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Civil and family law and Brexit: no clear plans?

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civil and family law, Brexit, no clear plans, EU Justice Sub-committee, EU regulations‘The government has not taken full account of the impact of their loss on UK law.’

The House of Lords EU Justice Sub-Committee has published its report into what alternative plans the government has to replace the loss of the European Union (EU) regulations which govern cooperation in civil and family law in the UK post-Brexit.

In the areas of civil and family law, EU regulations provide certainty on what jurisdiction should hear disputes and also allow for the automatic recognition and enforcement of judgments throughout the EU.

The report considers how the loss, post-Brexit, of this important EU legislation will affect future legal proceedings on issues including divorce; custody of children; medical negligence claims and employment disputes.

The EU regulations provide certainty, predictability and clarity about where legal disputes should be pursued and, also allow for the automatic recognition and enforcement of judgments throughout the EU.

These principles, underpinned by the jurisdiction of the Courts of Justice of the EU (CJEU), mean that businesses can engage with the Single Market and citizens can work, travel and live in Europe safe in the knowledge that when relations go wrong legal remedies are easily secured and enforced.

The key findings of the EU Justice Sub-Committee:

Beyond vague references to “other arrangements”, the Committee was unable to discern a clear government plan as to how the continued post-Brexit operation of these important regulations will be secured and conclude that the government has not taken full account of the impact of their loss on UK law.

The report calls on the government to publish a coherent plan for addressing the post-Brexit application of these regulations.

Two of these regulations operate in the area of family law. They address: divorce, parental responsibility and international child abduction.

The Committee are particularly concerned about the loss of these provisions for child abduction and heard evidence that a significant number of children in the UK could suffer serious consequences.

The report also concludes that to walk away from these two EU regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and the UK’s family law system; it would, ultimately, be an act of self-harm.

It is therefore imperative that the government secures adequate alternative arrangements, whether as part of a withdrawal agreement or under transitional arrangements.

The Committee heard clear and conclusive evidence: there is no means by which the reciprocal rules in the regulations can be replicated in the Great Repeal Bill. It is therefore imperative that the government secures adequate alternative arrangements, whether as part of a withdrawal agreement or under transitional arrangements.

The chair of the Committee, Baroness Kennedy of The Shaws, said: “Unless the government can agree a replacement of the existing rules on mutual recognition of judgments, there will be great uncertainty over access to justice for families, businesses and individuals.

“The Committee heard clear and conclusive evidence that there is no means by which the reciprocal rules currently in place can be replicated in the Great Repeal Bill.

“Domestic legislation can’t bind the other 27 member states.

“We therefore call on the government to secure adequate alternative arrangements, whether as part of a withdrawal agreement or a transitional deal.”

To read the full report, click here.

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