Brussels IIa Regulation on Family Law

Oliver Heald Excerpts

Thursday 27th October 2016 Written Statements

[The Minister for Courts and Justice (Sir Oliver Heald)]

The Government have today decided to opt in to the European Commission’s proposal which repeals and replaces regulation 2201/2003, also known as the Brussels IIa regulation, on cross-border family matters.

Brussels IIa has applied since 1 March 2005 and is the main instrument for families involved in cross-border divorce or children proceedings. It establishes rules to decide which EU member state’s courts can determine divorce and other matrimonial matters, and parental responsibility matters (including residence and contact), and how orders arising from these cases can be recognised and enforced in another member state. It also provides rules on the return of children abducted to, or wrongfully retained in, other member states (usually by one parent), which supplement the international 1980 Hague Child Abduction Convention.

Following an evaluation of the current regulation the Commission’s proposal aims to improve its use by providing clearer deadlines for certain procedures; making it easier for judgments to be recognised and enforced in another member state; clarifying and streamlining certain parts of cross-border child abduction proceedings; removing the possibility that a court will refuse to enforce a judgment on the basis that it would have applied different national rules to whether a child should have been heard in the proceedings; and clarifying and improving the procedures for co-operation between authorities.

Notwithstanding the result of the referendum on EU membership the Government consider it is in the UK’s interests to opt in to this proposal. First the UK already applies the current regulation to the benefit of UK citizens, including children, in cross-border families, and it wants to avoid the risk that, if the new regulation comes into force before the UK’s exit, and the UK has not opted in to the regulation, the existing regulation will no longer apply to the UK because it might be deemed inoperable. This might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a member state. Secondly, even after a UK exit the regulation will affect UK citizens, principally in other member states, and it is in the UK’s interests to influence the negotiations. As a family justice measure, this proposal must be agreed by unanimity in the Council.

During the negotiations the Government will aim to make sure that what is agreed respects national competence, limits any impacts on domestic law and procedures and minimises any additional burdens on the courts and the authorities that will use the new regulation.

[HCWS225]