My Lords, in moving Amendment 29 I shall speak also to Amendments 53, 120 and 336, all tabled in my name. In doing so, I should like to record my appreciation of the work done by the Brexit and Family Law group, especially the members of the Family Law Bar Association, Resolution and the International Academy of Family Lawyers who have worked so hard to produce expert briefing for the House.
At Second Reading I set out the problems facing international family law post Brexit. I have tabled these probing amendments specifically to give the Minister the opportunity to reassure the Committee that he understands the severity of the problems and tell us how the Government propose to take forward family law provisions within the UK after Brexit. I will spell out—as succinctly as I can, given the complexity of this issue—what the problems are, explain the only two ways I can think of in which the Government could deal with this, and invite the Minister to tell us in which direction they plan to take the country.
Amendment 336 simply clarifies what counts as family law for the purposes of this debate. It focuses on two main instruments, the first of which is Council Regulation No. 2201/2003, known as “Brussels II revised”, or “Brussels IIa” in the jargon. It deals with jurisdiction for divorce and issues about parental responsibility for children. As well as private law disputes about child arrangements within a family, it covers child abduction cases and public law disputes where local authorities seek child protection measures. The second is Council Regulation No. 4/2009, known as the maintenance regulation, which deals with child maintenance obligations and maintenance for the adults in a family. There are plenty of other important EU instruments that affect families, but because of time I will not go through them all.
Let me explain how the EU family law provisions named in Amendment 336 work. Unlike in other areas of law, each EU state makes and keeps its own family law, so that countries decide the terms of their own substantive family law. These EU family law provisions are really about procedure and they do three things, the first of which concerns jurisdiction. They provide a mechanism for deciding which country’s courts take precedence if cases are issued in two countries at the same time, thereby avoiding expensive parallel proceedings that could lead to contradictory decisions. The certainty and predictability make it easier for families to understand what will happen.
Number two is enforcement; that is, a court order for maintenance or child contact—or an injunction against harassment issued by an English court—can
be enforced in other EU states, and vice versa. Thirdly, there is co-operation between EU member states, for example the sharing of information to protect children, help locate people to make them pay maintenance or start proceedings across borders.
The Bill copies those EU provisions into UK domestic law, but the whole point of the regulations is that they will work on a reciprocal basis. When we leave the EU we will lose that reciprocal aspect. The Bill cannot solve that problem; in fact, it creates an additional one. By importing EU provisions, we do not change our substantive law but we do retain our obligations toward the judgments of other EU member states, without any guarantee of reciprocity. So we have a one-way street where the UK is obliged to apply current provisions but the EU 27 will not have to do the same for us. A Polish order to return an abducted child or enforce a contact order would be automatically enforceable in England, but the reverse would not be true. English orders might be enforceable using other international conventions, but those have different provisions and there would be a mismatch in the way decisions are treated. A British woman could be forced to stop her divorce case in the English courts if her husband had filed first in Germany, but the reverse would not be true. The couple could end up with cases running simultaneously in Birmingham and Berlin at vast expense and reaching contradictory decisions on maintenance with no certainty of enforcement. There are no other international conventions applicable across the EU to help in divorce cases. Lawyers will not know what to advise on how orders will be treated, and many families will not have the money to fight it out in court. Those who cannot afford advice will be lost.
I am afraid that, to complicate things further, these regulations are about to change. The EU is in the middle of renegotiating them: it is about to negotiate an update to Brussels IIa, creating a “Brussels IIa recast”, in the jargon. In October 2016, the UK decided to actively get involved by opting into the renegotiation of Brussels IIa, which is expected to conclude some time next year. The reforms aim, broadly, to improve return proceedings after a child is abducted by limiting the number of appeals and concentrating on certain courts—to enhance children’s rights and give children the chance to be heard in court—as well as making various other improvements, such as better co-ordination with the 1996 Hague Convention on Protection of Children. Those improvements are welcome, but they help us only if the recast provisions are complete before Brexit. If they are not—and they probably will not be—we will end up importing into our law provisions that will almost immediately be different from those from the EU, making it even harder to negotiate getting back any reciprocity.
A final challenge is that the UK contains a number of different jurisdictions—England and Wales, Scotland and Northern Ireland—all of which have different family law systems. We might come back to that later in the Bill. So that is the landscape at which Amendment 29 is directed. It invites Ministers to publish a report that outlines the way in which the rights afforded by EU family law will continue to operate in domestic law, what steps Ministers have taken to negotiate reciprocal arrangements between the UK and the
EU 27, and whether the rights of individuals have been weakened as a consequence. I hope that Ministers will accept the amendment, but for the report to be meaningful we need the Minister to answer a key question today: what is the Government’s vision for family law post Brexit? I will make it easier by making it a multiple-choice question, because I think there are only two choices. Option one is that we seek to retain the status quo as far as possible, permanently. The 2017 report of our Justice Sub-Committee of the European Union Committee—called Brexit: Justice for Families, Individuals and Businesses?—said that the three main EU regulations were,
“crucial to judicial cooperation in civil matters and reflect the UK’s influence and British legal culture”.
The report urges the Government to stay as close as possible to those rules when negotiating their post-Brexit position.
So the questions begin: is the Government’s goal to stick with the provisions of the EU family law regulations? If so, we will clearly need some sort of reciprocal arrangement with the EU, covering the EU 27, to make those provisions effective. Question two: are there negotiations with the EU, ongoing or planned, to discuss that issue—and, given how tight time is, when might those be expected to conclude? Question three: if the Brussels IIa recast is adopted by the EU after Brexit, do the Government intend to amend the provisions brought into our law to reflect the improvements brought about through the recast measure?
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Finally on option one, full reciprocity would almost certainly mean being bound by the European court and its decisions, because it is very unlikely that the EU 27 will operate these EU family law provisions on a reciprocal basis unless the court is the overall arbiter of any issues about their interpretation. However, given that the court is dealing here with only procedural questions and not substantive law, are the Government content to live with that? That is the question to which my probing Amendment 53 is directed.
That is option one—to try to stick with what we have. Option two is a bespoke arrangement. We could try to make our own deal with the EU, with a brand-new framework for family law co-operation. That would be slow and difficult and we would not be able to do it by 2019—but is that the Government’s preferred option, at least after transition? If so, could the Minister tell us what the parameters of that deal would be? Will they seek a new arrangement that stays close to the EU provisions, or a whole new deal? Since reciprocity will still be needed, what form of judicial oversight will there be and what will happen in the interim while the deal is being negotiated? Will we seek to retain the current EU provisions with the necessary European court oversight, even if just temporarily? What do the Government propose to do about the asymmetry in obligations I mentioned between us relying on the other international conventions and the EU 27? If we do not retain the current EU provisions, how will Ministers deal with the gaps this would leave after Brexit in which there are no equivalent international
conventions? There are no domestic violence protection measures in place and there are no practical alternatives on divorce.
On maintenance and children cases, Ministers have signalled that we will continue to participate in the Hague conventions that already apply to us and that we may seek to continue to participate in the 2007 Lugano convention on maintenance. But Hague and Lugano do not offer the same level of protection and they contain narrower or less effective provisions than we have now. There are also questions of applicability, and it is to those that my Amendment 120 is directed.