Opinion: Janys M Scott

Family law is the point where Brexit becomes personal. Families who have taken advantage of free movement around Europe are at risk of waking up one morning and finding their problems much more difficult and expensive to resolve.

Europe has not touched the substance of Scottish family law. Sheriff courts and the Court of Session, in common with all other UK courts, apply their own national law to family problems. What European law has done is to bring certainty to the question of which court should make a decision about divorce and about children. European regulations have also provided for enforcement of orders relating to children and orders for financial support.

The arrangement is based on mutuality. There has, in effect, been agreement between the member states about matters of procedure and the effect of orders. And there has been a growing trust between the different courts and their judges.

It is a major difficulty of the EU (Withdrawal) Bill that it would bind Scottish courts to the existing procedures, without any European court being bound. The bill cannot create the reciprocity upon which the European family law arrangements are based.

Take one example. If a Scottish couple separate and one goes off to live in France, at some point the French court will have jurisdiction under its own rules to consider divorce proceedings. The Scottish court will also have jurisdiction. The current rule is that the divorce will be dealt with in the action that starts first. If the European rules are unilaterally imposed in Scotland, then if an action is started first in France, the Scottish court will be prevented from considering the divorce. If, on the other hand, proceedings are started in Scotland, that will not stop the French court from hearing the divorce. There will be conflicting proceedings ongoing at the same time and a risk of conflicting decisions.

If that is difficult for the adults, it is worse for the children. They, too, can be the subject of conflicting actions. And if a contact order is made in another part of Europe the Scottish authorities would be bound to give immediate enforcement to that order, but a Scottish order for contact need not be enforced automatically in the other European state. In this case, the Withdrawal Bill does the exact opposite of what most people expect.

There are other international treaties relating to children, and in particular the Hague Parental Responsibility Convention of 1996, which may help, but they are less clear and decisive. Also, the UK is currently signed up to the 1996 Hague Convention only as a member of the EU. A separate ratification will have to be negotiated. 

The Advocates’ Family Law Association has thrown its weight behind an initiative from the Family Law Bar Association, Resolution in England and the International Academy of Family Lawyers. This is a plea to the UK Government to maintain the current reciprocal arrangements between the UK and the other EU member states, at least for the duration of any transitional period, and potentially in the longer term. 

In theory, the UK could negotiate a bespoke arrangement with the EU, but that is unlikely to occur before 2019 when the UK will leave the EU. It would also involve reinventing many of the current arrangements, but without any court to assist with an internationally binding interpretation.

In the area of family law, the Court of Justice of the European Union has no jurisdiction in relation to substantive legal issues. It is concerned only with the interpretation of procedural matters. Its role is essentially facilitative and helpful. It is difficult to see the benefit for Scotland, or the rest of the UK, of being cut off from a court that hears from different states and determines issues of procedure in the special area of family law.

Family law deserves some serious attention if Brexit is not to result in confusion and expense for families who find themselves stretched between Scotland and other European states when the misfortune of breakup strikes.