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December 13, 2016updated 20 Dec 2016 12:03pm

What does Brexit mean for child ‘custody’?

By Spear's

Lauren Hall looks into parental responsibility and the impact of Brexit on where a child should live after divorce.

The government recently decided to support the European Commission’s proposal to revise European legislation on cross-border family disputes (the Brussels IIa Regulation/Brussels IIR) which covers matrimonial proceedings and other family matters.

Brussels IIR provides that orders relating to the personal responsibility of children made in one EU member state will be automatically recognised and enforced in another. It also decides which jurisdiction should determine important issues relating to personal responsibility, also providing rules for cross-border abductions. However, much improvement is needed in relation to the children return procedure and the enforcement of decisions. The government decided that despite Brexit, it still wanted to avoid the UK having an EU instrument if a new regulation was implemented beforehand. It was also felt that it was in the UK’s interest to influence negotiations on behalf of UK citizens living in other member states.

What happens now?

Parents of children who have been abducted to another member state have the protection of Brussels IIR to get their child returned. Similarly parents who have children living abroad have the security that any order made in the UK concerning child arrangements including how much time the child will spend with the parent left in the UK will be recognised and enforced in another EU state. This is particularly important as the UK will usually have lost jurisdiction over the child once they have moved to another state.  The free movement of people and the consequent increase of international families require uniform rules to harmonize cross border disputes about parental responsibility.

What could Brexit mean?

But what could Brexit really mean to parents locked in inter-jurisdictional battles over their children? There are international instruments such as Hague Convention 1996 on personal responsibility which will apply post-Brexit to transfers of the jurisdiction from the UK and EU MS. This assumes Brussels IIR will no longer apply to the UK and the Hague Convention will apply to all EU states and the UK.

On the issue of child abduction there is The Hague Convention 1980 which provides protection to parents who have had their child abducted. These conventions will have prominence post-Brexit but the EU measures adopted by the UK generally providing greater certainty on dispute outcomes. It may be difficult for the UK to achieve the same level of co-operation on jurisdiction and enforcement which currently exists at EU level.

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What should I do if this affects me?

This is an extremely complex area of law and the impact of Brexit and the loss of Brussels IIR legislation are unknown. Parents are likely to have less protection post-Brexit and this means that obtaining specialist legal advice is imperative.

Lauren Hall is a senior associate at Russell Cooke

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