Brexit and Family Law: Where are we now?
Rebecca Bailey-Harris
Introduction
The UK has finally completed its exit from the European Union: it had been a long drawn -out process since the referendum result of 23 June 2016. The European Union (Withdrawal) Act 2018 was followed by the European Union (Withdrawal Agreement) Act 2020. The UK formally left the European Union at 23.00 on 31 January 2020. The transition period (subsequently euphemistically renamed the ‘implementation period’) ended on 31 December 2020. From 1 January 2021, family lawyers involved with European cross-border cases have to come to terms with a legal landscape markedly different from that which we have come to know over two decades under the Brussels Regulations. The challenge faces everyone involved in the family justice system. The aim of this paper is to provide an accessible overview of the new legal framework. More detailed analysis can be found in a number of excellent commentaries, a selection of which is given at the end of this paper.
We all recognise the importance to internationally mobile families of clear rules on jurisdiction and on recognition and enforcement of judgments. Regrettably, family law – and civil justice generally – was not included in the protracted negotiations on the future relationship between the UK and the EU. The Political Declaration and the EU’s negotiating directives listed judicial cooperation on family law as an area where ‘options should be explored’. However, the UK government chose to exclude matters of civil justice cooperation from the negotiations. The 1246 -page EU-UK Trade and Co-operation Agreement reached at the eleventh hour on 24 December 2020 contains not a single word on family law or on any other aspects of civil justice co-operation. Representations had been made to the Ministry of Justice on the desirability of negotiating a ‘bespoke’ arrangement for cross- border cases between the UK and EU Member States and similar views had been expressed at this conference in earlier years. All to no avail, at least to date. Whether future negotiations will be pursued remains to be seen. The EU Member States and the UK face challenges resulting from the pandemic and its human and economic consequences which may well eclipse future considerations of cross-border family law.
The legal landscape for cross-border family law cases after 1 January 2021 is in essence a complicated patchwork of provisions, some of international instruments and others of domestic law. It will be a challenge for us all come to terms with the new system in order to maintain the best service for families and caught up in international disputes.
Different rules for ‘transitional’ and for ‘new’ cases
An important distinction within the new system is that between ‘transitional’ and ‘new’ cases. The law will not change for cases already in the system by 31 December 2020: they will continue to be governed by EU law until they run their course, even if that takes years. Cases instituted on or before 31 December 2020 are governed by the transitional provisions in Articles 67 – 69 (in Title VI of Part 3) of the Withdrawal Agreement and s 41(4) of and Para 1 of Sched 5 to the European Union (Withdrawal Agreement) Act 2020. EU law will continue to apply to these cases, even if they are concluded by orders made in 2021 or even years later. So for ‘transitional’ family law cases, Council Regulation (EC) 2201/2003 (‘Brussels IIA’ for divorce and other forms of principal relief and children matters) and Council Regulation (EC) No 4/2009 (’the Maintenance Regulation’) continue to apply as they did before the finalisation of Brexit. If a transitional case involves competing proceedings between the UK and an EU Member State, the ‘first in time’ rule in Art 19 of Brussels II and Arts 12 and 13 of the Maintenance Regulation will continue to apply. Reciprocal recognition and enforcement provisions in those Regulations will continue to be available for many years to come for proceedings already commenced. For transitional cases, the case law of the Court of Justice of the European Union will continue to determine the interpretation in the Council Regulations of terms such as ‘habitual residence’ and ‘same’ or ‘related’ cause of action. The Lugano Convention 2007 will also continue to apply for transitional cases between the UK as a former EU Member State and the non-EU signatories that Convention: Switzerland, Norway and Iceland. The Lugano Convention is addressed further below.
For new cases, from 1 January 2021 the Brussels Regulations are revoked by Part 2 of the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/ 519) as amended by reg 5 of the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (SI 2020/1574). In their place, various international instruments of the Hague Conference on Private International Law, to which the UK and the EU are signatories, will apply. The UK was a signatory to the Hague Conventions by virtue of its EU membership and the operation of the Hague Conventions was suspended within the EU when an EU Council Regulation covered the same field as a Hague Convention. Now the UK has left the EU it is a signatory to Hague Conventions in its own right and those Conventions are once more in operation. The relevant Hague Convention rules take precedence over the domestic jurisdiction rules in cases that properly fall under the relevant Hague Conventions. However, the Hague Conventions do not constitute a comprehensive replacement for the Brussels Regulations. There are significant gaps in their content and coverage and in the Member States between which they apply. Where a Hague Convention does not apply, jurisdiction, recognition and enforcement in cross-border cases will be governed by the domestic private international law rules of the countries involved. That domestic law is found in both primary legislation (statutes) and secondary legislation (statutory instruments). Important substantive reforms for cross-border family law cases after Brexit in the component parts of the UK have been enacted by statutory instrument – a form of law-making which does not (to say the least) enjoy the degree of democratic debate accorded to primary legislation. The key statutory instruments for family law purposes are SI 2019/519 (referred to above), amended by the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations (No 2) 2019, No 836 (SI 2019/836) and the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020, No 1574 (SI 2020/1574).
As to international instruments, the UK’s future position in respect of the Lugano Convention 2007 remains unresolved at the start of 2021. The Lugano Convention resembles the old ‘Brussels I’ Regulation (Council Regulation (EC) 44/2001) and is a Convention dealing with jurisdiction, recognition and enforcement in civil and commercial matters, but with special provisions on family maintenance. The parties are the EU and Norway, Iceland and Switzerland. Up until 31 December 2020 the UK had membership of Lugano in its capacity as an EU Member State. Lugano can potentially play a significant role in filling the gap left by revoking the EU Maintenance Regulation, albeit that it would not be a complete replacement. Whether the UK will re-join Lugano is a political matter which was not dealt with in the Trade Agreement. The UK applied to be an independent member of the Lugano Convention in April 2020. Norway, Iceland and Switzerland are in favour, but the EU and Denmark have yet to agree. If they do, there will still be a time lag before the UK becomes a party.
The following discussion outlines the provisions which will apply to ‘new’ cross-border cases, i.e. those in which proceedings are instituted after 1 January 2021. The principal focus is on divorce and financial proceedings.
Divorce
The international instrument in operation is the Hague Convention of 1970 on the Recognition of Divorces and Legal Separations. Its aim is clear from the title: to facilitate reciprocal recognition of divorces and legal separations between signatory states. A problem of scope immediately surfaces: the 20 signatories worldwide include the UK but currently only 12 EU Member States: Cyprus, Czech Republic, Denmark, Estonia, Finland, Luxembourg, Netherlands, Poland, Portugal and Sweden. So our nearest geographical neighbours Ireland and France are excluded from the Convention’s provisions for reciprocal recognition. Moreover, the Hague Convention 1970 does not cover civil partnerships or nullity proceedings.
Jurisdiction
Unlike Brussels IIA (Art 3), the Hague Convention 2007 does not provide rules on jurisdiction: it is all about reciprocal recognition. Accordingly, jurisdictional rules are matters for the domestic law of each state, even when the state is a party to the Hague Convention.
In England and Wales and in NI, the jurisdictional rules applying from 1 January 2021 are found in s 5(2) of the Domicile and Matrimonial Proceedings Act 1973, as amended by the Schedule to the all-important SI 2019/519.
The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)—
(a) both parties to the marriage are habitually resident in England and Wales;
(b) both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
(c) the respondent is habitually resident in England and Wales;
(d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
(e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
(f) both parties to the marriage are domiciled in England and Wales; or
(g) either of the parties to the marriage is domiciled in England and Wales.
At first glance this may appear very similar to Art 3 of Brussels IIA, with the omission relating to a joint petition (as not applicable) and with the addition of sole domicile (formerly only the ‘residual’ jurisdiction). But a closer look at the wording of (d) and (e) reveals a significant difference. Was a change intended by the draftsperson?
The equivalent provisions in Art 3 of Brussels IIA read as follows:
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question
An unresolved issue on the interpretation of these indents of Art 3 goes to the nature and strength of the connecting factor between the petitioner and the country in which he or she seeks to obtain a divorce etc. Is there a distinction between ‘habitual residence’ and ‘residence’, the latter being a less demanding concept? There are conflicting interpretations in case law at first instance: Marinos v Marinos [2007] 2 FLR 1018, Munro v Munro [2008] 1 FLR 1613, Pierburg v Pierburg [2019] 2 FLR 527. The Court of Appeal in Tan v Choy [2015] 1 FLR 492 did not consider it necessary to decide the point on the facts, but Aikens LJ in obiter dicta in para [30] put forward no less than three possible interpretations:
I would accept that there could be legitimate debate as to what is the precise construction of Art 3(1)(a) indent five of BIIR. It seems to me that there are (at least) three possible constructions. First, it could mean that the person seeking to found jurisdiction has to be 'habitually resident' in the territory concerned at the date the proceedings are started and he also has to have 'resided' there for at least a year before the relevant proceedings are started. Secondly, it could mean that the person seeking to found jurisdiction has simply to have been 'habitually resident' for one year prior to the start of the proceedings. Thirdly, it could mean that the person seeking to found jurisdiction has to establish that he/she is 'habitually resident' at the time the proceedings are started and that this fact is proved by establishing that he/she has 'resided' in that territory for at least a year immediately before the proceedings were started ('… application was made').
There is as yet no CJEU decision determining the issue.
The wording of the amended DMPA s 5(2)(d) and (e) seems to make clear that the issue has been resolved by requiring the petitioner to be habitually resident on the day the petition is issued but (merely) resident for the specified preceding period. This is the view taken in Resolution’s Guide to International Family Law and the Joint Resolution and Law Society Note to family lawyers in England and Wales ahead of the end of the Brexit transition period (November 2020). However, it does not appear that the Government intended any change from Art 3 of Brussels IIA. The Explanatory Memorandum to SI 2019/519 states at 7.7:
For divorce etc jurisdiction, this instruments revokes (for England and Wales and (Northern Ireland)Brussels IIa and replicates the rules for establishing divorce jurisdiction set out in Article 3 of Brussels IIA, with the appropriate drafting changes necessary to account for the UK no longer being a member of the EU, including omitting the Brussels IIa joint application rule, which is not applicable because joint application for divorce by both parties is not available in England and Wales and Northern Ireland (emphasis supplied)
The GOV.UK Guidance on family law disputes: guidance for legal professionals from 1 January 2021 simply says:
For cases starting after the end of the Transition Period, new jurisdictional rules for the court in England and Wales which are based on the applicable Brussels IIa rules have been inserted into section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations (emphasis supplied).
If this issue is explored in cases to come, it may well be of great interest to lawyers but costly to their clients. It also raises questions about the appropriateness of legislating by statutory instrument.
Will the interpretation of ‘habitual residence’ change now that the UK has left the EU and courts are no longer bound to follow the case law of the CJEU? For the purposes of Art 3 of Brussels IIA the concept of a person’s ‘centre of interests’ was adopted. This involved not a purely quantitative evaluation of the time spent by a person in a particular place but insteadaqualitative evaluation of all the facts pertaining to an individual’s links with a place. An individual can have only one centre of interests under EU law. It remains to be seen whether the domestic law of the UK jurisdiction will revert in time to the domestic law concept of habitual residence found in Ikimi v Ikimi [2001] Fam 72 – a far more quantitative approach. The potential divergence from the law applied in EU states would cause problems in relation both to seising jurisdiction and to recognition of divorces etc.
The addition of sole domicile as a ground of jurisdiction (formerly only a ‘residual jurisdiction) in DMPA 1973 s 5(2)(g) makes it easier to seise jurisdiction in England and Wales and Northern Ireland than it was before. However, caution is required in use of this ground: a divorce based on sole domicile may face difficulties in obtaining recognition in an EU Member States (and elsewhere in the world).
Scotland has demonstrated its independent spirit by adopting different and simpler rules for post- Brexit jurisdiction in divorce etc. The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc) Regulations 2019 (SSI 2019/104) amends ss 7 and 8 of the Domicile and Matrimonial Proceedings Act 1973 to give jurisdiction where:
either of the parties to the marriage—
- is domiciled in Scotland on the date when the action is begun, or
- was habitually resident in Scotland throughout the period of one year ending with that date
There is an additional requirement for the Sheriff Court of 40 days residence in the Sheriffdom. The Scottish Government has indicated that these grounds may be reviewed in the future.
Parallel/Competing Proceedings
Where there are competing/parallel proceedings for divorce etc instituted in the UK and in an EU Member State from 1 January 2021, the rule of priority to the court first seised in Art 19 of Brussels IIA is replaced by the system of discretionary stay on principles forum conveniens: see para 9 of Sched 1 to the Domicile and Matrimonial Proceedings Act 1973 as amended by the Schedule to SI 2019/519. The power to stay is exercised according to the principles in Spiliada Maritime Corporation v Cansulex [1997] AC 460 and De Dampiere v De Dampiere [1988] AC 92. The ‘first past the post’ rule in Brussels IIA was criticised by some for encouraging a race to court, but it had the great merit of simplicity and was founded in mutual respect and comity between EU Member States. The forum conveniens system has the weakness of any discretionary system: unpredictability. It will mean more lengthy litigation and expense for clients where proceedings are commenced in a UK jurisdiction and in an EU Member State.
Recognition of divorces etc
What replaces the virtually automatic recognition of UK divorces by EU Member States under Chapter III pf Brussels IIA? The international instrument is the Hague Convention 2007. The recognition rules are found in Articles 2 and 3:
Article 2
Such divorces and legal separations shall be recognised in all other Contracting States, subject to the remaining terms of this Convention, if, at the date of the institution of the proceedings in the State of the divorce or legal separation (hereinafter called "the State of origin") –
(1) the respondent had his habitual residence there; or
(2) the petitioner had his habitual residence there and one of the following further conditions was fulfilled –
a) such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;
b) the spouses last habitually resided there together; or
(3) both spouses were nationals of that State; or
(4) the petitioner was a national of that State and one of the following further conditions was fulfilled-
a) the petitioner had his habitual residence there; or
b) he had habitually resided there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings; or
(5) the petitioner for divorce was a national of that State and both the following further conditions were fulfilled –
a) the petitioner was present in that State at the date of institution of the proceedings and b) the spouses last habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce.
Article 3
Where the State of origin uses the concept of domicile as a test of jurisdiction in matters of divorce or legal separation, the expression "habitual residence" in Article 2 shall be deemed to include domicile as the term is used in that State. Nevertheless, the preceding paragraph shall not apply to the domicile of dependence of a wife.
These reciprocal recognition rules apply between the UK and the thirteen EU Member States which are signatories to the Convention. For the rest, recognition will depend on the domestic law of the states concerned, i.e. their domestic rules of private international law. In the UK the domestic recognition rules are those contained in ss 46 – 51 of the Family Law Act 1986.
Financial proceedings
The EU Maintenance Regulation is revoked from 1 January 2021. What replaces it for maintenance cases involving a UK jurisdiction and an EU Member State?
The international instrument is the Hague Convention of 2007 on the International Recovery of Child Support and other Forms of Family Maintenance. The UK ratified the 2007 Hague Maintenance Convention on 28 December 2018 and is a signatory in its own right from 1 January 2021. The EU is amongst the other parties worldwide.
Jurisdiction
The primary focus of this Hague Convention is the recognition and enforcement of maintenance orders. It does not contain provisions on jurisdiction to replace those in Chapter II of the Maintenance Regulation, save for Art 18 which is to the same effect as Art 8 of the Maintenance Regulation. If an order is made is a State where the maintenance creditor (payee) is still habitually resident, the maintenance debtor (payor) cannot apply in another Member State to vary the order. The policy is to protect the maintenance creditor as the financially weaker party.
Jurisdiction in matters of maintenance are therefore post- Brexit very largely governed by domestic law. The position is complicated in that are different rules for different kinds of maintenance claims – e.g. those in financial remedy proceedings in divorce, those under Sched 1 to the Children Act 1989 and those in a claim following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984. The details of the different jurisdictional rules for different types of maintenance claim are found in the amendments to the various statutes effected by the Schedule to SI 2019/519 and by SI 2019/836, as amended by the Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2020. The amendments mainly restore the position which existed under domestic law prior to the Brussels Regulations coming into operation, while taking account of the operation of the Hague Conventions. Judges and practitioners must familiarise themselves with the details of these new jurisdictional provisions. There appears to be a lacuna in respect of applications for variation of maintenance orders under s 31 of the Matrimonial Causes Act 1973.
Practitioners have been very familiar with the practical effect of Art 3(c) of the Maintenance Regulation, which denies jurisdiction over maintenance claims ancillary to divorce where divorce jurisdiction is based on sole domicile. This restriction disappears with the revocation of the Maintenance Regulation.
Art 7 of the Maintenance Regulation provides for a forum necessitatis jurisdiction on an exceptional basis where no court of a Member State has jurisdiction on another ground. This ground has been useful for obtaining a pension sharing order in respect of an English pension when parties divorce overseas but cannot not meet the jurisdictional grounds in s 15 of Part III of the Domicile and Matrimonial Proceedings Act 1984. It is no longer available from 1 January 2021.
Choice of Court Agreements
Until 31 December 2020, spouses could make (subject to certain conditions) an exclusive choice of jurisdiction/court agreement under Art 4 of the Maintenance Regulation and (where applicable) under Art 23 of the Lugano Convention 2007. This is not possible from 1 January 2021. However, the courts in England and Wales will continue to recognise a choice of court agreement made before 23.00 on 31 December 2020 under Art 4 of the Maintenance Regulations, even when legal proceedings are issued (long) after that date. This is the effect of Reg 8(2)(b) of SI 2019/519 as amended by Reg 5 of SI 2020/1574, which provides that the revocation of the EU Maintenance Regulation will not apply to proceedings before a court seised, whether before or after IP completion day, in reliance upon a choice of court agreement concluded before IP completion day in accordance with Article 4 of Council Regulation No. 4/2009 . However, EU Member States do not appear committed to recognise such choice of court agreements after 1 January 2021. Art 3.3 of the EU Notice to Stakeholders 2020 states that ‘proceedings instituted, based on a choice of court agreement, in thein the UK courts after the end of the transition period…no longer benefit from EU rules on recognition and enforcement in EU Member States’.
Competing/Parallel proceedings
The ‘first in time’ rule in Arts 12 and 13 of the Maintenance Regulation no longer apply in the UK jurisdictions. There is now the discretionary power for a court to stay a maintenance application on forum conveniens grounds. However, EU Member States will continue to apply the first in time rule. In essence, the two countries involved will apply different rules on stay. The forum conveniens approach will take longer to determine – so in practice will the ‘race ‘be lost anyway?
Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484) in paras 12 and 13 applied Arts 12 and 13 of the Maintenance Regulation (lis pendens and related proceedings) as between the component parts of the UK. In Villiers v Villiers [2020] UKSC 30 [2020] 2 FLR 917 the spouses married in England in 1994. They lived in Scotland between 1995 and 2012, when they separated and the wife returned to England. The husband applied for a divorce in Scotland in 2014; no maintenance application was involved there. In 2015 the wife applied in England for periodical payments and a lump sum under s 27 of the Matrimonial Causes Act 1973. The husband unsuccessfully applied for a stay or dismissal of her application (Villiers v Villiers [2018] EWCA Civ 1120) and was given leave to appeal. The Supreme Court by a majority dismissed the appeal, holding inter alia that the husband’s divorce proceeding in Scotland was not a ‘related action’ within Art 13 of the Maintenance Regulation and that the English court had no power to decline jurisdiction in relation to the wife’s maintenance claim. The Villiers situation does not survive beyond 1 January 2021. The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/519) (as amended by Sch 5 para 1 to the European Union (Withdrawal Agreement) Act 2020) reg 4 revokes the Maintenance Regulation for the purposes of domestic law and para 38(8) of the Schedule to the Regulations omit Sch 6 from the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011. However, the court will have a power to stay on forum conveniens grounds.
Recognition and reciprocal enforcement of maintenance orders
This is a relatively unproblematical area. The EU is a signatory to the 2007 Hague Maintenance Convention 2007 and so reciprocal enforcement of a UK maintenance order is available in an EU Member State. The Convention operates the two-stage process of registration before enforcement for all countries.
The Hague Convention applies to child support cases. Applications for recognition and enforcement of spousal support when made with a claim for child support also come within the core scope of the Convention and all its provisions extend to them. Other claims for the recognition and enforcement of spousal support (when not made in conjunction with a claim for child support) come within the compulsory scope of the Convention, but do not benefit from the provisions of Chapters II and III which establish the system of administrative co-operation via Central Authorities and which also contain provisions for assistance in child support cases. Most applications for child support are processed through the Central Authorities, whose primary role is to transmit and receive applications and to initiate the institution of proceedings. Other functions include assistance in locating a debtor or creditor or obtaining information about their resources of either and encouraging amicable solutions with a view to voluntary payment.
The bases for recognising and enforcing maintenance decisions in another Contracting State as found in Art 20 of the Convention are broad:
20 (1) A decision made in one Contracting State (“the State of origin”) shall be recognised and enforced in other Contracting States if -
a) the respondent was habitually resident in the State of origin at the time proceedings were instituted;
b) the respondent has submitted to the jurisdiction either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity;
c) the creditor was habitually resident in the State of origin at the time proceedings were instituted;
d) the child for whom maintenance was ordered was habitually resident in the State of origin at the time proceedings were instituted, provided that the respondent has lived with the child in that State or has resided in that State and provided support for the child there;
e) except in disputes relating to maintenance obligations in respect of children, there has been agreement to the jurisdiction in writing by the parties; or
f) the decision was made by an authority exercising jurisdiction on a matter of personal status or parental responsibility, unless that jurisdiction was based solely on the nationality of one of the parties.
The habitual residence of either the respondent or the creditor in the State of origin are likely to be the most commonly used jurisdictional grounds in practice. Art 22 contains grounds on which recognition and enforcement can be refused. These are similar to those in Art 24 of the Maintenance Regulation for reciprocal enforcement of orders made in non-Hague Protocol States, i.e. the UK and Denmark.
The Lugano Convention 2007 and Maintenance
As highlighted above, the UK’s application to re-join Lugano as an independent member has not yet been determined. For family layers (and for all civil and commercial lawyers), re-joining Lugano has distinct advantages. It would apply between the UK and the EU as well as Iceland, Norway and Switzerland. The provisions of the Lugano Convention 2007 (modelled on the old Brussels I /Council Regulation (EC) No 44/20001) are comprehensive and cover the fields of jurisdiction, recognition and enforcement. The general rule of jurisdiction is found in Art 2.1:
Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.
‘Domicile’ in the Lugano Convention does not mean common law domicile as known in UK and Irish law, but is something akin to habitual residence: see s 41A of the Civil Jurisdiction and Judgments Act 1982 as amended. Article 5 contains special jurisdiction rules in a number of subject areas. One is maintenance:
A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued:
2. In matters relating to maintenance:
(a) in the courts for the place where the maintenance creditor is domiciled or habitually resident; or
(b)in the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; or
(c)in the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;
Prorogation (choice of court) is permitted by Art 23. The first in time rule for lis pendens and related actions is contained in Arts 27 and 28. Recognition and enforcement of orders is governed by Title III. If the UK re-joins Lugano in its own right, there will be a question of the relationship with the 2007 Hague Maintenance Convention: as a matter of international law, which instrument takes priority where their provisions cover the same fields?
Private and Public Law Children Cases
For transitional cases, Brussels IIA continues to regulate the rules on jurisdiction and recognition and enforcement of orders in matters of parental responsibility. The Regulation enables transfer of jurisdiction from one Member State better suited to deal with the case: Art 15. For new children cases from 1 January 2001, the international instrument is the Hague Convention of 1996 on Jurisdiction, Applicable Law, Recognition and Enforcement in Respect of Parental Responsibility and Measures for the Protection of Children. The 1996 Hague Convention covers jurisdiction in Arts 5 – 10, which closely resemble those of Brussels IIA (which was based for children matters on the Hague Convention). The general jurisdictional rule is the child’s habitual residence. There is provision in Arts 8 and 9 for transfer of proceedings between contracting states. The lis pendens rule is found in Art 13. The 1996 Hague Convention also governs applicable law (domestic law as the lex fori save in exceptional circumstances) and reciprocal recognition and enforcement of orders. There is cooperation and collaboration through Central Authorities.
Child Abduction
New child abduction cases after 1 January 2021 are governed by the Hague Convention of 1980 on the Civil Aspects of International Child Abduction 1980 and the Child Abduction and Custody Act 1985. New cases will lose the benefit of the supplementary provisions of Brussels IIA which offer additional protection to children, for example by ensuring expedition of proceedings (Arts 11(3)) and that the child’s voice is heard (Art 11(2)).
Conclusion
Family lawyers whatever their roles are committed to doing the best for couples and their children. Many family law cases have a cross-border dimension. Twenty years ago we had to begin to familiarise ourselves with the Brussels Regulations in order to do the best for our clients. Now we face another steep learning curve in order to deal with cases involving the UK and the remaining EU Member States. We need to know the Hague Conventions, what they cover and to which States they apply. Later in the year we may need to study the Lugano Convention. We need to identify the gaps in the international instruments and to know the domestic rules of private international law which then apply. Bon courage a tous et a toutes!
Resources
Joint Resolution and Law Society Note to family lawyers in England and Wales ahead of the Brexit transition period, November 2020
GOV.UK Family law disputes involving the EU; guidance for legal professionals, 31 December 2020
Resolution Guide to International Family Law, updated December 2020
David Hodson The Lugano Convention: the UK’s European maintenance law from 2021? [2020] International Family Law Journal 211 - 224