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A bitter ordeal awaits families post-Brexit

Family proceedings are likely to be lengthier and costlier than ever, and Brexit might just make it worse for separating parents, writes Victoria Harrison

Mum is Polish, Dad is Hungarian and the family lives in the UK. Which country’s courts decide the children’s future if the parents separate and cannot agree the issue? EU apparatchiks back in 2003, devised a piece of EU law known as 'Brussels II revised' to settle this issue between EU countries. It says the courts of the country where the child is 'habitually resident' should decide. Unfortunately, the application of that principle is not always straightforward, and that is before we have even mentioned Brexit.

In GM v KZ, a Polish-Hungarian couple with two children had married and lived in the UK since 2012. During 2016 the mother took their two children to Poland.  Whilst there, she told the father she wanted a divorce and submitted an application to the Polish courts seeking custody of the children.

The Polish court dismissed her application saying that the children were habitually resident in England They had only been resident in Poland for a matter of days. ‘Brussels II’ seemed to be working.

The father then commenced proceedings in England and a judge here ordered that the children should live with him. The mother, unhappy with this, started new proceedings in Poland. Suddenly things stopped being simple.

For reasons that are unclear, the Polish court performed a U-turn against its previous decision: it decided it had jurisdiction after all and ordered that the children should live with the mother. The family was left with competing and inconsistent judgements from two EU countries. The children remained in legal limbo (and in Poland) over the next 16 months whilst the parents pursued a protracted fight over which country should decide the issue.

On 14 November 2017, Mr Justice Mostyn, sitting in the Family Court in England and Wales, finally brought clarity. He ruled that the English courts had had jurisdiction from the outset on the basis of habitual residence. Mostyn has ordered the mother to return the children to England by 15 December 2017 so that the English Court can decide their long-term arrangements.

GM v KZ shows how arguments about jurisdiction have the potential to be a fiercely fought and lengthy prequel to the substantive issue.

Brexit is not going to help matters. The UK Government’s EU Withdrawal Bill (which exits the EU but brings the existing body of EU law onto the UK statute books unchanged) might appear to provide a seamless path to Brexit. But Brexit is not so easily put to bed.  Jurisdictional rules rely on reciprocity: both countries must agree on when they rather than the other country should have jurisdiction for the rules to work. The UK can legislate as unambiguously as it likes that it will continue to have jurisdiction in the same circumstances as currently, but this says nothing about what the EU’s stance will be.

In the case of international children disputes, it so happens that there is an instrument (The Hague Convention 1996) which pre-dates Brussels II, which both the UK and EU signed up to. This is available to fall back on after the UK exits the EU and means the habitual residence of the child will continue to be the primary factor.

In other areas of family law, however, things are less clear.  In divorce proceedings, for example, Brussels II says that a divorce petition filed first shall have precedence over a divorce petition filed later in another EU country. How should the UK bring this rule onto its statute books? The UK could continue to cede jurisdiction where an earlier divorce petition has been filed in another EU country, but other EU countries will not be obliged to show similar deference towards the UK. If the UK does not want a one-sided solution, it can adopt the standard approach to non-EU countries where jurisdiction is fought out on the basis of 'forum non conveniens' (i.e. which is the most suitable jurisdiction?). Cue more hard-fought, lengthy and costly disputes which distract from the substantive issue.

This is one 'divorce bill' that has received little attention so far.

Victoria Harrison is an associate in Withers' Family Law team