This blog post was written for Together by Maria Doyle, an LLM student at the University of Edinburgh.  Maria conducted a placement with Together this summer and produced a report on the impact of Brexit on children with a case-study on cross-border family law.  Here she shares the key findings of this report.

With over 80 EU instruments that give direct legal entitlements to children, it is hard to imagine a single area of children’s lives which has not been affected by the UK’s membership of the EU.  When I started my placement in May this year, I set out to map these legislative protections.  Some were obvious such as EU child protection law, cross-border family law, free movement and immigration but the more I researched, the more this list grew.  First there was EU employment law, regulating parent’s working hours and maternal and parental leave.  Then there was EU consumer protection law with its regulation of toy safety standards and paediatric medicines.  Next was EU environmental law which has been instrumental in making beaches a safer and cleaner space for children to play in.  Add to these specific legislative protections the extensive EU policy and funding initiatives, and the impact of EU membership on children’s lives stretches even further.  Faced with the sheer scale of the issue, it was necessary for me to limit the scope of my final report to one area – cross-border family law.  Although the report focuses on a single area of EU law, the issues it raises illustrate the complexities arising from Brexit and the sort of problems which may arise in relation to the other areas mentioned above.

 

Key findings  

1. A significant number of children in Scotland are members of “international families”

EU free movement has resulted in a significant number of families with parents of different EU nationalities.  Last year, approximately 10% of births in Scotland were into families where at least one parent was born in another EU country.  When such “international families” break down, it is common for one of the parents to move back to the EU country of their birth to benefit from family support networks there.  Inevitably, disputes arise over where children should live and, in extreme cases, can result in parents abducting their children.  It is crucial that these “international families” have access to clear rules determining which countries courts should hear any disputes, and under what conditions decisions granted by a court in one country may be recognised and enforced in another.

 

2. EU law seeks to protect children’s rights in cross-border family cases

Where a dispute involves two EU countries, the relevant rules are set out in the Brussels II bis Regulation and the EU Maintenance Regulation.  These Regulations are based upon existing international law (including certain conventions of the Hague Conference on Private International Law).  However, EU law makes certain additions and enhancements which are relevant from a children’s rights perspective.  Over time, EU family law has increasingly sought to embed the provisions of the UN Convention on the Rights of the Child (UNCRC).  The current EU framework protects children’s rights in various ways.  Firstly, it reinforces the right of the child to participate in abduction return proceedings and have their voice heard.  It also emphasises that the best interests of the child is a key principle in decision-making.  Furthermore, it sets strict timescales within which abduction return decisions must be issued.  Importantly, EU law provides for the automatic recognition and enforcement of decisions made in other EU countries.  This provides children and their families with certainty and security around contact and care should they or their family members move to live in another EU country.  It also helps avoid the costs and delays associated with securing new orders in other countries and prevents parents from evading their obligations by moving elsewhere within the EU.

 

3. Children’s rights are being increasingly embedded in EU family legislation

EU law is constantly in the process of revision and development. Particularly relevant are current plans to replace the existing Brussels II bis Regulation with a new Regulation.  The current proposals display an even stronger commitment to safeguarding children’s rights in cross-border family proceedings.  Notably, they place an even stronger duty on EU countries to give children the opportunity to express a view in all cases falling within the scope of the new Regulation.  Other proposed changes aim to further streamline proceedings, and make it easier, faster and cheaper to enforce orders granted in another EU country.

 

4. Implications of Brexit

Whilst the EU (Withdrawal) Bill brings EU law into UK domestic law, this does not mean that the UK will continue to apply the above instruments indefinitely.  Indeed, the effect of the Bill is in itself problematic as EU family law, once domesticated, will lose much of its effectiveness and create a one-sided framework: the UK would still be bound to respect and enforce incoming orders from other EU countries, but the remaining EU countries would be under no obligation to treat orders from UK courts in the same manner, the UK now effectively being a “third state”.

Accordingly, it may be that the UK Government decides to repeal the “domesticated” version of EU family law and instead fall back on other existing international agreements as a way of resolving future cross-border family disputes involving the UK and remaining EU countries.  The key instruments here are the Hague conventions.[1] Reliance on the Hague conventions alone, however, may result in a watering down of the children’s rights protections currently expressed in EU law.  Furthermore, there are risks that Brexit itself may have technical implications for how easily the UK can fall back on the Hague conventions.  If the UK Government seeks to follow this option, then it must address these technical issues.  Moreover, additional guidance must put in place to ensure that children’s rights protection is at least comparable to that available under EU law moving forward.

Is there an alternative approach?  Some have argued that the UK could negotiate to remain part of the full EU family law framework.[2]  This would allow the above protections of children’s rights to be preserved and enhanced in line with developments at EU level, as well as preserve full reciprocity with remaining EU countries.  To be successful, however, this approach would require difficult compromises to be made around the role of the Court of Justice of the EU (CJEU) in overseeing such a UK-EU agreement on cross-border family law.  Some commentators have suggested that this may be possible if the UK Government were to agree to the CJEU having an advisory role in this area, even if it will not agree to the Court having a binding role.[3]

 

Conclusion

Since my placement began in May there have been many changes, a snap General Election and the publication of the EU (Withdrawal) Bill to name just two.  However, a great deal remains the same – children and young people’s issues remain largely obscured in the Brexit talks by the “more important” issues of trade and the economy.  Although in Scotland the Programme for Government gives some hopeful signs for children’s rights protection moving forward, it remains that these issues are still largely excluded from UK Government statements around Brexit.  We do not appear to be much further forward regarding what our post-Brexit society will look like. Crucially, the details of the UK Government’s post-Brexit immigration strategy have not been released.  This is particularly problematic in the context of cross-border family law, given that changes to immigration rules for EU nationals may affect the ability of some families to stay together.  In this way, Brexit could lead to a greater number of such families being broken apart and a subsequent rise in the number of cross-border disputes relating to children.  Unfortunately, it is not yet clear exactly how the post-Brexit system will work for such cross-border cases.  My report highlights the various options open to the UK Government.  What is clear, however, is that children and young people’s rights must be at the centre of any decisions made here, and indeed in the wider context of the Brexit negotiations moving forward.

Access the full report here.

Access a summary and briefing of the report here.

[1] Namely the 1980 Hague Abduction Convention, the 1996 Hague Protection Convention and the 2007 Hague Maintenance Convention.

[2] For a recent account see Nigel Lowe, ‘What are the implications of the Brexit vote for the law on international child abduction?” (2017) 29(3) Child and Family Law Quarterly 253.

[3] See for example comments of Rebecca Bailey-Harris, House of Lords Justice Sub-committee evidence sessions: House of Lords Select Committee on the European Union, Justice Sub-Committee, ‘Corrected oral evidence: Brexit: civil justice cooperation and the CJEU’. (Evidence Session No. 2, 6 December 2016). Accessed 20 June 2017.