At 12pm on Tuesday 22 August 2017 the Government published their position paper regarding cross border civil judicial co-operation. It is the third in a series of five position papers setting out their proposals around the ongoing negotiations regarding the UK’s future relationship with the EU.
Today’s position paper focuses on the Government’s desire to seek a deep and special partnership across various issues (including family relationships) in the future (para 1). The report recognises that the UK as a non-member state country, will be outside the direct jurisdiction of the Court of Justice of the European Union (CJEU) but suggests that they intend to seek new close and comprehensive arrangements for civil judicial co-operation with the EU (para 2).
The paper sets out the range of EU instruments which currently apply throughout the EU (box 1) including Brussels IIa and the Maintenance Regulation. It goes on to say that there are approximately one million British citizens living in other EU Member States and some three million EU citizens living in the UK. When disputes arise, families need to know that they will be able to resolve their disputes in a clear and predictable way without undue delay (para 12).
Pursuant to the Government’s stated wish to seek clarity and certainty, they state their desire to seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis (para 19) which would mirror closely the current EU system and would provide a clear legal basis to support cross-border activities after the UK’s withdrawal (para 25). This appears to potentially shift from the view previously expressed by the Prime Minster, Theresa May, in her speech in October 2016 and by the Government in its White Paper Legislating for the UK’s withdrawal from the EU from which we had understood reciprocity was not being pursued.
One of our iFLG partners, David Hodson OBE, has written previously as part of the EU Law Working Group on divorce jurisdiction after Brexit. In that article it was anticipated that the issue as to how to deal with existing law derived from the EU after the UK leaves the EU could be dealt with in one of three ways:
- Existing EU laws are incorporated into national law with no reciprocity. This has previously appeared to be the approach suggested by the Government but we believe it would be fraught with difficulties and the absence of reciprocity would mean that it would not be workable in practice;
- Existing EU laws are incorporated into domestic law with complete reciprocity with all other EU Member States. This now appears to be potentially being suggested by the Government but we have concerns as to whether an agreement on this basis could be negotiated with the EU; or
- Existing EU laws do not form part of national law once the UK leaves the EU and there would therefore need to be new laws in place before the UK leaves the EU.
In addition the Government intend to continue to participate in the Hague Conventions and in the Lugano Convention (para 22).
As negotiations continue we are interested to see how matters continue to develop with the issue as to how the desired aim of reciprocity will be achieved so as to work in practice.
Michael Allum is an Associate at iFLG. He works in the divorce and finance team at and has a wide breath of knowledge in respect of all issues following the breakdown of a relationship. Much of his work involves complex international issues and he has a particular interest in jurisdiction and forum disputes.
The International Family Law group LLP
© 22 August 2017