Family law and Brexit Part II: Private children law


In our previous note, “Family law and Brexit Part I: Divorce and Maintenance”, we discussed the possible impact of a “no-deal” Brexit on UK divorce and maintenance law . In this note we discuss some possible changes to children law in the event of a “no deal” scenario, particularly in child abduction and parental responsibility cases.

Child abduction cases

Many international child abduction cases in the UK are governed by the 1980 Hague Convention, which as international rather than EU law will continue to apply after Brexit. However, EU law does apply when dealing with international child abduction within the EU, and the processes under EU law tend to offer speedier solutions than those under the Hague Convention.

In the event of a “no deal” Brexit, EU law will cease to apply and the UK will fall back on the 1980 Hague Convention when dealing with child abduction matters within the EU. EU member states will remain subject to ‘Brussels II bis’ as well as any further revisions to that EU legislation. This Convention is already used in cases involving a number of non-EU countries who are signatories to it, so a “no deal” Brexit would involve treating international child abduction cases within the EU in the same way as they are already dealt with when many non-EU countries are involved. This could mean that in some cases the process is slower.

Parental responsibility cases

Decisions on child arrangements which are made in the courts of EU Member States before the UK’s exit from the EU will continue to be recognised in EU Member states. Further domestic legislation for the UK has been introduced to ensure that the UK will continue to recognise decisions in cases commenced in EU member states after a no-deal. 

The EU’s guidance to Members States confirms that where child arrangements proceedings are ongoing, an enforceability declaration will need to be sought before the UK leaves the EU to ensure that Member States will enforce the outcomes of those proceedings under EU law after Brexit. If this affects you, you should seek local legal advice within the relevant EU member state to find out how to obtain an enforceability declaration.

If cases commence in England and Wales after a no-deal then it appears that recognition and enforcement of any decisions in those cases will need to be sought under the 1996 Hague Convention, which governs how child protection and arrangements decisions are recognised between the UK and some non-EU countries.  

If there is a need for such orders to be enforced in an EU Member State, we advise that local legal advice is sought in the appropriate Member State in relation to the recognition, registration and enforcement of such decisions under the Hague Convention.

Note – In the event that the UK leaves the EU on the terms of a withdrawal agreement or on a ‘no deal’ basis on 31 January 2020, the contents of this note may need to be revised.

These are complex issues and seeking specialist Family Law advice is recommended. If you would like to discuss this article or require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty and Alexandra Wilks. You can also use our contact form.

The article image is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic license. It was created by Christolph Scholz.

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