Bitesize: Cross-border civil proceedings in a no deal scenario
By James Brannan 26th September 2019
Brexit is often compared to a divorce, but those paying attention during the Wembley debate, a few days before the referendum, may have heard our current PM refer to actual divorce proceedings. He lamented that the ECJ “adjudicates in divorce law for Heaven’s sake ... nothing to do with the single market”! While that may have won a few more votes for leave, the Government is now obliged to admit that cross-border divorce will present problems after Brexit. It already released a paper in August 2017 on cross-border civil disputes (“Providing a cross-border civil judicial cooperation framework”) in response to the European Commission’s “Position paper on Judicial Cooperation in Civil and Commercial matters”. It subsequently published, in June 2018, an outline of what it was seeking in the negotations EU Commission Negotiaton Doc on Judical Cooperation . The UK basically wanted reciprocal arrangements to be maintained, but of course that was in the context of a negotiated withdrawal – now it is foreseeing a no deal scenario. The changes (or at least guidance) dealt with in this bitesize concern exclusively civil proceedings, i.e. family and commercial matters (not criminal proceedings, where certain EU safeguards and mechanisms will sadly no longer be binding on the UK), applicable to British or EU citizens involved in cross-border (UK/EU27) cases.
On 23 September 2019 the UK Ministry of Justice posted a collection of documents on “Family law disputes involving EU after Brexit: guidance for public” UK MoJ Family Law Disputes - EU and Brexit
The French authorities have also added the following to their Brexit pages: “Legal Rulings” (in English) French Gov Brexit Pages in English
Outside the EU, the UK will still be a party to certain international arrangements, such as the Hague Conference on Private International Law (which has produced conventions for example on international child abduction and choice of court agreements) and in the United Nations Commission on International Trade Law. It wants to retain participation in the Lugano Convention, which is an EU/EEA instrument but open to other parties. In August 2017 the UK Government thus concluded: “we are seeking a close and comprehensive framework of civil judicial cooperation with the EU ... on a reciprocal basis, which would mirror closely the current EU system”. That cooperation was ultimately reflected in the “separation clauses” part of the Withdrawal Agreement under “Ongoing judicial cooperation in civil and commercial matters” (Articles 66-69), maintaining various EU arrangements but only in respect of the transition period. It was acknowledged by both sides that these matters would require further agreement in the context of the future relationship, even in a deal scenario.
The latest UK Government guidance on cross-border family disputes in the no deal scenario covers divorce, child maintenance and parental responsibility proceedings. Any ongoing divorce proceedings (involving a UK and EU national/resident) will continue under the current rules. But even if a divorce is final before Brexit and needs to be recognised in the EU27 the advice is that “you will need to take steps to make sure your divorce is recognised”. For child maintenance and arrangement orders, likewise, steps must be taken if a decision needs to be recognised and enforced in a EU State after Brexit. While ongoing cases remain unchanged in the UK (but not necessarily in the EU), post-Brexit cases may be subject to different procedures, in particular to secure enforcement in the EU27. The guidance advises those concerned to contact the relevant bodies but is lacking in detail about what the future procedures will be, leaving significant uncertainty.
The latest French Government information in this area (no deal but also some comparison with the deal scenario) announces starkly “European instruments relating to judicial cooperation in family matters will no longer be applicable; the free circulation of judicial decisions, the service of judicial and extrajudicial documents, and taking of evidence, will no longer be governed by EU regulations”. For example, the recognition of civil decisions is covered by the Brussels Regulation, which will cease to apply in the UK, although there is an existing bilateral agreement. It points out that the UK could still ratify the Lugano Convention on jurisdiction (see above). In various areas, such as family matters and mutual legal assistance, the guidance points out that some Hague Conventions will apply, but these “do not allow direct cooperation in the same way as European instruments, and therefore lead to longer timeframes”. UK civil decisions will no longer be subject to the simplified enforceability procedure in France. Future bilateral arrangements are not excluded of course, even in a no deal scenario, but these are bound to take time to set up.
If no withdrawal agreement is ratified, the situation will not have evolved much since Peers wrote a blog post on the UK’s position in August 2017 here's Peer's Blog . Basically, the UK wanted to maintain a raft of cross-border arrangements but not be subject to ECJ jurisdiction. As Peers wrote “It’s a bit like tearing down and rebuilding a house, in order to change one brick”. That just about summarises Brexit as a whole, but one must never overlook the concrete effect of this folly on individuals embroiled in very sensitive family and other civil cases.