Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Tuesday 29th January 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I turn to two further draft instruments that form part of the preparations for a no-deal exit. They are, as before, concerned solely with no-deal preparations. The Joint Committee on Statutory Instruments has reviewed these SIs and has no substantive comments to make about them.

I have already referred to, so shall not return to, the terms of the technical notice published on 13 September 2018 that covered these issues as well. I should say that prior to the publication of that notice my officials met on several occasions with key family law stake- holders, including leading family law practitioners and representative bodies, to ensure that our policy proposals provide certainty for citizens, legal practitioners and the court system in so as far as is appropriate as we transition to a post-exit arrangement in the event of no deal. That engagement has continued alongside the development of the instruments that we are discussing today, which are designed to implement the policy outlined in the technical notice of 13 September last year. I will come on to comment on a number of points that will arise concerning a further instrument in connection with some of the somewhat technical issues here, which I will endeavour to deal with as shortly as I can.

The first regulations we are considering in this debate are the draft Jurisdiction and Judgments (Family) (EU Exit) (Amendment etc.) Regulations 2019. These make changes to the current EU rules governing cross-border family law disputes that involve courts in the UK and EU member states. Again, the instrument remedies deficiencies that would arise from retaining these EU rules in the event of us exiting without a deal.

The second set of regulations are the draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) Regulations 2019 which amend rules governing the jurisdiction and recognition of orders in relation to the dissolution of civil partnerships and divorce of same-sex married couples, which currently correspond to the EU rules. The effect of these regulations is that the rules relating to the dissolution of civil partnerships and the divorce of same-sex married couples will instead correspond to those for the divorce of opposite-sex married couples made by the first set of regulations—namely, the first instrument that I refer to. In other words, we are concerned to ensure that all these parties remain aligned.

It may be helpful if I outline the existing EU rules in this area. There are two applicable EU regulations: Brussels IIa, as distinct from Brussels Ia, and the maintenance regulation of 2009. The Brussels IIa regulation provides rules to determine, in cases where those involved come from or live in more than one member state, which court has jurisdiction—that is to say, has the right to hear a case—in relation to divorce and matrimonial disputes; matters of parental responsibility such as disputes between parents as to residence of and contact with their child; or care proceedings. It also provides rules for recognition, and enforcement where necessary, of a judgment from one member state in any of the others.

This includes a provision supplementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction. That provision empowers the court of the EU member state of the child’s habitual residence to make an order requiring the child’s return to that state even if an order has been made by the member state to which the child was taken or in which the child was retained, that the child should not be returned. The regulation also provides rules on the availability of legal aid in these cases and for co-operation between central authorities in EU member states. As far as jurisdiction and recognition and enforcement of judgments in matters relating to parental responsibility is concerned, the Brussels IIa regulation covers similar ground to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, to which I will turn later.

The second applicable EU regulation, the maintenance regulation, sets out in a similar manner to Brussels IIa the rules governing which EU member state court has jurisdiction in cross-border cases concerning family maintenance, together with rules governing the recognition and enforcement of decisions in these cases and provision about legal aid and central authority co-operation. This covers similar ground to another Hague convention: the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It is interesting to note that many regulations of the Brussels regime developed from Hague convention provisions. Like the 2005 convention, the 2007 convention was signed by the EU on behalf of all member states; again, we have taken steps to apply to become an individual state signatory to the 2007 convention. That application has been accepted already; on exit, we anticipate that in the absence of a no-deal exit, we will be a party to that convention from 1 April 2019.

Should the UK leave the EU without an agreement covering these matters, the Brussels IIa and maintenance regulations will no longer operate between the UK and EU member states since these regulations rely on reciprocal action between member states. Even if the UK were to purport to apply these rules after exit, the UK’s status as a third country would mean that the regulations as they bind the EU member states would not apply to the UK. For example, EU member states would not be bound to afford recognition or enforcement under the regulations to decisions of courts in the UK. Retained provisions of the regulation would also overlap with the Hague convention provisions to which I have referred; that in turn would be liable to create confusion and potentially undermine the operation of those conventions because people would be left in doubt over which regime they should have regard to or recourse to in such circumstances. It is this deficiency in retained EU law, which would otherwise remain on the statute book, that we seek to remedy.

The principal means of addressing this deficiency is to revoke the Brussels IIa and maintenance regulations, subject to transitional arrangements for cases that are in train on exit day; there would be recognition for those cases for transitional purposes. However, they will be removed, as they form part of retained EU law, by the jurisdiction and judgments regulations. As I touched on earlier, this will not, however, leave us without rules or international co-operation in these areas. The UK is already a contracting state to a number of Hague conventions in the field of family law which cover many of the same areas as the Brussels IIa and maintenance regulations. In particular, I would mention the 1996 Hague convention, which covers similar ground in respect of jurisdiction, recognition and enforcement of judgments and co-operation between authorities as the Brussels IIa regulation; all EU member states are bound by that 1996 Hague convention. The UK is already a contracting state to that convention, so it will apply upon exit with no deal.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I do not propose to address the same matters of detail that the noble Lord, Lord Beecham, has done. I said a great deal of what I wanted to say about the general impact on judicial co-operation and co-operation in legal matters in the debate on the first of these statutory instruments. But let the Minister and the Government be in no doubt that the issue of co-operation in family justice, and the replacement of the system we have now by the bitty and only partial system he has outlined, is the substitution of a much less satisfactory and much less smooth step backwards—which is to be deplored—from the extremely well-respected and widely understood system that we have now across the European Union.

The noble Lord, Lord Beecham, mentioned 16 million cross-border family disputes. The European Parliament estimates that 10% of European citizens are married to people of a different citizenship, and a very large number of those are married to other European citizens. I am one of them; many in your Lordships’ House and the other place are also married to other EU citizens. Even Nigel Farage is—or was—married to an EU citizen of another state.

We have a system now that works well and is widely respected across the whole gamut of domestic law. Jurisdiction is the area where I think there has been the most difficulty because the first court is the place of jurisdiction in divorce rulings, which was difficult to accept but is now widely understood. Recognition and enforcement are absolutely crucial. Going back to the Hague rules will be unhelpful by comparison with what we have now. The system of child abduction goes back to the Hague convention of 1980. Yes, it was there but the override that we have under Brussels IIa makes the system work far better, far more effectively, far more cheaply and with far more co-operation.

Judicial co-operation across the European Union has generally been helpful and beneficial and we have all gained immeasurably from the co-operation across different jurisdictions. Legal aid is available in respect of cross-border disputes within the European Union, which will not be available after we leave it. The new arrangements for the maintenance regulations are absolutely hopeless compared with what we currently enjoy for intra-European disputes, as anybody who is involved with divorces between, for instance, UK and US or other third-country litigants well knows.

I entirely accept the Government’s argument that we simply could not insist on losing reciprocity and nevertheless maintain unilateral arrangements in the case of these convention advantages, the reason being that we would put UK citizens at severe disadvantages when their relationships with other EU citizens broke down. Nevertheless, the Minister and the Government should not rest on the consultation that they have had by discussion with some family lawyers. The Government should be in no doubt that family lawyers generally deplore the loss of the European regime, which is what would face us if we went through with a no-deal exit.

The Explanatory Memorandum produced by the Government is in similar terms to, and shares the faults of, that in respect of civil and commercial cases. It says at paragraph 12.2 on page 6:

“In the event of a no deal EU Exit, the impact on business, charities or voluntary bodies (being those that advise, represent and support individuals and families engaged in cross-border family law matters) of this instrument will, on balance, be positive. The amendments provide a basis for continued reciprocal cooperation with most EU Member States through the UK’s participation with those Member States”.


It then goes through the Hague conventions that will be available. That is a comparison with the prospect that we would enjoy if we had no statutory instrument to cover this position. The Explanatory Memorandum faces reality later on in that paragraph, where it says:

“However, the change to Hague Convention rules and the new domestic rules on divorce etc jurisdiction, maintenance jurisdiction and parental responsibility legal aid will require relevant businesses, charities and voluntary bodies to familiarise themselves and adjust their administrative arrangements to deal with the new rules. In some cases (especially divorce etc jurisdiction) the new rules could lead to greater disputation and complexity”.


Greater disputation and complexity always means greater cost. In family cases it is greater stress, unhappiness and mental health issues, and severe damage to children. One sees in so many of these cross-border cases the added damage to children, even with the present benign arrangements, because their parents are in different jurisdictions. The Explanatory Memorandum goes on:

“In the event of a no deal EU Exit, the impact on the public sector is expected to be an increase in case volume and complexity of cases before the family court due to the changes in divorce and maintenance jurisdiction rules. However, this instrument will have positive impacts on the family court as it ensures there will be workable rules governing cross-border family law disputes”.


Once again, this is confusing the two issues. Yes, there will be workable rules and, yes, that is better than no rules at all, but it is far worse than what we have now.

Of course, I accept the other statutory instrument that same-sex marriage and civil partnerships should be put on the same basis as opposite-sex relationships, but we are once again facing a situation where it is my view—and, I suggest, a view that ought to be taken seriously by the Government—that the loss of co-operation in family law and relationship law generally would be very serious, and that those prepared to countenance no deal should take that into consideration far more than they do at present. I know that the noble and learned Lord and the noble Baroness, Lady Vere, take these matters seriously. I wish other members of the Government would do the same.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. I reiterate what the relevant comparators are for impact assessments in consideration of these instruments. This Parliament determined to make a law by reason of which we leave the EU on 29 March 2019. The Executive not only have to respect that law, as made by this Parliament, but have to make appropriate plans and arrangements to allow for that in the event that no withdrawal agreement is in place as at 29 March. So, with respect to the noble Lord, Lord Marks, we are carrying out a relevant comparison within the impact assessments in that context.

I will not gainsay the comments about the benefits we have enjoyed from the Brussels regime, whether in the context of divorce, maintenance, child abduction or the wider issues we have already discussed today of commercial and civil cases. We have all benefited from that regime, but we cease to be a party to it because this Parliament has made a law determining that that would be the consequence on 29 March 2019.

On the issues of family law, fortunately we have, in essence, the foundations for all that we find in Brussels IIa. We have the 1970 Hague convention on recognition of divorce and separation and the 1980 Hague convention on child abduction. The noble Lord, Lord Marks, is quite right that it does not contain the override, but then it cannot because we will not be in a position to make an order overriding an order of an EU state court when we have left the EU. We simply cannot do that unilaterally, so we have to accept that. We have the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in family matters. In the context of maintenance, we have the 2007 Hague convention. All of that will be in place and, as I indicated earlier, we are also applying to be a party to the Lugano Convention, although my understanding is that the Lugano Convention is on civil and commercial rather than family matters. Nevertheless, we are taking all the steps we can at this stage to cover all bases.

On the question of future co-operation, the political declaration refers to the intention to negotiate these matters, but it takes two to tango—as is sometimes observed—and therefore the pace at which we can negotiate these issues is dictated not only by us but by the EU, and we have to take that on board.

The noble Lord, Lord Beecham, referred to the European protection order. That is a particularly difficult issue because the European protection order is in the form of a directive, which is quite specific in its terms. It says that an EU court can issue an EPO only to another EU jurisdiction, and that an EU court can recognise an EPO only from another EU jurisdiction. It is simply not possible even to apply a unilateral aspect of the EPO, but we have done that with regard to the civil protection orders that I referred to earlier.

We have done as much as we can in preparation for a no-deal exit—a no-deal exit of which no one, as far as I am aware, is truly in favour. But we have to plan for that contingency given the state of the law as it has been determined by Parliament. It is in these circumstances that I commend the regulations to the Committee.

[Lord Beecham]

I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.

[Lord Keen of Elie]

I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.

There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.

Motion agreed.