Post Brexit PR & R law
Current BREXIT family legislation
The Scottish Government has enacted "The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (same sex couples))(EU Exit)(Scotland)(Amendment etc.) Regulations 2019. In a nutshell, it revokes BIIR (which was the main law governing PR & R cases between the EU and UK) and amends primary and secondary legislation to deal with the revocation. The UK government's 2019 Withdrawal Agreement which I refer to below also covers Scotland.
What is going to replace BIIR?
will replace BIIR for PR & R cases in Scotland. Note that the position regarding international parental child abduction cases will not alter significantly as the main instrument we use in Scotland, the 1980 Hague Convention, remains in force between the UK and EU27 (but see my comments below on particular issues that may arise).
What rules are in the 1996 Hague Convention?
The primary rule under the 1996 Hague Convention (Article 5) is that the Scottish Courts can take such measures under the Convention if the child is habitually resident in Scotland. There are some exceptions to this under articles 6, 7, 11 and 12. Article 10 deals with divorce jurisdiction and outlines when PR & R cases can be dealt with by the court dealing with the parties divorce.
Transfers of cases are allowed under the conditions stated in articles 8 and 9. Article 13 has a lis pendens rule for conflicts of jurisdiction cases with an addition that it has to be in the best interests of the child. Article 14 provides a continuation of measures previously granted even when the original ground of jurisdiction no longer applies.
If you require to have your PR & R order registered and enforced in the EU27, articles 26 and 28 set out the procedure which is different from BIIR and requires a declaration of enforceability in the State where enforcement is to take place as a pre-condition of enforcement.
The UK wide 2019 Withdrawal Agreement (Article 67) states that if there is a decision granted in a case (whether in the UK or a country from the EU27) instituted before 31 December 2020, then that decision will be enforced using the EU BIIR rules, even if the decision took place after 31 December 2020.
If your proceedings started after 31 December 2020, the Withdrawal Agreement does not apply. The 1996 Hague Convention replaces BIIR and jurisdiction and enforcement of judgments with most European judgments can be recognised through that convention. You do need to check the country you are dealing with is a signatory to 1996 Hague Convention. Liechtenstein for example is not.
Intra UK PR & R cases
PR & R orders from a non-contracting state
If the PR & R order you seek to enforce in Scotland is from a non-contracting state the Family Law Act 1986 will apply. Section 26 has a special Scottish rule which provides that the order will be recognised if the child was habitually resident in that country, but enforcement will only follow if it is in the child's best interests.
- One of the more problematic areas may come in relation to enforcement of judgments under the 1996 Hague Convention. As I've said, the declaration of enforceability from the State of enforcement is a precondition for enforcing the judgment. PR & R cases may become more expensive and their judgments may become difficult to enforce because every State will have a different procedure in relation to how they enforce an order.
- Rights of access orders will no longer be automatically enforceable.
- Although the 1980 Hague Convention and the 1996 Hague Convention will be in place to deal with international parental child abduction, the additional measures under BIIR no longer apply.
- Service of Court documents within the EU may be affected. You cannot use the EU Service Convention after 31 December 2020. You can use the 1965 Hague Convention
, but not all States are signed up to this and even for ones that are, Germany, for example, does not allow postal service when using that Convention.
- The EU Domestic Protection Regulation
does not apply. The 1996 Hague Convention can be used though for Protection Orders in certain scenarios.
- The Lugano Convention
(which is used to clarify which national Courts have jurisdiction and cross border disputes in civil cases and enforcement of civil judgments) falls.
Child law cases in particular can be urgent and speed can often be a necessity, so getting to know the changes will be a high priority for international family lawyers in particular.