K J Smith Solicitors

Brexit risk forces Ministry of Justice into EU family law proposal

Published: 7 November 2016

Following the EU Referendum result with the UK voting to leave the European Union, the government has opted into a European Commission proposal on cross-border family matters.

The Ministry of Justice says it is in the UK’s interest to opt into the proposal, given the risks that the UK could face as a result of voting to leave the EU. Justice Minister Sir Oliver Heald issued a statement that included his recommendation that the UK should agree to opt into the proposal.

The Ministry of Justice is set to alter the law regarding disputes over divorce and custody of children for international couples involving more than one country. This is due to the European Union’s proposal for the UK that replaces the main legal instrument that is currently in place - the Brussels IIA regulation. The regulation was introduced in March 2005, and has applied to all civil law cases since then.

Heald said that the government ‘wants to avoid the risk that, if the new regulation comes into force before the UK’s exit, and the UK has not opted into the regulation, the existing regulation will no longer apply to the UK because it might be deemed inoperable’.

He further stated that ‘[t]his 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’.

The Brussels IIA regulation has a main principle of upholding the right of a child to maintain contact with both parents, regardless of where they live or if they are separated. After an initial assessment, the proposal from the European Union’s Commission suggests that it will simplify and clarify proceedings within child abduction cases, set clearer deadlines for various procedures and also make the recognition and enforcement of judgements easier in other member states.

In previous cases, courts have refused to enforce a judgement due to applying different national rules for whether or not a child should have been heard during the proceedings. The new proposal will remove any possibility of this being allowed to happen, meaning that a consistent judgement would be enforced.

Heald also said that there should be a unanimous agreement within the Council of Ministers over the proposal put forward by the European Commission. He stated that the proposal would need a result that 'respects national competence, limits any impacts on domestic law and minimises any additional burdens on the courts and the authorities that will use the new regulation’.

The team at K J Smith Solicitors have many years of experience in dealing with all matters relating to children including custody, residency and child abduction. For more information or to discuss your circumstances with a member of our team, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames),020 7070 0330 (London), 0118 418 1000 (Reading),01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford) or 01494 629000 (Beaconsfield).

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