International family law post-Brexit: a cliff edge? Reflecting on the Brussells IIbis Recast

Updated: Jun 25

Brexit has sparked an interesting discussion of law and policy on the regulation of international family matters. One school of thought claims there is no cliff edge, after the striking down of the Brussels IIa Regulation in the UK, because the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Convention) is reliable and fit for purpose.[1]


Others give good accounts of the dangers associated with moving away from the safety net of the Brussels IIa Regulation, which acted as a comprehensive and all-inclusive instrument for international family matters and judicial cooperation among EU courts. The prospective coming into force of Brussel IIa Recast in June 2022 is bound to ignite further debate. Is the 1996 Convention up to scratch compared to the Recast Regulation? The answer to this question will answer whether, in reality, there is a cliff edge or not.


Turning to the changes of the Recast Regulation, two fundamental modifications concern: the voice of the child, and the abolition of the exequatur. Under Article 38 of the Recast Regulation, it is no longer possible to refuse recognition on grounds that the child has not been given the opportunity to be heard.[2] The abolition of the present Article 23(b) of the Brussels IIa Regulation must be read in conjunction with Article 20 of the Recast Regulation, which introduces an express obligation on states to ‘ensure that a child who is capable of forming his or her own views is given the genuine and adequate opportunity to express those views freely during the proceedings.'[3] The courts of the Member States will, further, be obliged to consider the child's views in accordance with its age and maturity and document the process in the decision.[4]


Article 20 is the first of its kind and a welcome change to the Brussels system.[5] However, the Recast Articles might be displacing the protection of the child as the highest priority by relying excessively on mutual trust.[6] Whilst Article 20 is apt to improve the position of the child in parental responsibility proceedings, eliminating it as a base for non-recognition under Article 38 removes a safety valve that was praised and utilised by British courts.


For instance, in In the Matter of D (A Child) (International Recognition), Lord Justice Briggs refers explicitly to Article 23(b) of the Brussels IIa Regulation describing it as an 'exception to the core principle of mutual recognition' that was designed to remedy those cases where none or an inadequate opportunity to be heard was given to the child; 'a violation of a fundamental principle of the procedure of [the] courts [of England and Wales].'[7] Similarly, in Casey v Cervi, Ms Justice Roberts notes that the child's opportunity to be heard is 'a fundamental principle of procedure under English law' that is 'emphasised in Brussels II Revised (…) as a stand-alone ground of non-recognition and enforcement.'[8]


An added strain to the effective operation of Article 20 might be that it allows for each Member State to determine an appropriate procedure according to its domestic law individually, which has proven problematic with the analogous paragraph under Art 11 of the Brussels IIa.[9] In practice, the disparity of what constitutes an adequate opportunity is bound to be great, as has been previously proven by case law and research.[10] By leaving the standard undefined, the Recast Regulation fuels the debate and creates uncertainty.[11] Consequently, the shifting to the 1996 Convention, and the exclusion from the Recast Regulation, result in UK courts being able to safeguard what is considered a fundamental right under English[12] and Scottish[13] law: the child's opportunity to be heard.


A welcome change in the Recast Regulation is the abolition of the exequatur for parental responsibility matters, which grants automatic recognition of measures and simplifies the enforcement procedure for Member States.[14] In practice, the abolition of the exequatur does not have far-reaching effects as it only eliminates ‘a stage in the process rather than the grounds for refusal of enforcement,’ in analogous fashion to the Brussels I Recast Regulation.[15] The abolition of the exequatur might not be revolutionising, but the Recast Regulation contains one hurdle less than the current Brussels IIa for international families. Reducing hurdles, no matter their legal novelty, reduces the costs and time involved in international litigations and should not be discounted.


Due to Brexit, the UK will stop benefitting from the swift system of the Recast Regulation, and parties will have to rely on Articles 26-28 of the 1997 Convention for the recognition and enforcement of parental responsibility measures. The mechanism is generally considered to be working satisfactorily, and no review is permitted on the merits of a case, save for Article 23(b).[16] However, under Article 26(2), each Contracting State will have in place ‘a simple and rapid procedure’ to apply to the declaration of enforceability or registration. Since neither the time limit nor the procedure are not defined, reliance on domestic law of the Contracting States is significant.[17]


Whilst the shifting back to the 1996 Convention does not mean severe consequences, it will result in a ‘downgrading’ of UK decisions on parental responsibility when these are to be enforced in the EU Member States.[18] Ultimately, the differences between the 1996 Convention and the Recast Regulation reflect different legal philosophies (and consequently, regulatory approaches) than textual differences, which are irreconcilable and likely to impact international families connected to the UK. In this light, whilst there might not be a ‘cliff edge,’ there is certainly an ‘edge’ that will be felt in the post-Brexit era, in the form of adapting to a new legal regime and accepting its benefits and shortcomings.



This post was prepared in kind collaboration with Dr. Katarina Trimmings, Senior Lecturer in Private International Law of Family Law at the University of Aberdeen, to whom the author is thankful.



Endnotes

[1] Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, hereafter: 1997 Convention. [2] Article 38, Recast Regulation. [3] Art 20 Recast Regulation. [4] Ibid. [5] Paul Beaumont, ‘Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations’ [2017] CFLQ 213, 217 [6] Ibid. [7] In the Matter of D (A Child) (International Recognition) [2016] EWCA Civ 12 per Lord Justice Briggs at [108]. [8] Casey v Cervi [2017] EWHC 1669 (Fam) per Mrs Justice Roberts at [47]. [9] Recital 39 Recast Regulation.; Helen Blackburn and Marianna Michaelides, ‘The advent of Brussels II bis Recast’ [2019] IFL 252, 253.; Sladana Aras Kramar, 'The Voice of the Child: Are the Procedural Rights of the Child Better Protected in the New Brussels II Regulation?' (2020) 3 Open J Legal Stud 87, 92. [10]Case C-491/10 PPU Aguirre Zarraga v Pelz, [2010] ECR I-14247; Paul Beau9mont, Lara Walker and Jayne Holliday, ‘Conflicts of EU Courts on Child Abduction: Country Reports 2016’ (University of Aberdeen Centre for Private International Law Working Paper No. 2016/1) accessed 22 April 2021. [11] Sladana Aras Kramar, 'The Voice of the Child: Are the Procedural Rights of the Child Better Protected in the New Brussels II Regulation?' (2020) 3 Open J Legal Stud 87, 92. [12] In the Matter of D (A Child) (International Recognition) [2016] EWCA Civ 12 at per Lord Justice Ryder at [44].; Casey v Cervi [2017] EWHC 1669 (Fam) per Ms Justice Roberts at [47]. [13] Section 3, Children (Scotland) Act 2020, asp 16. [14] Articles 27, 28 and 29 of the Brussels IIa Regulation were not transferred to the Recast Regulation. Helen Blackburn and Marianna Michaelides, ‘The advent of Brussels II bis Recast’ [2019] IFL 252, 254. [15] Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32.; Paul Beaumont and Lara Walker, ‘Recognition and enforcement of judgments in civil and commercial matters in the Brussels I Recast and some lessons from it and the recent Hague Conventions for the Hague Judgments Project’ (2015) 11(1) Journal of Private International Law 31, 34. [16] Article 27, 1996 Convention.; Paul Lagarde, ‘Explanatory Report on the 1996 HCCH Child Protection Convention’ (Proceedings of the Eighteenth Session (1996), tome II, Protection of children), [17] Paul Lagarde, ‘Explanatory Report on the 1996 HCCH Child Protection Convention’ (Proceedings of the Eighteenth Session (1996), tome II, Protection of children), [132] accessed 19 April 2021. [18] Anatol Dutta, ‘Brexit and international family law from a continental perspective’ [2017] CFLQ 199, 202.

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