Blog: Family law to suffer under Brexit



Rachael Kelsey

Rachael Kelsey gives Holyrood’s Justice Committee some food for thought on how the Brexit legislation will affect family law in Scotland.

As the House of Lords embarks on the second reading of the European Union (Withdrawal) Bill today – with 195 Peers having signed up to speak, it is heartening to see the Scottish Parliament’s Justice Committee start its own examination of the implications of the bill for family law in Scotland today.

There is not a single advantage in the bill for UK citizens who have a family law dispute. People in Scotland are going to be disadvantaged further, given the terms of the devolved settlement.

The bill as currently framed brings the corpus of EU law into our domestic law on exit day (30th March 2019). “EU law” in the family law field is not the same as some other areas of law – family “EU law” has never changed the substantive law in Scotland, but rather it has introduced harmonised, private international law rules that provide common jurisdictional, recognition and enforcement provisions and enable cooperation between states in family law matters.

Two of the respects in which Scots will see their position deteriorate are:

1    Reciprocity: we will lose the right to rely on the reciprocal arrangements that currently exist within the EU.

For example, we will no longer have common grounds for jurisdiction which will lead to an increase in parallel proceedings and we won’t be able to rely on our European neighbours to recognise and enforce judgements from our courts. This is while we will still be bound to adhere to the jurisdiction rules which give primacy to EU proceedings raised first and our domestic law will afford recognition and the opportunity for enforcement of EU orders that our orders will not enjoy in the EU27; and

2    Divergence and Atrophication: as EU law continues to develop, ours will diverge and atrophy. This divergence is likely to happen within months of Exit day, as the main provisions that deal with jurisdiction and recognition/enforcement in child matters (Brussels IIA) are due to be recast, probably in the summer of 2019. Our domestic law will be the old, less good provision, while the rest of the EU27 will enjoy the new, enhanced provision (it’s worth noting that the UK signed up to the changes in the Recast Regulation).

In addition, the provisions of the bill that relate to how we can alter the acquis of EU law are problematic from a Scottish family law perspective. Family law is one of the areas of law that was not reserved to Westminster, so, by definition is a matter for the Scottish Parliament – so who has power to alter the acquis? Say the Scottish Parliament decided it wanted to incorporate the Recast Regulation, or to go further and ‘peg’ all Scots family law to EU law in future, can they?

It has been suggested by some academic commentators that “there is nothing to fear”, because there is other international provision that Scots can rely upon (the Hague Conventions of 1970, 1980, 1996 and 2007). Leaving aside the rather troublesome issue that no guarantees can be made that we will be able to rely on them as we do now, post exit day, the bottom line, surely is that the Hague provision (if available) is less than the provision that Scots currently enjoy.

This is not academic – Scots are going to lose valuable rights. They face the prospect of prejudice, uncertainty, delay and expense. We need the Justice Committee to highlight what the impact of Brexit is going to mean to ordinary Scots going through family disputes. Power to their elbows.