Despite the recent referendum vote in which the majority of UK citizens opted to leave the EU, the government has none the less decided to opt into a European Commission proposal to repeal and replace the main legal instrument – Brussels 11A regulation – which has applied to civil law cases since March, 2005, and helps international couples resolve divorce and child custody disputes involving more than one country.
According to the Ministry of Justice, the government has decided to take this action because it is the UK’s interests to opt into the EU regulation on cross-border family matters, particularly in the light of the risks that could arise once the UK has left the European Union.
In a written ministerial statement issued late last week, justice minister, Sir Oliver Heald, said that, notwithstanding the result of the EU referendum vote in June, it was in the UK’s interests to opt into the proposal. Mr Heald said the government has taken this action for two simple reasons:
[Firstly, the government] ‘wants to avoid the risk that, if the new regulation comes into force before the UK’s exit and the UK has not opted in to the regulation; the existing regulation will no longer apply to the UK because it might be deemed inoperable’.
However, he added ‘this might mean for a period of time no EU instrument regulates these matters for UK families even though the UK is still a member state.’
‘Secondly, even after a UK exit, the regulation will affect UK citizens, principally in other member states, and it is in the UK’s interests to influence the negotiations.’
Under existing rules, the current regulation’s main objectives is to uphold the rights of children to maintain contact with both parents, even if they are separated or live in different EU countries. After an extensive re-evaluation, the Commission’s new proposal aims to clearer deadlines for certain procedures, make it easier for judgments to be recognised and enforced in other member states, and streamline and clarify certain parts of cross-border child abduction proceedings.
The other important point to note is that the proposal also removes the possibility that a court will refuse to enforce a judgment on the basis that it would have applied different national rules to whether a child should have been heard in the proceedings.
However, as the proposal is a family justice measure, the justice minister said the proposal must be agreed by unanimity in the Council of Ministers. During the negotiation process, Mr Heald said the government will aim to ensure that what is finally agreed ‘respects national competence, limits any impacts on domestic law and minimises any additional burdens on the courts and the authorities that will use the new regulation’.
