Tasha Bevan-Stewart and Rebecca Ledgerwood, in our Leading Family Law team, look at the impact of Brexit on international children cases.
The end of the transition period on 31 December 2020 means EU law no longer applies to cases instituted in family courts in England & Wales – this is the biggest change in international family law for 20 years.
In place of EU law, the 1996 Hague Convention will now govern international arrangements for children. This Convention, to which the UK and all EU states are signatories, deals with:
- parental responsibility;
- jurisdiction (whether a court has sufficient connection to deal with a dispute);
- which state’s law is applicable to a dispute;
- enforcement of contact (when a parent is to see a child); and
- cross-border co-operation and information, including on child protection.
The Convention applies to a child from birth to 18 years.
Transitional provisions mean that EU laws still apply to child-related cases begun before 1 January 2021, but any cases commenced after that date will fall under the 1996 Hague Convention.
The Hague Convention 1996 states that jurisdiction for proceedings is based on a child’s habitual residence. Jurisdiction means the ability of a court to deal with a case. If a child changes their habitual residence during the course of proceedings, the Court would lose jurisdiction (except in cases of child abduction).
The 1996 Convention also provides that parental responsibility is established under the laws of the country where the child is habitually resident. This could mean that parents automatically acquire parental responsibility if the child moves to a different jurisdiction whereas they would not have acquired it here.
One of the most significant changes under the new regime is in the area of recognition and enforcement of domestic orders relating to children. Under EU law, domestic Children Act orders were recognised and enforceable automatically in EU member states. This allowed for the direct enforcement of child arrangement orders and orders for the return of a child following wrongful removal/retention. There is no such provision under the 1996 Hague Convention - thus following the end of the Brexit transition period on 1 January 2021 this will to be a far more complex process. Orders will need to be registered in the foreign jurisdiction before being capable of recognition or enforcement there.
Elements of the 1996 Convention also relate to child abduction cases – in particular, care should be taken in using undertakings which may not be enforceable in all countries.
The 1980 Hague Convention will still provide the legal framework for a return of a child following abduction, however, certain enhancements of this convention will be lost. For example, the requirement to deal with cases within 6 weeks and use the most expeditious process available, falls away. Automatic enforcement also will cease to apply. A benefit however is that abduction cases will be finalised in the country first hearing the case with no ‘second bite at the cherry’ possible by another state.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.