Brexit: justice for families, individuals and businesses? Contents

Chapter 3: The Brussels IIa Regulation and the Maintenance Regulation


71.Brought forward by the Commission under the auspices of the AFSJ, and in response to specific calls from the European Council, both the Brussels IIa Regulation (BIIa) (see Box 8) and the Maintenance Regulation (MR) (see Box 9) set out rules dealing with jurisdiction and the enforcement and recognition of judgments in the area of family law. The UK Government chose to participate in both Regulations. Professor Rebecca Bailey-Harris, of 1 Hare Court, pointed out that these Regulations applied “in a completely different sphere from commercial litigation”, because they dealt with “individuals”.109

72.The BIIa addresses: divorce, legal separation, marriage annulment, and parental responsibility including rights of custody, access, guardianship, and placement in a foster family or institutional care. The MR’s rules address matters relating to maintenance obligations.

73.The BIIa is currently the subject of a renegotiation in the Council, and the Government confirmed that it had decided to opt into this latest process on 27 October 2016.110 Former Court of Appeal judge, the Rt Hon Sir Mathew Thorpe, welcomed the Government’s “very significant” decision, “because there is no doubt that [the renegotiation] … will result in a stronger and modernised Regulation”.111

74.The Minister told us that shortly after he joined the Government he had had to decide whether to opt into the renegotiation of the BIIa. He believed the UK should opt in, “because it is a good system that helps with the arrangements for children and with matrimonial matters”.112

The Regulations

75.Mr Tim Scott QC, who gave evidence on behalf of the Bar Council, explained the rationale of the two Regulations: “There are 3 million citizens of other member states living in the UK and 1.23 million UK citizens living in other member states”. A certain proportion of these citizens would experience contentious family breakdown, and both Regulations provided certainty to “ordinary citizens”, which was “most valuable” and “vital”.113

Box 8: The Brussels IIa Regulation (BIIa)

The BIIa sets out the system for establishing jurisdiction in relation to divorce, legal separation and the annulment of marriage.114 It provides that an individual may take a matrimonial action in the courts of the Member State where one or both parties to the marriage are or were habitually resident or the Member State of the parties’ common nationality or domicile; legal action may therefore be possible in a number of Member States.115

Further, once proceedings have started in the first Member State, subsequent courts in the other Member States must refuse jurisdiction (sometimes referred to as the first-in-time-rule). This can give rise to the problem of parallel proceedings, namely proceedings pending in different courts in two or more Member States (abolition of this rule was a key amendment made by the BIR in the context of civil and commercial litigation). There is a risk of litigants using or abusing the system to frustrate proceedings issued in competing jurisdictions, particularly as it can encourage parties to race to be the first to issue proceedings in the most advantageous jurisdiction (see Box 6). Some also view it as a deterrent to the use of alternative dispute resolution and other non-court reconciliation schemes.

Finally, the Regulation provides a framework for the automatic recognition of divorces concluded in other EU Member States, without the need for any special procedure.116 Parties do not need to go to court to have a decision from another Member State’s court recognised. However, an interested party may ask a court not to recognise a decision and the court may do so if the decision is clearly contrary to public policy; contradicts another decision; or if there were procedural defects, for example, one party was not served with the relevant papers and so did not attend court.117 The court is not entitled, however, to hear an appeal against the original decision.

The Regulation also deals with matters of parental responsibility, including rights of custody, access, guardianship, and placement in a foster family or institutional care. It may also apply to measures involving the child’s property, if these are related to the protection of the child. It applies to all decisions made by courts in matters of parental responsibility, not just those arising in relation to matrimonial proceedings. Parents do not need to be married to each other or be the child’s biological parents. As well as court judgments, the Regulation can apply to agreements between parents that are enforceable in the country where they are made. It covers jurisdiction, recognition and enforcement, co-operation between central authorities, and specific rules on child abduction and access rights.

The Regulation provides that the most appropriate forum for matters of parental responsibility is the relevant court of the Member State where the child is habitually resident. 118 Habitual residence is not defined, but the Regulation’s guidance notes state that a person cannot be habitually resident in more than one country at the same time; in the case of children, this is usually straightforward to ascertain.

Articles 40 and 41 provide that a child can maintain contact with all holders of parental responsibility by ensuring that a judgment on access rights, or the return of a child following abduction, are directly recognised and enforceable in Member States. The Regulation creates a system of co-operation between central authorities to facilitate communications and any agreements reached between the parties. Further, judgments given in one Member State must be recognised and enforced in any other, save where:

  • this would be manifestly contrary to the State’s public policy;
  • the child was not given an opportunity to be heard;
  • the judgment was given in the absence of a person not served with the documents in a timely and appropriate way; or
  • a person claiming an infringement of their parental responsibility was not given an opportunity to be heard.

The Regulation also deals with child abduction (the unlawful removal or retention of a child). Where a child is abducted to another Member State, the person having custody of the child may apply to the State to which the child has been abducted for their return.119 The request can only be refused in limited circumstances. In general there must be an order for the immediate return of the child.120

Access rights are directly enforceable in other Member States. If the court issuing the order also issues a certificate, it is not necessary to seek a declaration that the rights are enforceable from a court in another Member State; the judgment will be treated as a judgment of any other Member State.121

76.Sir Mathew Thorpe said that “there is so much to be said in favour” of the BIIa, and he praised the EU’s “laudable ambition to achieve better justice for European citizens where issues cross the border of Member States”. In his view, the Regulation had been “broadly successful”.122

77.David Williams QC focused on the Regulation’s contribution to child welfare: “The protection that [the Regulation] has given children by creating a link between them and the country rather than between the adults and the country certainly serves their best interests”.123 Jacqueline Renton, of 4 Pump Court, argued that the BIIa had “certainly streamlined jurisdiction and the enforcement of orders in a children context”, adding that it had “provided much more certainty as a framework for children cases than we had before”.124

Box 9: The Maintenance Regulation

The EU Maintenance Regulation establishes similar rules on jurisdiction, recognition and enforcement of decisions in matters relating to maintenance obligations.

It is designed to enable a maintenance creditor (an individual to whom maintenance is owed or alleged to be owed) easily to obtain in one Member State a decision that will be automatically enforceable in another without further formalities. It also establishes jurisdiction for the making of maintenance decisions.125 The Regulation enables parties to a dispute to agree jurisdiction if they wish (with choices to be based on the habitual residence of one of the parties or the place of last common habitual residence or the court of the Member State of which one party is a national).126 This freedom to agree does not apply, however, in cases involving maintenance for a child.

The Regulation also includes a lis pendens rule (first-in-time rule), potentially giving rise to the ‘Italian Torpedo’ problems highlighted in Box 6.127

Unlike the the BIR and BIIa, the Maintenance Regulation includes rules on the applicable law, namely, which Member State’s law should be applied to a particular dispute (Article 15). It provides that the applicable law for maintenance obligations should be determined in accordance with the Hague Protocol of November 2007. This aspect of the Maintenance Regulation does not apply to the UK, which applies English law to maintenance cases. There is a cost to the enforceability of English decisions because they will not be automatically recognised in another State if they are manifestly contrary to public policy in that State, or where a decision was given in default of appearance, or the decision is irreconcilable with an earlier decision given in another jurisdiction.128

78.David Williams QC said that the BIIa had “transformed the way family law has operated over the last 11 years”. The Regulation had “overlaid all our pre-existing domestic legislation”, and had “spread into every area of our domestic law”.129

79.Professor Rebecca Bailey-Harris agreed, describing both Regulations as “incredibly important”, because they provided “certainty and effectiveness for individuals—children and their parents and adult partners—across what is a very global Europe”.130

The Minister’s view

80.The Minister described the BIIa in particular as “very important”. He acknowledged that without the “mutuality and reciprocity” introduced by these Regulations there was the danger of “parallel proceedings in different countries over family matters … that would create a range of problems”. He felt that apart from being chaotic, “one party could exercise an economic dominance over another, whereas, if there is one set of proceedings in one country under one set of rules, that is less likely”. He confirmed that their “content will have to be part of the negotiations”, but was “not necessarily saying that we will argue for these Regulations”.131

81.In dealing with the personal lives of adults and children, both the Brussels IIa Regulation and the Maintenance Regulation operate in a very different context from the more commercially focused Brussels I Regulation (recast).

82.These Regulations may appear technical and complex, but the practitioners we heard from were clear that in the era of modern, mobile populations they bring much-needed clarity and certainty to the intricacies of cross-border family relations.

83.We were pleased to hear the Minister recognise the important role fulfilled by the Brussels IIa Regulation and confirm that the content of both these Regulations will form part of the forthcoming Brexit negotiations.

Box 10: Case study 2: the Maintenance Regulation

An English woman and an Italian man marry in England and have a son. Their relationship breaks down and they divorce in England. The father agrees with the mother that he will pay maintenance for the child. After the divorce, the father returns to Italy. Mother and child are living in England. He then refuses to make the maintenance payments as previously agreed. The mother decides that the only way to get the money owed is to go to court—but which court to go to and what is the most effective route to use?

Under the EU Maintenance Regulation 4/2009 the mother, who is the creditor, can apply to the court in England and Wales for a maintenance order, then apply to the England and Wales Central Authority (and, through that, the Italian Central Authority) for the enforcement in Italy of the court order from England and Wales for the payment of maintenance by the father, who is the debtor.

Alternatively, under the EU Maintenance Regulation the mother can apply, through the two Central Authorities, to a court in Italy for an order for maintenance. The Central Authorities will deal with any translation requirements. Enforcing an Italian order might be more effective than seeking enforcement of an English order.

Source: HM Government’s Review of the Balance of Competences between the United Kingdom and the European Union: Civil Judicial Cooperation

Potential problems if UK leaves the BIIa and the MR without alternative arrangements in place

Loss of certainty and predictability

84.Having praised the contribution these Regulations make to the lives of “ordinary citizens” living in the EU, Mr Tim Scott QC said that he “would be very concerned indeed if [the Regulations] were to be lost” post-Brexit.132

85.David Williams QC feared the loss of the uniformity introduced by the Regulations, which is underpinned by the CJEU. He said the remaining Member States would “carry on interpreting and applying [these Regulations] with the assistance of the CJEU”, while the UK would be applying the 1996 Hague Convention on parental responsibility and protection of children (see Box 11). If this happened, he predicted a detrimental impact on children: it would be “like having a Windows operating system and an Apple operating system: they just do not talk to each other”.133

86. Professor Bailey-Harris also feared the loss of uniformity, which was “a real danger across the board”. For example, “the standard concept of habitual residence, that applies to children, divorce and maintenance. There is a real danger of slipping back into a lack of uniformity”.134

Box 11: The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children

The 1996 Hague Convention, which has a similar scope to the BIIa, sets out uniform rules determining which country’s authorities are competent to take measures of child protection. It seeks to avoid legal and administrative conflicts, and builds a structure for effective international co-operation in child protection matters between the different systems. The Convention places primary responsibility on the authorities of the country where the child has his or her habitual residence, but the Convention also allows any country where the child is present to take necessary emergency or provisional measures of protection.

The Convention includes rules determining which country’s laws are to be applied, and it provides for the recognition and enforcement of measures taken in one Contracting State in all other Contracting States. Among many matters, the Convention addresses custody and contact disputes, the treatment of unaccompanied minors, care of children across frontiers, and provisions dealing with the exchange of information and collaboration between national administrative child protection authorities in the different Contracting States.

All EU Member States have ratified the Convention, but within the EU the BIIa specifically takes precedence. 135

Enforcement of court decisions

87. Mr Tim Scott QC raised “the question of enforcement under both Brussels IIa and the Maintenance Regulation. There are provisions for ready enforcement, and again it would be a big loss if we were to lose them”.136 Sir Mathew Thorpe agreed:

“In family law, it is … true that the enforcement of orders is absolutely crucial … It is no good obtaining a judgment here in London in relation to contact with children in Spain if that is not enforceable in the country of habitual residence.”137

88.Professor Rebecca Bailey-Harris focused on the potential loss of the MR:

“Maintenance cases are not about high-wealth individuals; they are often about children needing maintenance from a parent. If the parent goes off somewhere else in Europe, it is extremely difficult reciprocally to enforce maintenance without the proper arrangements.”

She argued that this aspect of the MR “really needs to be salvaged in negotiations [because children’s] financial rights are actually very important”.138

Loss of provisions on child abduction

89.David Williams QC said that “one of the most significant deficits” would be the loss of the child abduction protections in the BIIa (see Box 12). Without them, he was clear that “serious problems will arise and some children … will suffer very serious consequences”. He noted that “unremedied child abduction” led to mental health problems, and while he acknowledged that “there may not be many in England”, he believed that the few British children who would suffer because of the loss of this EU legislation were “a few too many”.139

Box 12: Case study 3: the Brussels IIa Regulation

An unmarried couple are living in Wales with their four-year old daughter. The father has parental responsibility. The relationship breaks down and the couple split up, but all the family remain in Wales, with the parents sharing residence and contact with the child between them. One day, the mother fails to return the child to the father when expected. It is discovered that the mother has fled with the child to Poland with her new partner. Having failed to persuade the child’s mother to return the child, the father knows that he needs to go to court to get his daughter back to Wales—but which court to go to and what is the most effective route to use?

Under the 1980 Hague Convention on civil aspects of international child abduction, the father could apply, through the England and Wales Central Authority and the Polish Central Authority, to the Polish court to make an order for the return of the child. The mother might tell the court in Poland that there is a grave risk that return would expose the child to harm, because the child would be affected by emotional abuse. The Polish court might then decide to make a non-return order.

Brussels IIa mostly deals with jurisdiction, recognition and enforcement of judgments. It also has provisions about child abduction that change the way the 1980 Hague Convention operates between EU Member States. Under the 1980 Hague Convention rules, a non-return order ends the case and the child stays where he or she has been taken. But under Brussels IIa, the court in Poland must send the papers to the court in Wales. The court in Wales, because the child lived in Wales before the abduction, can consider the case, provided the father asks the court to do so within the time limit. If the court decides the child should be returned, the Welsh court order will mean the child will come back to Wales despite the earlier decision of the Polish court.

Source: HM Government’s Review of the Balance of Competences between the United Kingdom and the European Union: Civil Judicial Cooperation

Loss of domestic application

90.Professor Bailey-Harris pointed out that, in contrast to the BIR, in the area of UK family law, these Regulations are “our domestic law”. She warned that “We are not just talking about reciprocity and international cases … [Article 3 of the BIIa] is our domestic divorce law, the court of first call, and similarly with the Maintenance Regulation, whether it is a case with an international dimension or not”. She told us that “if I were being divorced … it is Article 3 of [the BIIa] that is the domestic law. That is a fundamental issue.”140

Impact on family court system

91.On behalf of the Bar Council, Mr Tim Scott QC was concerned that the loss of these Regulations would have a considerable impact on the workload of the family courts and predicted that a “potentially very large number of cases will be imposed on an already fully stretched family court”. He argued that a lot of this work “is done by lay magistrates and district judges, who are not aware on a day-to-day basis that they are operating EU Regulations, although, in fact, every case that comes before them is based on EU Regulations”. He warned that “if we lose the EU Regulations, there will be a massive retraining exercise”.141

92.We have significant concerns over the impact of the loss of the Brussels IIa and Maintenance Regulations post-Brexit, if no alternative arrangements are put in place. We are particularly concerned by David Williams QC’s evidence on the loss of the provisions dealing with international child abduction.

93.To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm.

The Great Repeal Bill—a solution?

94.When asked whether the Government’s promised Great Repeal Bill would help avoid any gaps in the legal protection provided by these Regulations, Professor Rebecca Bailey-Harris said “it will not”.142 Jaqueline Renton said that “the issue of reciprocity” would “require more thought”.143 Professor Adrian Briggs stated that as far as the “Regulations on matrimonial and parental matters … and maintenance are concerned, local re-enactment [via the GRB] is impracticable”.144

95.David Williams QC expressed similar reservations, dismissing the GRB as an “almost worthless” solution. As with the BIR, the fundamental difficulty was the impossibility of replicating the reciprocal arrangements that exist under EU law in a purely domestic statute. The great advantage of the BIIa was its “reciprocal parts”;145 enacting this EU legislation via the GRB would mean that the Regulation would apply domestically, “but in any dispute between England and France you would have the 1996 Hague Convention rules applying”. He warned us that dealing with the BIIa and the MR via the GRB “would introduce an element of confusion”.146

96.When these concerns were put to the Minister, he argued that the GRB would provide the solution, because “it will bring into UK law all the laws of the EU that we currently have in force for our country”. He acknowledged that there were “some areas of concern”, citing the example of matrimonial law, as this “is not covered by the Hague Conventions” (see Box 8). But he believed this would not be a problem, because the GRB “would … bring [matrimonial law] home into our own law from the EU”.147

97.It is clear that the Government’s promised Great Repeal Bill will be insufficient to ensure the continuing application of the Brussels II and Maintenance Regulations in the UK post-Brexit: we are unaware of any domestic legal mechanism that can replicate the reciprocal effect of the rules in these two Regulations. We are concerned that, when this point was put to him, the Minister did not acknowledge the fact that the Great Repeal Bill would not provide for the reciprocal nature of the rules contained in these Regulations.

98.We are not convinced that the Government has, as yet, a coherent or workable plan to address the significant problems that will arise in the UK’s family law legal system post-Brexit, if alternative arrangements are not put in place. It is therefore imperative that the Government secures adequate alternative arrangements, whether as part of a withdrawal agreement or under transitional arrangements.

109 Q 7

110 The EU Justice Sub-Committee retains the proposal under scrutiny.

114 Council Regulation (EC) No 2201/2003 of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 OJ L 338, 23 December 2003, pp 0001–0029, (Brussels IIa Regulation) (Article 3)

115 Article 3 of the Brussels IIa Regulation

116 Article 21 of the Brussels IIa Regulation

117 Article 22 of the Brussels IIa Regulation

118 Article 8 of the Brussels IIa Regulation

119 Articles 10 and 11 of the Brussels IIa Regulation

120 Also of relevance in this regard are: The Hague Convention 1980 on the civil aspects of child abduction and The Hague Convention (1996) on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children apply.

121 Article 41 of the Brussels IIa Regulation

125 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10 January 2009 (The Maintenance Regulation) (Article 3)

126 Article 4 of the Maintenance Regulation

127 Article 12 of the Maintenance Regulation

128 Article 24 of the Maintenance Regulation

135 Article 61 of the Brussels IIa Regulation

144 Written evidence from Prof Briggs (CJC0002), para 9

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