

Next, post-Brexit, we would no longer be bound by the lis pendens provisions of the Brussels IIa and Maintenance Regulations. Our courts could once more achieve just outcomes by deciding, in accordance with long established principles of forum conveniens, the country with which a case has the closest connection and is best placed for trying it. Lis pendens encourages the race to court. It discourages negotiation and settlement. It favours the rich, who can afford specialist legal advice. Far from introducing legal certainty, lis pendens has generated its own litigation industry. Jurisdiction shopping is the new forum shopping. Argument about arcane procedural and semantic technicalities has abounded as a result: see, by way of example and most recently, E v E [2015] EWHC 3742 (Fam), [2016] FLR (forthcoming and reported at [2016] Fam Law 301); S v S (Brussels II Revised: Art 19(1) and (3): reference to CJEU) [2015] 2 FLR 364 (in which, moreover, a request was made to the CJEU for a preliminary ruling (A v B (Case C-489/14), [2016] 1 FLR 31); Ville de Bauge v China [2015] 2 FLR 873. Costly arguments about habitual residence have proliferated. Judges in several reported cases have had to wrestle with the meaning of the poorly drafted, ambiguous fifth indent of Brussels IIa Art 3(1)(a), which states that jurisdiction shall lie with the courts of a Member State in whose territory ‘– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made’, a provision that Aikens LJ in Tan v Choy [2015] 1 FLR 492 observed, obiter, was capable of (at least) three possible constructions.

The European Commission is currently reviewing Brussels IIa. It is unlikely that amendments meeting these substantial concerns will result, not least because unanimity across Member States is required. The truth is that, for so long as the English divorce courts are an attractive forum, spouses will seek ways of having their cases heard here, and their lawyers will devise ingenious arguments to achieve that end. That being so, why not vest our judges once again with the power to filter out, on a discretionary, forum conveniens basis, those cases which should be tried here from those that should not, rather than leaving it to rigid and arbitrary lis pendens rules?

Power to conclude international agreements

Finally, at present, largely as a result of the expansionist jurisprudence of the CJEU, Member States are unable to enter into international agreements in a number of key areas, where the EU has so-called exclusive external competence. Space does not permit discussion of this doctrine, but the reader is referred to the controversial Opinion 1/03 (EU’s exclusive competence to sign the 2007 Lugano Convention) and Opinion 1/13 (EU’s exclusive competence to agree to the accession of non-Member States to the 1980 Hague Convention). For a scathing critique of the latter decision by a distinguished academic commentator, see here. The EU has also asserted exclusive competence in matters covered by the Maintenance Regulation. As result, Member States were powerless to sign up individually to the 2007 Hague Maintenance Convention (see Council Decisions (2011 220/EU and 2011/432/EU). Post-Brexit, we would be free once more to conclude agreements with non-Member States that we adjudged to be in the interests of our own system of family justice.

So Vitalstatistix – fear not – the sky will not fall in.

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