How will family law be affected by the new Brexit agreement?

Perhaps overlooked when compared with the trade provisions in the European Union (“EU”) and United Kingdom trade agreement, is the impact the new Brexit agreement will have on the cross-border families existing on both sides of the English Channel. It is not yet fully obvious what effects this agreement will have on Family Law or what the implications will be for international practice.

As part of the initial withdrawal agreement, family matters filed on or before the 31 December 2020 would be governed by the previous EU law and would have any orders reciprocally honoured going forward.

Turning to the new agreement itself, there appears to be a lack of consideration on the topic of Family Law.  

Whilst there is some judicial co-operation included in Part 3 of the deal, it is limited to criminal matters and will only be relevant to Family Law where the disciplines overlap, such as in trafficking and exploitation. Unfortunately, domestic abuse is not one of these areas covered and this could increase the vulnerability of families travelling across the Channel. Additionally, the deal specifically protects the enforceability of contracts signed and communicated electronically. Unfortunately, this specifically excludes contracts governed by Family Law.

There is also the issue of the ejection from relevant agreements that the United Kingdom was signatory to as a part of the EU, the most prominent of which being the Brussels IIA Regulation and the Lugano Convention.

The Brussels IIA Regulation established the shared interoperability of European civil law, affording any citizen of the EU the capacity to act in any other EU jurisdiction, is extremely useful in a family context to recover abducted children or access assets sequestered in foreign jurisdictions. It also served to prevent repeat proceedings across European jurisdictions. The Lugano convention extended these provisions to some non-EU nations, chiefly Scandinavian ones.

As now a separate entity, the United Kingdom has been removed from the Brussels IIA Regulation and needs to join the Lugano Convention to maintain a similar level of interoperability in family matters on the continent. The United Kingdom has already made overtures on this front and is fully prepared to adopt the Lugano Convention. Iceland, Norway, and Switzerland have supported the accession the of the United Kingdom to the Convention.

The EU has yet to reply and needs unilateral assent from its member states. Given the uncertainty that could be spawned should the EU not admit the United Kingdom, there is some understandable apprehension that this could have negative consequences for those unlucky enough to fall into this hopefully brief regulatory vacuum.

In the event these are not resolved, cross-channel Family Law matters will be resolved in accordance with previous conventions that lack some of the stronger provisions, namely the 2005 Hague Convention on Choice of Court Agreements. The ability to stall or defend against actions under this treaty is likely to lead to less equitable outcomes for lesser resourced parties in family matters.

This is only a brief example of the kinds of issues that the EU and the United Kingdom will face together going forward, and unless these legislative gaps are addressed soon, the biggest impact will be to those who still embrace the notion of pan-Europeanism.

Nicholes Family Lawyers has a specialist foundation in international family law, including child abduction and property disputes. If you or someone you know needs experience, empathy and excellence in such a circumstance please do not hesitate to contact us.