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Brexit and legal proceedings about children – what’s in store?21st January 2021 Family Law
Although the UK left the EU on 31 January 2020, it was only at 11pm on New Year’s Eve that the legal relationship between the two parties really changed. Although the trade agreement went right down to the wire, the family law implications were worked out further in advance and the shape of things to come has been known for a few months now.
Michael Chapman has already blogged about the impact this will have on divorce and financial proceedings. I’d like to consider how “legal Brexit” will (and will not) change things for international families dealing with arrangements for children.
Both before and after Brexit, the law applicable to disputes between parents has largely been a matter for individual countries to determine. In England and Wales, the welfare principle – seeking an outcome that are in the best interests of a child – was and remains the paramount consideration.
How EU law has shaped our practice
In all areas of family law, EU law has made the greatest difference in the area of jurisdiction. That is, setting the grounds on which a particular country’s courts have power to deal with a dispute. For cases about the upbringing of children, the key concept is habitual residence. Broadly speaking, this means that the courts in the place where the child has their current home will settle questions relating to that child’s upbringing. Again, this remains the case before and after the end of the Brexit transition period.
For many children, assessing their habitual residence is a simple matter. However, for international families who split their time between different locations, those experiencing upheaval or who are in the process of relocating, this can become more complicated. This is especially so where a parent has taken a child across an international border or kept a child abroad against the wishes of the other – international abduction.
Abduction and ‘unlawful retention’
The main means for international cooperation in cases of this nature is provided by the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The UK remains a member of this Convention, along with the EU27 and many other countries including Australia, Canada and the USA.
The EU provided enhancements to this framework for dealing urgently with cases where a child has been taken to or retained in another country against the other parent’s wishes. In an ideal world, these would have been retained. However, the UK’s continuing membership of the 1980 Hague Convention is the critical point, which will ensure continuity in handling abduction cases going forward.
Enforcement and recognition of order in other EU states
This is one area where there will be a change. Prior to the end of the Brexit transition period, an order made in the UK was directly enforceable in any EU member state without further legal proceedings, provided a certificate showing that the order met certain requirements was made. Orders benefiting from this mechanism would include contact orders made to ensure an ongoing relationship between a child and their parent after the court had granted permission for them to relocate to another EU country. This automatic recognition and enforcement will continue for cases begun before 11pm on 31 December 2020.
However, for cases beginning after this date, the parties will need to obtain a mirror order to ensure that their order is recognised and enforceable in a country in the EU27. A mirror order is a court order made in one country that ‘reflects’ the terms of an order made in another. This process is nothing new. It is something we have been doing for many years in cross border cases involving non-EU states such as the USA or Canada.
Another Hague Convention, the 1996 Convention, will facilitate arrangements for recognising and enforcing UK orders in the EU. A small amount of extra work will be involved but this is not a radical departure and we anticipate good relations between UK courts and those of the EU27 into the future.
“Legal Brexit” does make a difference, particularly in the field of international child abduction and cross-border enforcement. However, this is primarily procedural. We fully expect continued cooperation between the UK and the remaining EU member states that keeps children firmly at the centre of the process. The fundamentals for resolving disputes between parents in England and Wales remain unchanged.