Abducted children caught up in “tug of love” divorce cases could be left in “legal limbo” after Brexit, politicians and lawyers have warned.
They were responding to a Whitehall policy paper published last week on a framework for “civil judicial co-operation” on cross-border commerce, trade and family relationships.
The paper says that the UK wants to incorporate existing agreements to provide a “coherent legal framework” for British and EU businesses to trade and invest across borders, and support the protection of individual and family rights in cross-border disputes”.
While that aim was welcomed, Wes Streeting, the Labour MP and supporter of the Open Britain campaign, warned that delays on a deal – or the possibility of there being no deal at all – could put British children into legal limbo.
Tom Brake, the Lib-Dem Brexit spokesman, said that the policy paper “exposes the reality of a no deal Brexit – abducted children at greater risk and families plunged into uncertainty”.
Family lawyers agreed that there must be a deal if families and children were not to be affected. Daniel Eames of Resolution, the association of family lawyers, said that close co-operation with the EU on family law matters was vital.
Without reciprocal rules on EU-UK cases, there could be on legal certainty “with all the ensuing complications, delays and potential costs for families and children or local authorities undertaking their child protection function,” Eames said.
The government’s paper does not outline what happens while the dispute resolution system is negotiated, which "has the potential to leave families and children in complete legal limbo in cross-border cases while the government seeks to negotiate a bespoke arrangement with 27 other EU states,” he added.
Joanna Farrands, a partner at the Surrey law firm Barlow Robbins, said that abducted children were protected under EU regulations that provided for the speedy return of children. After Brexit, if that no longer applied, parents would have to resort to alternative treaties such as the Hague Convention, which does not have the same time limits, she said. It would be more difficult to transfer cases between the UK and different EU countries, increasing the complexity and scope for delays.
David Lidington, the justice secretary, agreed that current arrangements would end when Britain left the EU but insisted that we would continue to have an arrangement and the best outcome would be close cooperation on civil judicial matters, similar to the present system.
“At the moment we’ve a got a good, effective system of EU law that says where there is a cross-border dispute – over child custody, over divorce, over consumer rights – this is the procedure for deciding which country’s courts are responsible for sorting it out,” he said.
Claire Wood, family law partner at Kingsley Napley, welcomed the proposals but said that uncertainty as to how the law would work after Brexit was putting international families under pressure. “Family lawyers are very concerned how divorce, maintenance and children disputes will work post-Brexit for international families with interests in the EU and the UK. We live in a world where people regularly relocate for work purposes and family reasons,” she said.