EU law and family breakdown: where are we today?
Where is family law today in relation to EU withdrawal? Resolution (a group of family lawyers) and the Law Society together provide information – not ‘advice’ – on were family law now appears to be as EU withdrawal approaches; and urges lawyers – or their clients (see Davy-Cheisman (below)) to seek advice from EU lawyers if they want to be able to advise their UK clients on family breakdown issues (divorce, money and children). In Joint Resolution and Law Society note to family lawyers in England and Wales of practical recommendations in the circumstances of no deal on EU exit (January 2019) (the ‘joint note’) they work on the assumption – inevitable now, perhaps? – that UK will leave the EU. I come back to the possible consequences of seeking advice from, and relying upon, advice from third parties.
An earlier short paper from the Law Society, No-deal Brexit guidance: Family law (8 November 2018) aimed to ‘highlight the changes that will occur’ in family law ‘if’ UK leaves without a deal. It emphases what will remain part of UK domestic law – eg the Hague Conventions. EU instruments based on ‘mutual recognition’ (eg Council Regulation (EC) No 2201/2003 ‘Brussels II Revised’) will go.
What neither paper acknowledges is that the ‘deal’ or ‘no deal’ point is largely irrelevant for family lawyers. EU family law legislation is almost invariably invoked between two people one of whom no longer lives in the UK and the other is in a EU country. Brussels II Revised, by definition, depends on reciprocity between EU and UK jurisdictions. This was obvious even before the referendum. On whatever terms – May, Corbyn or whatever – the UK leaves, till there is agreement with each EU country agreed also by the UK Parliament then the terms of any deal are unlikely to affect family law save with specific arrangements with each country for reciprocity.
Brussels II Revised: Miller and the Supreme Court
The problem with reciprocity and family law was specifically highlighted by the Supreme Court two years ago. In R (Miller & anor) v Secretary of State for Exiting the European Union  UKSC 5,  2 WLR 583 the majority said:
 … Our domestic law will change as a result of the United Kingdom ceasing to be party to [EU Treaties], and rights enjoyed by UK residents granted through EU law will be affected…. The Divisional Court identified three categories of right:
(1) Rights capable of replication in UK law;
(2) Rights derived by UK citizens from EU law in other member states;
(3) Rights of participation in EU institutions that could not be replicated in UK law….
 … Some rights falling within one category may be closely linked with rights [in] another category. For example, the rights under [“Brussels II Revised”], would be undermined if a domestic judgment governing the residence of a child could not be enforced outside the UK.
Despite the clear indications of Miller from the Supreme Court in October 2017 in Brexit and Family Law by FLBA, IAFL and Resolution the then authors took a view on the ‘Options’ they would recommend (without, as far as I can see, a glance at Miller). The most likely outcome – what is happening now – was the one which the authors would not recommend to legislators as a way forward: what they called ‘Domestication without full reciprocity’ (Option 2). ‘This (they said at p 15) is completely unsatisfactory…. If we do not have a reciprocal arrangement with the EU, there is simply no point in retaining the majority of the EU instruments which work on a mutually applicable basis.’
Yes, but that is what was bound to happen save with extensive discussions between legislators in individual jurisdictions and English government; and – no surprises – that is what will happen as things stand now. What the paper described as a ‘one way street’ was as noted by the Supreme Court (probably at Lady Hale’s prompting) and is what is happening now.
Milk has been spilt by insouciant family lawyers, perhaps; but that is for the historians. Where now? Detailed legislation is being worked out. The draft Jurisdiction and Judgements (Family) (Amendments etc) (EU exit) Regulations 2019 awaits positive resolution approval by MPs (European Union (Withdrawal) Act Sch 7 para 1(1)). It covers a series of mostly minor amendments to statutes and statutory instruments including transitional arrangement for existing cases (draft reg 8). There will be more; and, as we know, there is likely to be a variety of Henry VIII orders as time goes on and cracks appear in the legislative cover.
Professional negligence and the Brexit lawyer: Davy-Cheisman
As appropriate the common law will fill the gaps in the EU withdrawal legislative scheme. By definition (unless they are legally aided) this will be at expense to the parties to family proceedings. Few will relish their expenditure; and some will look for a scape-goat, beyond the politicians and those who have framed the legislation. One of those who may be in a negligence firing line for a client who has suffered loss may be the client’s lawyer. Can this be mitigated?
There are six (at least) references to English lawyers seeking advice from ‘local lawyers’ in the joint note. If such advice is taken does this leave the English lawyer m open to any possibility of a claim if anything does go wrong? The law on solicitors relying on another lawyer – counsel – is dealt with in Davy-Chiesman v Davy-Chiesman  Fam 48,  1 WLR 291. This is in the case of domestic law. A solicitor must not (per the Times law report) ‘blindly rely on counsel’ (quoting from May LJ in the Court of Appeal judgment).
Should Davy-Cheisman cause alarm bells to ring? If a UK lawyer relies on a foreign lawyer and relies on their advice, this has the makings of a Davy-Cheisman trap. A difference is the Davy-Cheisman advice from counsel is on domestic law. EU law advice to family law clients is on foreign law. But if the UK lawyer relies on a foreign lawyer’s advice and the client suffers loss because it proves to be negligent, a question remains as to whether the English lawyer is in anyway implicated. (I have raised this question with both authors of the joint note and have yet to receive any response. In Davey-Cheisman the advising barrister was not involved in the claim against the solicitor by legal aid authorities in the Court of Appeal; but the solicitor was liable in effect for the claimant wife’s costs.)
A first step, I should have thought, is to look at the terms of any retainer of the English lawyer and of the local adviser. If the client’s retainer is direct with the local lawyer that must be a start. The client’s advice on the law of the country in question will be from the lawyer on the ground. If the English lawyer takes responsibility for a brief then, unless that is prepared negligently, again it will be for the foreign lawyer to advise and for the English lawyer to make it clear that s/he distances him/herself from that advice, in the sense that (anticipating a Davy-Cheisman claim) the English lawyer advises only on English law. The English lawyer cannot advice on the law – as distinct from domestic procedure – on which supplemental advice is being sought by the client. If the English lawyer adopts the advice Davy-Cheisman problems may arise.
If any action here proceeds on the basis of foreign law advice, a form of words will have to be found to avoid any Davy-Cheisman liability.