Notes on speech of Lady Sherlock in House of Lords
Extract from conclusion to speech of Lady Sherlock in House of Lords debate on EU withdrawal on 31 January 2017. The numbering is mine. Comments appear below each paragraph:
Procedure and European Court of Justice
1 What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.
The procedural point cannot be stressed too strongly. Each EU country keeps its own cultural roots in family law. No one tells the UK it must change its primitive adoption laws; nor dictates to any EU catholic country which may have different bases for dissolution of marriage. UK money distribution remains its own.
That said the primacy of children’s welfare in any decisions is one adopted by EU law and re-enforced by the European Court Neulinger and Shuruk v Switzerland Application No 41615/07  1 FLR 122, ECtHR).
A bespoke arrangement
2 Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.
‘Slow and difficult’ is not an answer. We are here today with ‘exit day’ a matter of months away; so for the sake of the families and children concerned it must be dealt with by 2019. The opposing Brexit army abetted by MPs on both sides of the Commons, is advancing. Family lawyers cannot just say: ‘wait, we aren’t ready to fight’. We just have to work harder to prepare battle positions: ie a fresh Brussels IIA.
The ‘bespoke’ solution sounds a little like the second option put forward by family lawyers in reply to Brexit (October 2017). If nothing is ‘bespoken’, separating families and their children will fall off the famous Brexit cliff edge; and this is not for lack of warning. The problems families will suffer as outlined in the earlier part of the speech were predicted by the Supreme Court over a year ago in R (Miller & anor) v Secretary of State for Exiting the European Union  UKSC 5,  2 WLR 583 at para .
The painful fact of the matter is that unless EU and the Tories agree to keep such instruments as Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (‘Brussels IIA’) on hold families like the one in the earlier part of Lady Sherlock’s will fall into a Brexit void where few hold will be barred between competing jurisdictions.
The Ministry of Justice and practising lawyers must get their heads together with individual jurisdictions to work out what reciprocity can be agreed following EU withdrawal and to agree how this is to be enforced. For the sake of the families and their children concerned, surely those who support EU withdrawal can agree that the European Court of Justice continue to have jurisdiction in those few cases where a neutral arbiter is needed?
3 I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.
4 I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.
The issues over children go must wider than anti-trafficking (crucial though this is). EU law is much more firm and clear – though still not always followed by UK law (as I explain ). UK is bound by eg Charter of Fundamental Rights of the European Union (2000/C 364/01), which the Government proposes to ditch. This gives children rights to express their views which still need clearer procedural expression in English and Welsh law. Outside EU there is a real risk that children’s rights will again suffer. The massive advances of Children Act 1989 twenty-five years later and without the impetus of EU law reform look tawdry in the area of children rights.
Without Brussels IIA children in care will find themselves caught in a jurisdictional cross-fire where parents leave UK, and children are in care in England and Wales (Brussels IIA Art 15: there are a number of recent reported decisions on this see eg Redbridge LBC v D, E, F and G (Children : Art 15 – transfer of the proceedings)  EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge).
Agenda for EU withdrawal
If EU withdrawal is to go ahead
- Lawyers and the Ministry of Justice must urgently engage with EU judges (through a representative body, or in each state)
- Children law and children’s rights to be heard must be made more clear preferably by statute.
Without this families and children will suffer.