Legal Update: Brexit and the Brussels IIa regulation

In March, the House of Lords European Union committee published a report considering the ramifications of Brexit for the EU's programme of civil and justice co-operation introduced by the three Regulations - the Brussels I (recast), the Brussels IIa and the Maintenance Regulations. These collectively form the so-called "Brussels regime", which applies when a legal dispute has a cross-border element. The committee, unable to discern a clear plan as to how the continued post-Brexit operation of these regulations will be secured, expressed concern for "those families that rely on their provisions… [and] our family court system".

The Brussels IIa Regulation

The Brussels IIa Regulation (BIIa) addresses divorce, legal separation, marriage annulment, and parental responsibility including rights of custody, access, guardianship, and placement in a foster family or institutional care. It sets out:

• Rules determining which court [i.e. which EU member state] is responsible in disputes involving more than one country
• Rules making it easier to recognise and enforce judgments issued in one EU country in another
• A procedure to settle cases in which a parent abducts a child from one EU country and takes them to another.

These rules bring important clarity to the complexities of cross-border family relations.

BIIa provides that the most appropriate forum for matters of parental responsibility is the relevant court of the member state where the child is habitually resident. Judgments given in one member state must then be recognised and enforced in any other, unless:

• This would be manifestly contrary to the state's public policy
• The child or person claiming an infringement of their parental responsibility was not given an opportunity to be heard
• The judgment was given in the absence of a person not served with the documents in a timely and appropriate way.

The Hague Convention

Brussels IIa supplements certain provisions of the Hague Convention on International Child Abduction of 25 October 1980. The Hague Convention sets out rules to ensure effective international co-operation in child protection matters, including rules for determining which country's laws are to be applied, and provides for the recognition and enforcement of measures taken in one country in all other countries that have ratified the convention. Among other matters, the convention addresses custody and contract disputes, the treatment of unaccompanied children, care of children across frontiers, and information exchange and collaboration between national child protection authorities in different states. The convention places primary responsibility on the authorities of the country where the child has their habitual residence, but also allows any country where the child is present to take necessary emergency or provisional measures of protection.

All EU member states have ratified the convention, but within the EU the BIIa takes precedence. While the Hague Convention would continue to apply in the UK after Brexit, the additional measures and safeguards provided by Brussels IIa would no longer apply.

The future after Brexit

There is currently no clear roadmap for the continued post-Brexit operation of BIIa. If the UK joins the European Economic Area, it could also decide to join the Lugano Convention, which similarly dictates recognition and enforcement of judgments in civil matters, and would therefore be under a regime similar to Brussels IIa. If not, it would remain a party to the Hague Convention, but it might be difficult to achieve the same level of co-operation on jurisdiction and enforcement which exists at EU level. It can only be hoped that the international safeguarding of children will continue to be prioritised and that children's rights will be upheld.

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Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com

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