On Christmas Eve, with seven days to go before the UK fully left the EU, the Prime Minister, Boris Johnson, announced that a deal had been concluded with the EU. The full document incorporating the terms was published on Boxing Day morning. It consists of about 400 pages of text along with about 850 pages of Annexes, the titles of which indicate strongly there would be no family law aspects. What within the text is relevant for family law and family lawyers?
The answer is almost nothing. Apart from a few parting or marginal references, it is devoid of direct relevance. Indeed the greatest relevance is what is not included.
On New Year’s Eve, the UK ceased to be a member of the Lugano Convention. It was a member through EU membership although in practical terms only applicable with Switzerland, Norway, Iceland and Denmark. It provides for reciprocal recognition and enforcement of civil judgements which in the family law context means maintenance orders, needs-based provision. Previously, in the family law context within the EU this is provided by the EU Maintenance Regulation (MR). That ceased for all new cases after New Year’s Eve. The UK had asked to join the Lugano Convention which would then apply between the UK and the EU. It is understood that Switzerland, Norway, Iceland and Denmark had agreed but the EU did not respond. It had been thought it might be part of the trade negotiations. But the document is silent: a word search of Lugano comes back completely empty. It may be of course that it is simply a matter of EU policy on private international law which was regarded as inappropriate for the trade agreement. Family law itself already has a substitute in the 2007 Hague Convention. However outside the family law context, commercial lawyers are desperate for the UK to join with the EU for proper functioning of recognition and enforcement of civil judgements around Europe. The UK is not now a member as of 1 January 2021. If the UK is to subsequently join, it is an appalling failure of international cooperation and statesmanship that individuals and businesses across Europe have been left with this period of time in which there is no substitute for either Brussels I or MR. The UK applied to join in April. What good reason can there be for the EU, because it seems that the ball has been decidedly in the EU’s court, not to agree? This is a monumental failure. If the EU intends to refuse to agree to the UK joining, then say now. But do not simply refuse to respond, particularly do not create the lack of any seamless transition which will only create more uncertainty and more litigation.
Two other absences were far more likely but had not stopped family lawyers hoping nevertheless.
About half of EU member states are signatories to the 1970 Hague Divorce Recognition Convention. This provides for automatic recognition of final divorces among signatories. It is not an issue for incoming divorces intended to be recognised in the UK as we are a very liberal regime and nonrecognition is rare. But there is anxiety about recognition of UK divorces in a few EU member states, or at least the longer and more expensive process for recognition. It had been hoped that the EU would encourage the outstanding EU member states to become signatories. It was very unlikely to appear in the trade agreement and hasn’t. It must be hoped the EU will subsequently give that encouragement.
One of the EU laws which will no longer apply between the EU and the UK relates to reciprocal recognition and enforcement of domestic protection orders, looking after the victims of domestic abuse. The UK has committed to automatic recognising of orders made from EU member states so that victims do not suffer. The UK invited the EU to reciprocate but it hasn’t. It was always a long shot to hope this would be in the trade agreement and it isn’t. Again it must be hoped that the EU will subsequently extend this protection to the victims of domestic violence in the cross-border context.
So what is there pertaining to family law?
There is a significant section on cross-border legal practice; not in the case of working with lawyers in other firms abroad but in the context of specifically working as a lawyer in another jurisdiction. The English Law Society has been campaigning significantly on this. It is Part 2, Title II, Services and Investment, specifically Section 7, p113. It will affect those firms with offices in EU member states. The generality is beyond this note although it is worth observing the distinctive definition of legal arbitration, conciliation and mediation services in footnote 32 on page 114. Cross-border family law mediation and arbitration is very limited, unfortunately, and will hopefully grow over the coming years. It will be essential to examine these elements for any considering cross-border mediation and arbitration work. As to legal services, whilst undoubtedly some operate around the EU, many would instruct a specialist in the other country involved.
Title III of Part 2 concerns digital trade, p116. Article DIGIT.10 covers conclusion of contracts by electronic means, p119. Clause 1 states that each party, the UK and the EU, will ensure that contracts may be concluded by electronic means and that laws neither create obstacles nor resulting contracts deprived of legal effect and validity solely on the ground that the contract has been made by electronic means. All very commendable. But clause 2 makes it clear this specifically does not apply to contracts governed by family law or by the law of succession. In England where we are very digitally advanced in family law, this is perhaps disappointing but certainly does not stop continued advances in use of digital contracts for relationship agreements.
Part 3, p282, was forecast as the area concerning judicial cooperation. But it’s title immediately indicates its narrowness. It is specifically in criminal matters. There may be some family law cases which touch on this when penal notices or intended arrests may have cross-border intended application in which case these provisions should be consulted. They will be rare. The text goes on to have a list of criminal offences, p313, which will be subject to the mutual extradition and related arrangements. Although they include, rightly, human trafficking, rape and sexual exploitation of children, it does not include forced marriage, FGM or significant domestic abuse. There is a lot of work which has to be undertaken in respect of cross-border operation of protection of these victims and corresponding cross-border criminal action. It is a pity some or all of these categories could not be incorporated
And that is it. A word search of divorce or abduction comes back empty. Child and family appears in many contexts, and it certainly cannot be said this agreement is only about trade and commerce. There is much about movement of families, cross-border state benefits and similar. But nothing obvious about the direct reference of family law in the conventional understanding in English law.
Of course family law already has the significant benefit of the Withdrawal Agreement 2019 which in essence provides that as long as proceedings are instituted on or before 11 PM on 31 December 2020, EU laws will continue to apply to orders subsequently made in those proceedings as it will to orders already made. So family law in this regard was mostly already catered for in UK and EU relations. It had however been hoped that some outstanding matters, important for cross-border families, especially on which the UK had been hoping to hear from the EU, might have been incorporated in the agreement. It was not to be and the work must now continue in the New Year to encourage more and better arrangements for the best interests of international families and their children.
It is an immense document and the author would welcome hearing from many other lawyers in the UK or the EU about other family law aspects within the agreement document.