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No Deal Brexit Gen Family

Joanna Gardner explains that the Government has published an article explaining how family law cases would change if the UK leaves the EU with ‘no deal’

In the second of three articles she summarises the Government’s plans with respect to different areas of family law

Children and Financial orders (not maintenance) and Protection

Currently and up to 29 March 2019, the UK applies EU rules to determine:

  • which country's courts hear a case raising cross-border issues with other EU countries (jurisdiction)
  • which country's laws apply (applicable law)
  • how a judgment obtained in one EU country should be recognised and enforced in another (recognition and enforcement)
  • how cross-border legal procedural matters are handled (such as taking evidence in one country for use in proceedings in another).

Currently the key EU regulations are Brussels IIa (which covers jurisdictional rules in matrimonial and parental responsibility matters, the recognition and enforcement of related judgments and supplementary rules on child abduction)

The UK is already (unaffected by EU membership) a contracting state to a number of Hague Conventions on family law, which cover many of the same areas as the EU Regulations.

In future where this is the case, the government states that it would repeal the existing EU rules and switch to the relevant Hague Conventions. The relevant rules covered by the Hague Conventions are:

  • parental responsibility matters, including jurisdiction, recognition and enforcement
  • rules for the return of abducted or wrongfully retained children
  • central authority cooperation.

In child abduction cases, the UK's participation in the 1980 Hague Convention means that most of the measures it currently operates with EU countries would not change. The UK would however repeal the child abduction override provisions contained within Brussels IIa. These rules (which, in certain circumstances, allow an order from a court of an EU Member State to override an order made by another court not to return a child) are based on reciprocity and would no longer operate effectively if the UK leaves the EU with 'no deal'.

If the Hague Convention can’t be used then the Government intends to repeal the EU rules and proceed as follows:

All parts of the UK would unilaterally recognise incoming Civil Protection Measures from EU countries, to ensure that vulnerable individuals would continue to be protected.

The government would also propose to repeal the EU Service Regulation and the Taking of Evidence Regulation, which both rely on reciprocity to operate. However, it would apply the equivalent Hague Conventions in this area, to which the vast majority of EU countries are party. Finally, the UK government would seek to repeal the legislation implementing the Mediation Directive and the Legal Aid Directive.

Broadly speaking, cases ongoing on exit day will continue to proceed under the current rules. However, the government cannot guarantee that EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. Individuals with cases in progress on 29 March are encouraged to seek legal advice on how this may affect them.

The article is set out at:

If you have questions about any family matter that affects you then Joanna Gardner would be pleased to advise you. Her contact details are:

 or tel: 01905723561

Added: 11 Oct 2018 12:08

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