Maeve Sherlock on the need, post-Brexit, to ensure family law still works
The EU Withdrawal Bill has just begun Committee stage in the Lords – the time for Peers to look beneath the headline issues and focus, line by line, on the finer details of proposed legislation. And buried in this one are a range of issues which will affect British people in ways they aren’t expecting.
Take family law, which covers things like divorce and maintenance, child contact, protection and abduction, and domestic violence. There isn’t a common EU family law, as each state sets and keeps its own family laws. There are of course, agreements about jurisdiction, enforcement and cooperation. Just as well, given that annually there’s around 140,000 international divorces and 1,800 cases of child abduction within the EU.
After Brexit, the UK won’t be covered by the intra-EU agreements. The Bill before the Lords imports EU provisions into our law, but that just means that we would still have to recognise the orders of other EU states and enforce their decisions. They however, won’t have to do the same for us.
To illustrate, let’s imagine German Andreas marries English Jane and they have a son called Thomas. Sadly the marriage fails and Jane returns to England. She petitions for divorce in Birmingham and Andreas petitions in Berlin. Thankfully, there’s currently a mechanism to decide which court takes precedence, avoiding expensive parallel proceedings. Jane gets orders for maintenance from the English courts which can be enforced in Germany if Andreas doesn’t pay up.
But what happens after Brexit? If Andreas files first, under this Bill we have to stop the English court case. But if Jane files first, Germany is not obliged to stop its case. So there could be simultaneous court cases in Birmingham and Berlin at vast expense resulting in contradictory decisions on maintenance and contact with no certainty on enforcement.
Whilst there are other international family law conventions, so called ‘Hague Conventions’, that will hopefully help in some areas, there isn’t the same level of protection or efficiency as there is currently with the EU family law provisions.
In short, UK citizens will be disadvantaged. And this Bill, as it stands, will create confusion as to which laws apply and when.
So what are the alternatives?
Well, we could try to retain a fully reciprocal agreement with the EU, but that would almost certainly mean being bound by European Court decisions, which ministers reject. Although it is worth noting that unlike other areas of law, the European Court deals only with procedural questions, not with substantive family law. The Court can rule on questions of interpretation, or uncertainty about the wording relating to enforcement provisions. But it doesn’t instruct a country what its law should set about divorce, maintenance or child contact.
Alternatively, we could try to make our own deal with the EU with a new framework for family law co-operation – something that would be slow and difficult, and certainly not possible by 2019. Without a deal, we will be left with no reciprocal agreements covering divorce or domestic violence protection at all. The Hague Conventions offer less protection than we have now and there’s uncertainty about whether or when they would apply.
That’s why Labour has tabled probing amendments, supported by others from across the Lords, to highlight the issues around those Hague Conventions and the role of the European Court. The aim is to get ministers to give a clear outline of their future approach to family law.
Given the high politics of Brexit, this is unlikely to be the stuff of media headlines or rallies outside Parliament. But children deserve protection, whether it’s being returned promptly after they have been abducted or getting the right money for their food and accommodation. Our citizens should be able to enforce British family law orders in Berlin as well as in Birmingham. And they shouldn’t have to pay lawyers thousands of pounds – if they even have that sort of money to spare – to work out what type of law is applicable. All of this is at stake and time is running out.
Baroness Maeve Sherlock is Shadow DWP Minister in the House of Lords. She tweets @MaeveSherlock
This article first appeared on the PoliticsHome 'Central Lobby' blog