Peers in further alert over no-deal Brexit consequences for family cases

A “worrying level of complacency” and lack of clarity exists in the UK Government over the consequences for family cases of a no-deal Brexit, according to the House of Lords EU Justice Subcommittee.

The committee has written to David Gauke, the Lord Chancellor and Secretary of State for Justice, warning the Government again that without alternatives in place for civil justice by the time the UK leaves the EU, there would be “great uncertainty for UK businesses and citizens”.

As the likelihood of no-deal increases, the committee is concerned by the Government’s lack of clarity. The advice provided so far, including the recent Government technical note "Handling civil legal cases that involve EU countries if there’s no Brexit deal", amounts in its view to little more than a repeated suggestion that people should seek legal advice.

The committee has asked the Government to respond regarding four main points:

• The Withdrawal Agreement should make explicitly clear that it will encompass the rules that apply in international child abduction cases, and not be subject to the jurisdiction of individual countries.
• The current plan for EU cooperation after Brexit is far too vague and much more detail is needed, particularly regarding family law – simply advising people to seek legal advice is inadequate.
• The committee was troubled by minister Lucy Frazer QC MP’s lack of clarity regarding the UK’s post-Brexit membership of the Lugano Convention, which undermined its confidence in the Ministry of Justice’s preparation for this issue. It is asking what steps the Government has taken to secure the UK’s participation in the Lugano Convention, and what the contingency plans are.
• In the event of a no-deal, what will be done to address the considerable individual expense and inconvenience for litigants, and the resource implications for a family law system already under considerable pressure?

A letter from Mr Gauke last month stated that the Government's "broad approach" would be to repeal most of the existing civil judicial cooperation rules "and instead use the domestic rules which each UK legal jurisdiction applies in relation to non-EU countries", along with existing international agreements. Draft secondary legislation had been published covering choice of court agreements, preserving the rules of the 2005 Hague Convention, and international recovery of maintenance (2007 Hague Convention), and more would follow.

The committee's reply stated that the technical note "has not alleviated our concerns".

Chairman of the committee, Baroness Kennedy of the Shaws commented: "The Government needs to wake up to the reality of what having no answers on family justice will mean after Brexit. The uncertainty ultimately leaves vulnerable children as the victims.

"Our evidence sessions, and the Government’s responses to our report have done nothing but make the committee more concerned. With the deadline for a Brexit deal looming, the need for clarity is getting more and more urgent."