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

Lord Beecham Excerpts

Tuesday 29th January 2019 Grand Committee

I hope that this covers all aspects of these provisions. I should be content to answer any queries. I commend the draft instrument to the Committee.

[Lord Beecham (Lab)]

My Lords, again, I am grateful to the noble and learned Lord for being clear and relatively concise about the matters he is taking through this Committee today. It was important that he should explain the Government’s approach in this statutory instrument and he has done so very well.

The first of these two statutory instruments is the one in today’s batch which appears to have raised the most concern. It is disturbing that no impact assessments were published until 24 January and even more disturbing that they contained next to nothing of interest. It is fair to say that the Law Society “broadly supports” the statutory instrument on the basis that,

“it would be inappropriate to unilaterally continue the existing mechanism in the event of no deal”.

The grammatical error is theirs, not mine. Can the noble and learned Lord indicate whether there have been discussions with the EU about the future position on this, or on any other basis?

The Law Society stresses,

“the scale of loss of international functionality in family law in the event of no deal”,

It points out that,

“the lives of UK and EU 27 citizens have become intertwined in the last 40 years”.

It goes on to cite five significant benefits enjoyed by UK families, the future of which are at risk.

These are: the regulations on mutual recognition of protection orders, which help the protection of victims of domestic violence or harassment across borders; the European enforcement order, which facilitates the enforcement of uncontested claims; the maintenance regulations facilitating cross-border payment and maintenance; and the Brussels II regulation, which allows mutual recognition of divorce orders and determines the jurisdiction for them in domestic cases in close collaboration with courts and welfare services on issues affecting children, including child protection and abduction. Finally, the system provides mutual recognition of contact orders, and the enforcement of orders such as, in effect, custody of access.

Without a deal, we would have to fall back on less comprehensive provisions. There are, however, a number of additional concerns. Although the Minister in the other place, Lucy Frazer, informed the Justice Select Committee that there is an agreement to apply current rules to cases ongoing on exit day, the Ministry of Justice has confirmed that there is no such guarantee that the EU states will do this—they will treat us as a third state, and it will depend on their own law. This raises the risk of a rush to the courts to secure a decision under the present regime, which would cause real difficulties in cost to our own system.

Alternatively, people may find that a case started under one set of rules will be concluded under another set, with consequential delay and at greater cost. If the new system is deemed by one party more likely to assist his or her claim, there might be competing petitions. Will the Government therefore be addressing these issues—at the very least, seeking to ensure that the current rules will continue to be applied in all cases begun before Brexit?

I understand that the EU has issued a notice saying that only orders that should have been registered in the relevant member state would be recognised. There is also concern that the instrument, as drafted, could mean that a prenuptial agreement that is the subject of negotiation at the date of Brexit may not be upheld. We are dealing with issues potentially affecting large numbers of people, with 1 million British citizens living in the EU, and 3 million EU citizens living in the UK. The Bar Council points out that there are currently as many as 16 million cross-border family disputes in the EU, 140,000 international divorces and 1,800 cases of child abduction. What is the Government’s estimate of the number of cases of these three kinds affecting UK citizens, and EU citizens resident in the UK? I do not anticipate that the noble and learned Lord will have that information today, but I am sure he will convey it after today’s events.

The Council points to two EU instruments that impact significantly on our family law. One is on jurisdiction, recognition and enforcement of decisions in matrimonial cases, parental responsibility, and crucially, on international child abductions. The other deals with maintenance, including child maintenance. But the Bar Council cites a range of other benefits, including the protection of victims of domestic violence and forced marriage protection orders, together with a streamlined process for enforcing uncontested claims—for example, where the parties agree an out of court settlement.

While departure from the EU without a deal would not affect UK law, the Bar Council points to the risk of uncertainty, duplicate court proceedings, possible problems with enforcing UK court decisions in the EU, and significantly, costly pressure on an overstretched court system here. There are possible alternatives, which the Bar Council cites, under the Hague and Lugano conventions. But these are not, apparently, without problems. For example, we would have to join the EFTA or secure the agreement of all Lugano state members to adopt those systems.

There are also problems over financial provision for children. For example, these will be made only where the child and its resident parent live abroad, and the non-resident parent lives in England and Wales—whereas now it is the other way round. Should not the position be as it was before? As it stands, children living in the UK with fathers in the EU are likely to lose out. Further, it will be possible for the court only to make an order for periodical payments and lump sum or property orders.

--- Later in debate ---

[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.