I examine the UK government consultation paper on proposed legislation on Brexit in respect of EU law. I find that unlike many other areas of law, family law does not need, nor want, EU law to be simply put into national law as the government proposes.
In only a couple of places at most will there then be a gap in the law which needs to be filled, and this can be undertaken by domestic legislation. Most EU family law only works on an entirely reciprocal basis.
On Wednesday, 29 March 2017, the UK government gave notice to the EU of the intention to leave the EU. On Thursday, 30 March 2017 the government published its White Paper: “Legislating for the U.K.’s withdrawal from the EU”. This sets out how the government intends to deal with the huge number of EU laws which now pervade every element of UK life. The stated aim is to produce certainty for business, public sector and everyone in the country.
The government states that it intends to convert the “acquis”, namely the existing body of European legislation, into UK law at the moment it repeals the European Communities Act, i.e. at the point of leaving the EU. It is said by the Prime Minister, Theresa May MP, in the foreword to the White Paper that this will provide maximum certainty and clarity. The same rules and laws will apply on the day after exit as on the day before. It would then be for the democratically elected UK representatives to decide on any changes to that law after full scrutiny and proper debate. This is as she announced in October 2016 at the Conservative party conference.
Undoubtedly this policy will be important, perhaps essential, for areas of law where there are legally imposed standards, regulations, rights of workers and consumers and similar provisions which are stand-alone entitlements irrespective of any reciprocity with the rest of the EU.
However with a couple of exceptions, EU family law operates only in the cross-border context. EU family law does not provide stand-alone, self-contained laws which can viably continue unless part of some reciprocal arrangement with the EU. The purpose of this note, compiled by us as specialist family lawyers dealing daily with EU family law at a very detailed level and with considerable day-to-day experience on how it works, is to examine how this government policy will actually operate. The conclusion is that a simple adoption of the acquis will be unsuccessful in family law. None of this is to detract from the overall government policy. It is simply not applicable or appropriate in family law
This note does not contain detailed citations, authorities or extended statute names which can be supplied if needed
Although the note is personally written, with the author alone responsible, the views reflect the lawyers in our practice which specialises in international family law
Perceived options in respect of EU law after Brexit
In discussion since the EU referendum between practitioners, academics and others involved in international family law, three options and routes have prevailed.
One option, described here as the first option without any intention of giving it a priority or preference, is that all EU family law is adopted into national law, as the government proposes, but crucially and fundamentally the UK enters into some arrangement with the EU to maintain complete reciprocity between us and the EU and its member states in respect of these laws.
The second option is as the government proposes in their White Paper namely all EU family law is adopted into national law. But this would be without any reciprocity because such reciprocity was either not wanted, was politically unacceptable to the UK, impossible to negotiate or politically unacceptable to the EU
The third option is to have no EU law within national law and to fill the gap in the couple of areas where EU law has not just been cross-border but has created substantive English law. There would be reliance on Hague laws for cross-border family work. The distinctive couple of areas are perfectly able to be agreed and put into substantive primary legislation before the UK leaves the EU
Operation of these options
Our worry and concern is that the first option is unlikely to happen, even if it was the preferred option. Some of us support the first option. I and others support the third option. None of us support the second. We believe this is the general feeling across many in the family law profession who have been considering this issue.
Parliamentary Justice Committees also do not support the second option. On Wednesday, 22 March 2017, the House of Commons Justice committee produced its report on the implications of Brexit for the justice system. Two days earlier, a similar committee of the House of Lords produced a Report on the same topic with far narrower evidence taking
In respect of family law, chapter 3 of the House of Commons Report, the recommendation is that the government should seek to maintain the closest possible cooperation with the EU on family justice matters, and in particular to retain a system for mutual recognition and enforcement of judgements. The Report says that Brussels II and the Maintenance Regulation are improvements over their default alternatives. But they are not without fault: races to issue resulting from Brussels II’s divorce provisions are particularly undesirable. Nevertheless, mutual recognition and enforcement of judgements in family cases is of demonstrable value in resolving cross-border instances of child abduction and non-payment Maintenance.
I have analysed and commented upon that report here. Some of the evidence on which they relied in a preference for EU legislation over the Hague Convention equivalents, as quoted in their Report, was not reliable. Even so they themselves stopped a long way short of saying that we should have all EU family law in national law. They were highly critical of some elements of EU law in practice. Their recommendation was reciprocal recognition and enforcement, which we entirely support. Adoption of the acquis will not do this. So the UK would have unsatisfactory EU laws within national laws without the reciprocity which is required for cross-border families.
For this reason, the proposals in the government White Paper for conversion of EU family law into national law will not work, for the law itself and for the families involved both here and abroad.
We doubt the first option will be achievable. In our perception in dealing with the EU, which goes back to my active consultation with the EU in the late 1990s before the introduction of the Brussels Regulation in March 2001, they have been unhappy that the UK has had a distinctive opt out in respect of family law. This opt out has been frequently exercised so that we have fewer EU family laws than the rest of the EU, with special provisions just for us in e.g. enforcement of maintenance orders where there is a two track process, one for us and Denmark and one for the rest of the EU. After discussions including with leading academics in continental Europe, we anticipate that the EU will only give reciprocity if we give up our opt out and moreover accept all EU family laws and not just those into which we have opted. This will be politically unacceptable in our judgement. More important for us as lawyers, it will be laws which are thoroughly against UK common-law traditions and practices including e.g. applicable law, choice of law.
With EU family laws intended to provide for cross-border families, they have minimal benefit and viability if only within the national law of one country. They only work in conjunction with the same law applying in the other member states. Laws on mutual recognition and enforcement require reciprocity. Judicial co-working based on legal requirements demand judges in different countries working from the same law together. The UK having the EU family law in its national law will not provide the necessary mutual recognition and enforcement which the Justice Committee recommended.
Accordingly, we urge the government to look distinctively at family law. It is a very important element of our social life. In family law, converting the acquis into national law will not answer the stated aims in the White Paper of creating certainty for either national families or our very many international families, both those who are here and UK families abroad.
Instead there is a twofold answer. In respect of the couple of areas where EU law has changed UK national substantive law, there should be short, new primary legislation. Agreeing it should not be contentious, both generally and certainly compared to the many difficulties if the acquis, EU law, were simply made into UK law. In all other areas, there are good alternatives in the global international family laws of the Hague Conference on Private International Law, of which the UK is a prominent supporter and signatory and to which the EU is also a signatory. When the UK leaves the EU, we will still have a mutual reciprocal relationship with the EU through these Hague Conventions. This is the far better and more reliable approach, moreover with a highly respected global organisation bringing forward international laws for all countries
Moreover this is crucial for the stated aim of the UK government, the English Law Society and others that the UK law should have a prominent global role. We have written previously about this in our submissions here. We look forward to being able once again to enter into bilateral and multilateral treaties with other, non-EU, countries to advance international family laws. By concentrating on global laws including with our traditional common law partners but also with other countries around the world with which we share many international families, we will take again our important place on the world stage and help many other countries around the world by promoting global family laws
To analyse how it will work in practice, we set out distinctive elements and the interaction with EU laws
We start immediately with one primary area where EU law has directly changed English substantive law. Jurisdiction, connectedness, to issue a UK divorce petition is now based on Art 3 of the Brussels Regulation. It could be converted into national law but this makes no sense. Some parts are irrelevant to us e.g. joint petitions which we do not have. It presumes a mutual forum criteria which, as below, will be impossible without reciprocity. In any event it has been strongly condemned by practitioners, judges and the House of Commons Justice committee. Without the forum criteria, it makes no sense to have the historic English basis of Jurisdiction of sole domicile only available if no other EU member state has Jurisdiction. Moreover England has interpreted some elements of the Jurisdiction grounds very differently to most other EU member states, as our firm investigated and analysed and put to the Court of Appeal in the case of Tan v Choy  EWCA Civ 251. Without reference to the CJEU, we will perpetuate differences in its interpretation. So we will move inexorably away from how the rest of the EU understands divorce Jurisdiction. Converting the Brussels Regulation into national law will be of no benefit and only cause further confusions, internally and internationally, delays and increased judicial time with more litigation.
Moreover this EU divorce jurisdiction was predicated on a common divorce jurisdiction across the entire EU, which was commendable whilst we were part of a common family law justice system in the