European Union (Withdrawal) Bill

Baroness Massey of Darwen Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness Massey of Darwen (Lab)]

My Lords, I shall today discuss some of the implications of Brexit on children and families. I define children as being up to the age of 18, based on a number of agreed conventions. Laws relating to families and children are a vital part of our justice system. They vary in the devolved nations but form a structure which has been important in protecting children and resolving family disputes.

A paper by the law firm Resolution, prepared with the Family Law Bar Association, points out that there are approximately 140,000 international divorces and 1,800 cases of child abduction in the EU each year. Their opinion is that the European Union (Withdrawal) Bill could create problems for tens of thousands of people. We must place a requirement on the Government to report to Parliament on how the rights afforded by EU family law will continue to exist in UK family law and how progress is being made. Clause 6 must be amended to retain the ability to refer to the CJEU in family law on the basis of reciprocity.

I looked recently at the debate on the EU Committee report Brexit: Justice for Families, Individuals and Businesses?, which was held in December last year. The committee was chaired by my noble friend Lady Kennedy of The Shaws, who spoke of the civil justice co-operation between European states. As she said, it works, yet we seem to know little about the Government’s thinking on such complex matters.

The noble Baroness, Lady Shackleton, from the Conservative Benches, spoke of,

“a recipe for confusion, expense and uncertainty, particularly in family law”,

stating that,

“the UK’s family law system post Brexit is, to put it mildly, disappointing”.—[Official Report, 20/12/17; cols. 2122-23.]

The noble Baroness, a respected practitioner in this field, gave telling examples of such confusion. I am horrified to think that disputes over the custody of children, residence rights and safeguarding issues are likely to become more complex after Brexit. Children deserve better. They often find themselves innocent victims of situations they have not created.

Coalitions of those concerned for children’s rights in the UK are putting forward challenging demands for clear and consistent explanations of what the scenario will look like after Brexit. I am grateful to them for their advice and support. Measures in Wales, Scotland and Northern Ireland may well be affected, as much of EU law affecting children is likely to be repealed or amended through the use of delegated powers. A recent report by a law firm for the Children’s Rights Alliance and the Children’s Law Centre in Northern Ireland analyses clinically the whole scenario, including education and the Good Friday agreement. It makes uncomfortable reading.

Our domestic laws, embedded in the Children Acts 1989 and 2004 and the not yet in force Children and Social Work Act 2017 are, of course, welcome, but they do not cover the full range of children’s entitlements in EU law. The EU Charter of Fundamental Rights, the EU Convention on Human Rights, and the UN Convention on the Rights of the Child, ratified by the UK, focus on adherence to standards for children’s rights. The Minister may say that these rights will be protected, but where will be the statutory provision requiring respect for children’s rights in lawmaking? We should expect from Ministers a commitment to have due regard to the UN Convention on the Rights of the Child, and this should be incorporated in law.

The Children’s Rights Alliance makes a powerful argument for retaining the Charter of Fundamental Rights, due to be removed in Clause 5 of the Bill. Some charter rights—for example, those relating to children—have no equivalent protection in UK law. The noble Baroness, Lady Evans, referred to the charter in her opening speech this morning and pointed to the Government’s right-by-right analysis to justify their position. What she did not refer to was the Joint Committee on Human Rights’ scrutiny which, in six paragraphs, refers to uncertainty that is likely to undermine rights, including children’s rights under the UNCRC.

In short, laws to protect children and deliver transparent justice for families must be preserved. It concerns me that I see too little emphasis from the Government on that aspect of Brexit. I hope that legislation for children and families will feature in our future deliberations.