Brexit negotiations: Justice must stand alone, says Bar Council

Posted On: 
27th February 2018

Hugh Mercer QC, Chair of the Bar Council Brexit Working Group, argues that UK and EU negotiators should agree a stand-alone deal on justice matters to avoid plunging parents into costly and protracted legal battles and to protect the welfare of their children.

Existing EU regulations operate to ensure that divorce, custody and maintenance rulings made in one EU country are enforced in others.
PA Images

As party politics and the withdrawal bill dominate Brexit news, there are big unanswered questions as to how separation and custody disputes will be resolved for UK-EU couples and their children, and how family law judgments will be enforced across borders.

Families in which the partners are from different Member States risk being adversely affected by Brexit in relation to divorce and children matters. Existing EU regulations operate to ensure that divorce, custody and maintenance rulings made in one EU country are enforced in others. Whilst they provide much-needed certainty to couples who are separating and help to ensure the welfare of their children, it is not yet known if current arrangements will continue to operate post-Brexit.

That is why the Bar Council has called for the EU and the UK to agree a separate negotiating track for justice, leading to a stand-alone treaty which would allow existing arrangements to continue, including those governing the recognition and enforcement of family law. We are urging both sides to conclude such a Treaty regardless of whether formal agreement is reached between the EU and the UK on the Withdrawal Agreement and Future Relationship within the Article 50 TFEU timeframe, or at all.

If that proposal does not succeed, then citizens will be reliant on the arrangements foreseen in the Withdrawal Agreement. As things stand, the effect of the Withdrawal Bill will be that regulations will become part of ‘retained’ law but, if no deal is struck with the EU 27 to ensure that they are reciprocal, they will not help those in the UK to enforce judgments in other EU countries.

In case securing a separate negotiating track for justice matters is not possible, the Bar Council has also urged the UK Government to replace the Brussels IIa and Maintenance Regulations on the same basis as the Recast Brussels Regulation, and to ensure that the agreement in relation to Brussels IIa will apply equally to the proposed Recast Brussels IIa Regulation when that comes into force. Any agreements should come into operation seamlessly on exit day.

Negotiating these arrangements is vital for the protection of children’s welfare and to ensure that separating couples from different EU countries do not have to go through longer and more costly legal battles which risk bringing greater contention and discord to what are often already painful and challenging circumstances.

The Bar Council’s letters to the EU Chief Negotiator Michel Barnier, calling for a separate negotiating track for justice issues, is available here.