The document discusses the implications of Brexit on family law practitioners in the UK, including challenges related to divorce, maintenance, child arrangements, and the potential for child abduction. It outlines the main EU regulations influencing UK family law and explores various options for maintaining legal cooperation post-Brexit, emphasizing the need for a harmonized system to prevent confusion and unfair outcomes for families. The conclusion highlights the uncertainties that may arise from losing reciprocity with EU member states and the importance of a smooth transition in judicial cooperation.

1. Annual Family and Child Law Conference 2017
Graeme Fraser
24th November 2017
Brexit and the Family Law Practitioner

2. • Divorce
• Financial provision after divorce for both spouses and
children, in particular the payment and enforcement of
maintenance
• Child arrangements between separated parents
• Child abduction
• Child protection cases
Ramifications of Brexit for families and individuals

3. • The interplay between domestic and EU instruments relevant
to UK family law and the role of the Court of Justice of the
European Union (“CJEU”)
• Options for family law upon withdrawal from the EU
• How the proposals would affect families in real life
• What international legal instruments would substitute EU law
provisions
• The importance of transitional arrangements
Points to consider

4. • Approximately one million British citizens live in other EU
member states and three million EU citizens live in the UK. Up
to 16 million international families in the EU could be affected
by cross-border disputes. Each year, there are approximately
140,000 international divorces and 1,800 cases of child
abduction. This means:
• Personal and family relationship issues are significant
• Certainty and co-operation is key
• Potential for unfairness and confusion for families once the
UK exits the EU
Importance of a harmonised family law system in EU

5. • Grounds for divorce whether fault or no fault based
• Amount and term of maintenance for spouses and children
• Child arrangements after separation, including living
arrangements, and allowing movement to a different country
• When a local authority can remove a child from parents’ care
• Granting protection from domestic violence
• All of the above have always been and will continue to be
decided under individual legal principles
Family law in the UK – Individual legal principles

6. • 1) Council Regulation No. 2201/2003 “Brussels II” dealing
with jurisdiction for divorce and issues concerning parental
responsibility for children encompassing:
• issues about child arrangements between parents and/ or
other family members
• where local authorities seek child protection measures
• child abduction cases
The main EU instruments impacting UK family law

7. • 2) Council Regulation No. 4/2009 “Maintenance Regulation”
dealing with maintenance obligations between family
members including:
• maintenance between adults in a family relationship, for
example, husband and wife
• child maintenance
The main EU instruments impacting UK family law

8. • Jurisdiction – the basis for a court in one country to hear a
dispute: where there is a sufficient connecting factor for a
dispute to be determined in a particular place; and
determining where a case is decided if there are proceedings in
two different countries at the same time about the same issue
• Recognition and enforcement of an order made in one
country by the courts of another county in relation to
maintenance, or for contact between a parent and child
• Co-operation between countries for the sharing of
information and enforcing orders, for example, to locate
missing people or speedily return an abducted child to his or
her home country
The procedural application of EU instruments

9. • When questions of interpretation arise, if the answer to the
question would make a difference to the outcome of the case,
then any court in any EU member state can refer that question
to the CJEU
• The CJEU is an overarching arbiter of disputes about what the
EU family law provisions about procedure mean to ensure the
EU member states can interpret the terms the same way
• “a role for the CJEU in respect of essentially procedural
legislation concerning jurisdiction, applicable law, and the
recognition and enforcement of judgments, is a price worth
paying to maintain the effective cross-border tools of justice”
[House of Commons Justice Committee report, 15 March 2017]
The CJEU

10. • Retains current system including harmonised rules across EU
• UK would remain subject to the CJEU, but in family law the
EU provisions are concerned with uniform procedural rules and
private international law, not substantive law
• Retention of input into future amendments of the provisions
• Resolution, FLBA & IAFL recommend this as the best option
long-term, and the only realistic option in any transitional
period
Option 1 Replicate EU instruments in UK domestic
law and maintain the reciprocal arrangements
between the UK and the other EU member states

11. • The effect of the Government’s EU (Withdrawal) Bill but
extremely problematic because many of the EU family law
provisions require reciprocity
• A “one way street” because the UK would continue to apply
EU family law and unilaterally recognise and enforce decisions
of other member states, but other EU member states would
not be obliged to recognise and enforce UK decisions. This
leaves significant risks of parallel proceedings in the UK and
other EU member states and irreconcilable judgments
• Potentially, this could leave UK citizens in a position of
significant vulnerability and confusion and lead to unfair
outcomes
Option 2 Replicate the EU instruments in UK
domestic law but without retaining full reciprocity
with the other EU member states

12. • This would take a long time to consider, negotiate and put in
place, and not achievable by 2019
• The interim position would need to be Option 1
• Alternative options to the CJEU would require the agreement
of the other EU member states
• Why would the EU agree alternatives to the CJEU when there
is already an overarching authority which works in the
circumstances?
Option 3 Make UK’s own bespoke
arrangement with the EU

13. • This means the UK exits the EU but the Government does not
write the EU domestic instruments into domestic law
• Other international instruments are already in place
• But it is not a straightforward matter to assume instant
applicability of other instruments after the UK leaves the EU
Option 4 The “no deal” scenario

14. • Maintenance obligations – 2007 Hague Convention does not
contain direct provisions for jurisdiction and does not regulate
where maintenance claims can be brought or what happens if
there are competing proceedings
• Children cases – 1980 Hague Convention weakens the
available tools available in relation children abducted to other
EU member states, while 1996 Hague Convention lacks
automatic enforcement of contact orders
• Divorce – 1970 Hague Convention does not contain direct
rules about jurisdiction, resulting in forum conveniens
arguments about which court is best placed to decide the
divorce, which could mean lengthy and expensive proceedings
What law would be applied in a “No deal” scenario?

15. • Lawyers would find it impossible to advise with certainty
about possible outcomes
• The UK courts would not know how their orders would be
received abroad, which could affect outcomes, cause delay and
additional costs for the UK courts and families
• Individuals would lose out by not being able to have UK
decisions easily enforced in other EU member states, adversely
impacting on UK families with international connections
Difficulties for family law practitioners if full
reciprocity is lost

16. • “The best way to ensure legal certainty for both UK and EU
citizens and business as we leave the EU is to facilitate a
smooth transition to a new relationship in judicial
cooperation… The optimal outcome…will be an
agreement…where litigating a cross-border case involving UK
and EU parties…will be easier cheaper and more efficient for
all involved” [HM Government (August 2017)]
• But…
• “It will not be good enough to adopt the strategy of enacting
these [EU family law] instruments domestically since their
efficacy depends on reciprocity and orders that are not
enforceable are not worth the paper they are written on.”
[Professor Nigel Lowe (November 2016)]
Conclusion - A time for hopes and fears