Post Brexit child law

Current and draft 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 which deal with what is to happen after 31 December 2020. In a nutshell, it revokes BIIR and amends primary and secondary legislation to deal with the revocation. Similar legislation in England (The Jurisdiction and Judgments (Family)(Amendment etc.) Regulations 2019, The Civil Partnership and Marriage (Same Sex Couples)(Jurisdiction and Judgments)(Amendment etc.)(EU Exit) Regulations 2019 and a draft SI The Jurisdiction, Judgments and Applicable Law (Amendment)(EU Exit) Regulations 2020) has been enacted which repeals various EU regulations linked to family cases from 1 January 2021 including BIIR and amends primary and secondary legislation.

What is going to replace BIIR?

The Scottish government has released practical guidance on how it imagines we will deal with family law from 31 December 2020 ("Family law disputes involving EU after Brexit: guidance for legal professionals"[1]).

Focussing solely on child law, the headlines are that international parental child abduction cases will not alter significantly as the main instrument we use in Scotland, the 1980 Hague convention, will remain in force after 31 December 2020 and all EU countries are signed up to that (but see my comments below on particular issues that may arise).

For PR & R cases, if your case began before 1 January 2021, the EU rules will continue to apply. If an application for recognition of a PR & R order from Europe is received in Scotland before 1 January 2021 it will continue to be recognised.  If your proceedings are started after 31 December 2020, the 1996 Hague Convention essentially replaces BIIR and 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. Liechtenstein for example is not.

If you are seeking to have your Scottish order registered for enforcement in EU, the Scottish government's current guidance states this needs to be done prior to 31 December 2020 for it to be recognised (you must have obtained your declaration of enforceability). If done after 31 December 2020, guidance from the EU states that national rules on recognition of third country orders will apply. I would suggest that the 1996 Hague rules will apply if you are dealing with two contracting countries to the 1996 Hague convention.  However, the UK wide 2019 Withdrawal Agreement[2] (Article 67) suggests 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 can be enforced using the EU BIIR rules, even if the decision took place after 31 December 2020. The current withdrawal agreement postdates the Scottish government's guidance but it remains to be seen how the EU will deal with enforcement of UK orders.

Are there similarities in BIIR and the Convention? 

The primary rule under the 1996 Convention (Article 5) is that the Scottish Courts can take such measures under the 1996 Hague if the child is habitually resident in Scotland.  There are some exceptions to this:

• Under Article 6 if it is not possible to determine where a child is habitually resident, for example if a child is a refugee then presence of the child will suffice in Scotland for the Courts to hear the case. 
• Article 7 is an exception to the habitual residence rule in relation to child abduction: so where a child has been relocated to another country without the consent of all the holders of PR &Rs or the consent of the Court of the country of habitual residence, then that country will retain jurisdiction. 
• The other exception which is found in Article 10 which could be described as a divorce jurisdiction, so if the child is habitually resident, it contains provisions for when the country that's hearing the parents' divorce can also deal with the parental rights and responsibilities action pertaining to the child.
• Article 11 of the 1996 Hague Convention is similar to Article 20 of BIIR in that the provision that allows you to seek emergency protection if the child is present in the country and if the orders sought are urgent.  There is no definition of urgency, but it should be a strict interpretation of the word.  However, once the order is made, jurisdiction will be concurrent with the contracting State that has jurisdiction but it is subordinate to it so the emergency orders will lapse once the State of jurisdiction takes the appropriate measures.  Article 11 Orders can be enforced. In England, Article 11 of the 1996 Convention has been used in cases where return of the child is sought under the 1980 Hague Convention to enforce the protective measures that have been made as a prerequisite of the Return Order.[3]
• There is also a provisional measures clause under Article 12. The idea behind this clause is that if the child is staying for a short duration in a country which is not the country of habitual residence, for example a holiday, and protection measures are needed but are not urgent, then you can apply for them under this section.  However it is same as Article 11, any provisional measures that you obtain will fall when the habitual residence state takes over.  Again, however, these orders can be enforced. 
• Articles 8 and 9 deal with transfer of jurisdiction between Courts similar to Article 15 of Brussels, but note that a transfer can only takes place between contracting States of the 1996 Convention, not a contracting State and a non-contracting State. There is also a query whether the EU will deal with transfer cases under the 1996 Hague convention or its own Brussels legislation after 31 December 2020.  Transfers can take place where the contracting State requests or the transfer is requested of the contracting State.  The test is noted but essentially it is to do with connection, agreement of the contracting States (not the parties) and the child's best interests. 
• Article 13 of the 1996 Convention, is the Lis pendens rule, so conflicts or jurisdiction are resolved by Lis pendens under the 1996 Hague Convention.  Thus giving priority to the Court first seized, similar to Brussels discussed above. 
• Article 14 allows for a continuation of any measures already ordered under the 1996 Hague even where the child's circumstances change to the extent that the original ground of jurisdiction no longer applies. E.g. the child moves country with consent of both parents. 
• In terms of enforcing PR & R Orders under the 1996 Hague Convention, this is different.  While a Certificate under BIIR is needed from the country of habitual residence, thereafter there is generally automatic enforcement.  In terms of the 1996 Convention, Articles 26 and 28 of the Convention mean that a declaration of enforceability will be required in the State where enforcement is to take place as a pre-condition of enforcement.  This is in contrast to the current rule under BIIR, but also in contrast to the Brussels recast that Europe are currently considering.  While Article 26(2) of the 1996 Convention states that each contracting State should have a simple and rapid procedure for securing a declaration of enforceability, every State has different procedures. 
• If the decree is not from a contracting state the Family Law Act 1986 will apply. Section 26 has a special Scottish rule which provides that it 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[4].
• In relation to international parental child abduction, both the 1996 Hague Convention and the 1980 Convention will remain available to us to use after 31 December 2020. The Jurisdiction and Judgments (Family)(Amendments etc)(EU Exit) Regulations 2019 make amendments for Scotland in legislation concerning international parental child abduction under BIIR.  Specifically it repeals for Scotland provisions within the Child Abduction & Custody Act 1985 that provide for Article 60 of BIIR to take precedence over the 1980 Hague Convention.

My next blog will consider any possible problems to this new post Brexit child law.