Brexit: Children of Divorcing Couples At Risk

Children of divorcing parents could be caught up in a judicial war if the EU and Britain fail to reach an amicable legal agreement on Brexit.

The fear is that when the UK leaves the European legal jurisdiction children caught in the middle of custody disputes between parents could be plunged into a legal limbo as European and British courts potentially issue rival judgments.

If the EU does not agree to UK demands to replicate existing rules – a situation not enjoyed by any other non-EU country – a British parent would be in a substantially weaker legal position if their European partner took a child to their home country without permission.

The potential for cross-border tug-of-love battles between warring parents emerged as officials from the Department of Justice and the Brexit Department set out plans for a “cross-border civil judicial cooperation framework.”

The officials were asked what would happen in a hard Brexit “no-deal” scenario if a British mother with a French husband saw her husband take their child to France and a British court said the child should return to the UK.

One official said the situation would be difficult. “If we don’t have a future agreement of the type we are proposing here (and) we’ve left the EU, under those circumstances we’d be looking at whether there are any other international agreements that govern child abduction,” he said.

A second negotiating official said the danger was losing the level of cooperation between judicial systems that goes on within the EU. “The thing you get at the moment you wouldn’t get under alternatives is a discussion between the courts. In that scenario it would have to be a discussion between the French courts and British courts as to what’s going on with that particular child.”

“No Deal” Means Court Rift

“That wouldn’t happen under the Hague (Abduction) Convention. What we are saying is there are a number of international agreements, many of which pre-date the EU’s arrangements, but they are not as sophisticated, not so effective. It would be much more difficult. There are a range of time limits that come with the EU measures which aren’t necessarily there for some of the other agreements we’re talking about, like the Hague Convention.”

Brexit Secretary David Davis has written that he wants to see the European Court of Justice having “no direct jurisdiction” in the UK, a phrase that was repeated in the British position document on legal affairs and Brexit.

Yet while British Government said it wanted “continued close and comprehensive civil cooperation” after Brexit, there was little detail about how that relationship would exist in practice.

Labour MP Wes Streeting, a supporter of the anti-Brexit group Open Britain, claimed that the lack of explanation about how such cooperation could be achieved revealed the Government’s hypocrisy on the issue.

“It is mind boggling,” he said. “It is they, not the EU, who have said repeatedly that no deal is better than a bad deal. And yet now they admit that a Brexit with no deal on judicial cooperation could put British children into legal limbo. Ministers need to drop their absurd rhetoric about ‘no deal’ and focus on negotiating an agreement with the EU that guarantees British families and children will not lose their rights and protections as a result of Brexit.”

Liberal Democrat Brexit spokesman Tom Brake criticised the “vagueness” of the Government’s statements on post-Brexit judicial cooperation and said that “even Brussels must have had enough of this waffle by now.”

Bemoaning the revelation that it would be potentially harder to return abducted children to the UK, Brake said “it exposes the reality of a ‘no deal’ Brexit and puts abducted children at greater risk and plunges families into uncertainty.”

 

by Bob Graham

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