European Union (Withdrawal) Bill

Baroness Sherlock Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, in a debate full of marvellous speeches, I apologise in advance that mine is going to be boring. It is possible to be boring and very important at the same time—I know: I used to work in the Treasury. I am going to look at a specific area but, by the end, this may be a lens through which we can look at the Bill as a whole.

I want to look at family law and the law affecting families with kids. In doing so, I have been grateful for some wise and thoughtful briefing from various quarters, including the Children’s Society and the Brexit family law group. Family law has a major international dimension. There are about 140,000 international divorces and 1,800 cases of child abduction within the EU every year. The matters at stake cover divorce and maintenance, child contact and child protection, child abduction and the protection of victims of domestic violence and harassment.

Brexit and the way this Bill is crafted pose some real problems for this area. By importing EU family provisions into our law, this Bill does not change substantive law, but it maintains our obligations without any guarantee of the reciprocity necessary to make them work. The result is that the Bill shunts us into a one-way street where the UK is obliged to apply the current provisions, but the EU 27 will not have to do the same for us because we will have left.

Although there is no effect on our substantive law, EU family provisions affect our lives in various ways. Imagine a German man, Andreas, married to an English woman, Jane, living in Germany with their son, Thomas. They are affected in various ways. First, there is jurisdiction. Imagine that Andreas and Jane separate and Jane comes back to England and petitions for divorce in Birmingham, while Andreas petitions in Berlin. Thankfully, there is a mechanism to decide which court takes precedence, avoiding expensive parallel proceedings.

Secondly, there is enforcement. If Jane gets an order from an English court for maintenance and Andreas will not pay up, Jane can enforce the English order by applying directly to the court in Germany using her English court paperwork, or via the central authorities. If Jane also has a contact order from an English court when Andreas fails to return Thomas after a summer visit, the EU family law provisions provide enhanced and quicker mechanisms to get him back. England also gets the final say if, for any reason, Germany will not return Thomas. If Andreas then gets cross and starts harassing Jane, she can get an injunction against him in England which is automatically enforceable in Germany.

Thirdly, there is co-operation. The stress means Jane starts neglecting Thomas and a neighbour gets worried and alerts social services, at which point Jane disappears to Ireland. Fortunately, the rules on co-operation mean the two countries can readily share information.

What will happen to this admittedly rather unhappy family post Brexit? We will lose the rules that stop parallel divorce proceedings, so with Andreas and Jane both petitioning for divorce, if Andreas files first in Germany, under this Bill we have to stop proceedings here. But if Jane files first, Germany does not have to stop its proceedings. We could end up with simultaneous cases running in Birmingham and Berlin at vast expense, reaching contradictory decisions on maintenance and contact with no certainty about enforcement. Jane loses the enhanced provisions that would ensure the speedy return of Thomas if his dad keeps him in Germany, and our courts lose their final say but would have to respect it the other way round. Jane would have no ability to enforce any domestic violence injunction in Germany. She would have to raise separate litigation there, by herself if she cannot afford lawyers.

On the rare occasions this has even been touched on, Ministers like to say that there are alternatives. They cannot point to common law as here we are talking procedural not substantive law. They might cite existing conventions but there is no guarantee that they will apply. There is nothing in place of the domestic violence protection measures. There are no practical alternatives on divorce. With regard to maintenance and children cases, the relevant Hague conventions offer much weaker protection and narrower provision than we have now.

In short, our citizens would be disadvantaged by lesser provisions. We would have to apply the EU provisions in our law while the EU 27 would have to give our citizens only the secondary protection under the Hague conventions, if they are applicable at all. The Bill will create confusion as to which laws apply and when. Families will not know whether or when their orders can be enforced and disputes will be slower and more expensive.

What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike in other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.

Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.

I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.

It is not just trafficking. Noble Lords may remember the awful case of Northern Irish teenager Ronan Hughes—just one example of the international nature of many crimes against children. He killed himself when images he was lured into sharing online were sent to his friends when he would not pay a ransom. Last year his blackmailer was finally put away thanks to Europol.

These issues do not make headlines, but perhaps they should. Whatever the high politics of Brexit, children in the UK deserve protection and our citizens should be able to enforce our family law in Berlin as well as in Birmingham. That is what is at stake. I very much hope that the Minister will attend to it.