A Brief Look at Children and Family Law Post-Brexit — Sima Najma


It’s now January 2021 and, as well as being a New Year, we are no longer a part of the EU. That means that the transition period has ended, EU regulations and rules no longer apply to our country, and Great Britain is no longer one of the EU Member States.

There’s been an awful lot of discussion, TV and press coverage, and general discussion around the post-Brexit problems of how best to manage, or mitigate, the possible economic loss of leaving the internal EU market. However, there seems to have been little to no air-time devoted by any of the national press agencies to the discussion of children and family law post-Brexit.

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A Brief Look at Children and Family Law Post-Brexit

As one of the direct consequences of no internal European borders for the past few decades, that free movement of people within and around the EU member states has resulted in entire generations forming families and relationships across international borders. To put it another way, millions of UK resident children have parents and extended family spread across the EU.

While there is still considerable uncertainty, particularly amongst members of the public, about the future of all types of international law post-Brexit, it does seem as though one area of law which has received next to no attention, is the impact of Brexit on those children with European connections/families who are in need of protection, or some form of intervention, by the state.

Within the EU, when there is a need for a court ruling to determine the future of a child with European connections, there is an EU regulation — Brussels IIa — which governs matters relating to parental responsibility and guides the courts on consistent decision making across the EU.

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A Brief Look at Children and Family Law Post-Brexit

In terms of what it actually does, Brussels IIa ensures that care proceedings that involve a child with European connections are heard in the correct fashion by the court and that protective orders in relation to children can be recognised by all, consistent, and enforceable across the whole of the EU.

Brussels IIa obviously provides a consistent and vital framework for cross-border cooperation in children’s case matters between member states which can, for example, enable family members across the whole of the EU to be assessed as potentially suitable carers for a child, as well as facilitating the exchange of information between the relevant authorities to protect those children who need it the most.

However, if we’re no longer part of the EU, and EU laws no longer apply in the UK, what does that mean for children cases moving forward? After all, some of which may be heavily reliant upon EU laws and, as discussed above, involve European family members/possible carers?

There’s some good news here at least. If your case is already underway, and has been issued, your case will be heard in accordance with current EU laws and regulations — that is to say, in a manner exactly as if we had never left the EU.

So if your children’s case is already underway, then quite simply, nothing changes post 31 December 2020, even though Britain is now technically no longer one of the EU Countries.

Providing that there are no material changes to your ongoing proceedings — i.e. it relates to the same cause of action and remains between the same parties — and was begun in the court of an EU Member State, or here in the UK (‘lis pendens’ rule — latin for ‘lawsuit pending’), before the end of the transition period then those same EU laws as before (Brussels IIa) will govern your case until its end.

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A Brief Look at Children and Family Law Post-Brexit

Moving forward of course, as new cases begin, there’s been a lot of confusion as to what laws will ultimately apply, and one area of critical concern to parents will be the application of laws in matters of parental responsibility (custody of children) and the placement of children.

For cases that relate to child protection matters and/or parental responsibility, if your case begins (or is issued) AFTER the end of the UK’s transition period (i.e. now!) the 1996 Hague Convention will apply to all cases between the UK and the EU Member States instead of the more recent Brussels IIa which had previously governed in matters of European Children’s Law.

Although there are a few differences between the 1996 Hague Convention and Brussels IIa, those differences mostly relate to residency and jurisdiction and should not prove to effect major changes to your case — although of course, your Barrister will advise you further.

The UK Government guidance on Children Cases is laid out clearly for readers to see that, in matters of parental responsibility hearings, and in placement of children hearings, the above procedures will be followed in all cases. Central Authorities across the UK and EU have given careful thought to the ongoing protective measures of children, and although cases involving children are always worrying and stressful, at least you can be assured that the right laws will continue to apply to assist you.