Summary of the roundtable discussion

On 6 March 2019 a select group of family lawyers came together in Resolution’s new offices to discuss the ‘mad riddle’ of Brexit, and the implications of a no deal scenario. Are there any positive possibilities on the horizon – the end of the EU Maintenance Regime perhaps? Or are we throwing away decades of careful co-operation, just as international elements of separation are on the rise?  The debate may be academic by the time you are reading this, but the issues are likely to be in play one way or another for years to come.

At the table: Resolution International Committee chair Daniel Eames, a partner at Clarke Willmott, chaired the proceedings. He was joined by Tim Scott QC, of 29 Bedford Row, representing the FLBA; Tim Amos QC, a barrister at Queen Elizabeth Building, representing the International Academy of Family Lawyers, and Eleri Jones, a barrister at 1GC Family Law and member of Resolution’s International Committee. Alongside them were three solicitors: Maria Wright, a member of the Resolution Brexit working party and a PhD candidate; Michael Wells-Greco, from Charles Russell Speechlys, who is a Resolution International Committee member and consultant lawyer to the Permanent Bureau of the Hague Conference on Private International Law; and Lucia Clark, a partner at Morton Fraser - dual-qualified in English and Scots law and a member of Resolution’s International Committee.

As chair of Resolution’s International Committee, Daniel Eames has been at the coalface of Resolution’s efforts to understand what Brexit – deal or no deal – might mean for family lawyers and their myriad clients. Resolution convened its own working group on Brexit, but also used its extensive connections with the Law Society, the ALC,the FLBA and the IAFL to formulate joined-up guidance and representations to government  and to try to map a coherent picture of the landscapes ahead according to the possible outcomes. One of the points Daniel stressed - perhaps to reassure his troops that the huge hours they had put in would not be rendered void by a sudden change in the politics – was that even if there is a deal, it may well be time-limited and so ‘we are putting in a lot of the groundwork now’. 

To date, Resolution and its allies have secured valuable changes to the Brexit SIs, and have made their voices heard. Daniel has also been impressed with the job done at the MoJ to prepare for a no deal scenario: of an error in the SI on sole domicile as a residual ground for jurisdiction, he says: ‘You can forgive them their oversights bearing in mind how much they have had to cover and deal with.’

The roundtable was organised around a number of scenarios, some utterly routine in the sense of what might walk through the office door, some more esoteric to demonstrate the complexities and difficulties of the potential new regimes. 

Daniel opened the debate proper by setting out its terms: ‘All we can really talk about today is what the position might be if there is no deal post-Brexit day because that is obviously the scenario we face if no other arrangements can be agreed…. Obviously there’s essentially a change of regime in the event of no deal. We’d move from the EU Regulations to the Hague Convention, the 1970 Convention on divorce, the 1996 Hague Convention in Respect of Children and also the 2007 Hague Convention in Respect of Maintenance. We also have the EU Notice to Stakeholders, which is not an easy document to understand. There is some concern as to what is going to happen to recognition of orders that have already been made and it’s not binding in any event on the remaining members of the EU so that is worrying that we don’t know what is going to happen with English orders and English proceedings after exit day.’

Michael Wells-Greco sounded a warning too, namely not to expect there to be one unified face to the EU that UK practitioners will be dealing with in the brave new world: ‘one of the overriding things that we have to make sure people are aware of is that it’s going to be down to each individual member state as to how they treat a third country and its down to their national law unless there were to be some overriding EU guidance or new agreement in place. So I suppose we really need to emphasise the importance of taking some advice in the country that people are concerned about so that they can consider as best they can how that country might treat our orders because that may differ: it’s not necessarily going to be the same between those countries.’

The first subject covered by the panel was divorce, jurisdiction and maintenance, where the spectre of forum non conveniens is now haunting European proceedings. As Tim Amos pointed out, ‘to go back to a system that pertained before most people were in practice is going to involve considerable relearning or recreating the wheel’. Another practitioner with enough years behind him to remember the new old days, Tim Scott QC, said ‘I think it’s going to be a return to the full blast of “the balancing factors”, the so-called balance of convenience, digging up every point in favour of Paris or of London, including, as happened in the case of Moore, the particular bakery in Grasse, and whether that makes the case more French than English. And of course that process is going to take two or three days of court time, goodness knows how many statements, the court delay, and let us not forget, the money on both sides of the Channel spent on lawyers before you even get to the question of what the right outcome is in terms of resolution.’

Eleri Jones  pointed out that all of this evidence-heavy, court-choking time is going to be further exasperated by a rise in litigants-in-person, who already can ill afford barrister input, while on the other side of the Bench, the High Court judges who used, all those years ago, to police the evidence and cut through the arguments, will never be made available now. Tim Scott agreed with Eleri: ‘those cases were, as far as I can recall, invariably dealt with by High Court judges. It’s going to be quite impossible for that to happen so you’re going to have district judges in the Family Court around the country having to deal with these issues with litigants in person in front of them.’

The discussion turned to the intricacies of habitual residence, plain vanilla residence, sole domicile, residence cards and all the other jurisdiction grounds – truly the family law equivalent of trust law’s ‘witch’s brew’. Daniel Eames pondered the efforts that would be required to sort this out in the post-Brexit courts: ‘we are going to have some classic cases aren’t we – I mean I remember talking to one of the lawyers involved in Wermuth v Wermuth, and that was one of the first cases after Brussels II came in and even at that stage – it would have been early 2000, 2001 – the costs on each side were £100,000 then, and I can’t imagine what they would be now in those sorts of cases.’

The panel held a detailed discussion of the 2007 Lugano Convention. The UK has not yet issued or deposited an instrument of ratification for the Lugano Convention, and practitioners were invited to consider the politics of this, and also whether it was worth hedging bets in pre-nups in case the UK does ratify Lugano later on. But Tim Amos raised the question –quoting his panel colleague Tim Scott – of whether the UK would still be welcomed into the Convention: ‘I can’t resist quoting what I regard as “the Tim Scott point” on Lugano and the probability of the EEA states accepting the UK joining. I remember the wonderful point that Tim made, many months ago, which is, if you are an EEA state asked to consider UK membership, would you want to have in your club a new member who behaved in another club in the way that the UK is seen to have behaved in the other club?’ Tim Scott recalled that he had described the UK on this occasion as ‘a notorious international hooligan’.

Warning notes were sounded for same-sex marriages. As Tim Amos pointed out, ‘in a number of eastern European states and members of the EU27 there is a formal constitutional ban on same-sex marriage and on the recognition of same-sex marriage’, so while in Michael Wells-Greco words, the current position is very much likely to be that a same-sex marriage will be recognised for all purposes of EU law. ‘Come Brexit day same-sex couples who were married here will not necessarily benefit from the same protection.’

Lucia Clark led the session on intra-UK issues, which focused on Anglo-Scots divorces and all the Villiers-style complexities that could unfold. Even areas of apparent agreement, say the definition of ‘habitual residence’, were open to doubt when, post-Brussels II they were ‘grandfathered’ back to separate codes. The Scots are using the same words as the English, ‘but the Scottish government has specifically said we are going back to the pre-EU law, so I would argue that that means you are not really using the same EU test – the same centre of interest test that was set out in Marinos and all the rest of it. Are we going back to an old Scottish definition of habitual residence, and if so, what is it?’ Once again, the prospect of expensive litigation for someone, when this proves a key point to their case (and they have the money to fight it) looms. And the huge disparity in financial outcomes between the two neighbours means uncertainties as to jurisdiction are bound to be probed.

Maria Wright also talked the panel through some potentially disturbing forum shopping opportunities in terms of vulnerable children: ‘There are a number of cases where children are moved outside of the [UK] jurisdiction to other EU member states, particularly Ireland but also to Spain, when there is some kind of indication that care proceedings are going to be issued in relation to a child, and effectively these are cases where families are escaping from care proceedings to another country in the hope that they can either avoid local authority intervention or have a more favourable outcome, potentially to avoid the possibility of their children being adopted given that we in this country operate a system whereby children can be adopted in the absence of the consent of their parents, as people call it forced adoption, so to avoid forced adoption. In these cases, particularly those involving families leaving the jurisdiction for Ireland, Article 15 is often used to transfer any proceedings which start in Ireland back to the UK, effectively rectifying the situation caused by a family leaving the jurisdiction to escape care proceedings. I don't know how these cases are going to work when we lose Brussels II revised, given that Ireland as an EU member state can't transfer jurisdiction to the UK as a contracting state until it starts to use Brussels II recast. So I raise that as something I'm worried about from a child protection point of view. It's not an issue that is limited to public law cases, because transfers of jurisdiction occur in private law cases, but I think it’s a particularly concerning issue in the light of the category of cases that it is used in in a public law context.’ 

It was time to wrap up the roundtable. So how positive did our participants feel about the future? Sitting firmly on the fence (and speaking purely personally), Tim Scott regarded leaving the EU without a deal as ‘tantamount to an act of national suicide and I suspect that the damage done to family law in the longer run will only be a small part for the wider damage done to the country’. 

Tim Amos and Maria Wright emphasised the practical, the former saying: ‘in a shrinking world family law is particularly global and therefore it seems to me as we get rid of one system of co-operation we desperately need as practitioners to enhance our local, personal systems of co-operation and that’s where your parallel advice of every point really comes into play’. Maria Wright appealed for similar reaching out between international child protection practitioners and authorities: ‘If the law creates gaps for children I think that it's important for us to bridge those gaps and fill them in if we can through a process of co-operation. It's all we can really do to ensure that children don't fall into the gaps that are created by an abrupt exit from the European Union.’

Again on the practical side, Eleri Jones urged practitioners to look out for appropriate test cases to help clarify gaps and problems early: ‘I appreciate it is tricky for those who don't have international cases very often but even our domestic jurisdictional provisions are affected to some extent, so I can only ask people to keep an eye out for the updates that come out, talk between themselves and see where some helpful test cases might come up.’ Eleri also advised practitioners, when drafting, to future proof their wording: ‘put as much as you can in your orders to make sure that you’ll facilitate [the] transition, think about listing types of jurisdictions in your orders so that recognition and enforcement might be aided so that the other countries don't have to work really hard to work out what we were doing here.’  Michael Wells-Greco added: ‘consider getting mirror orders as soon as possible in the foreign jurisdiction’.

It was left to Lucia Clark to sound a solo note of tentative optimism: ‘I’m going to finish on a positive note, kind of, I say hooray that the Maintenance Regulation is going, I dislike split proceedings, I dislike the difficulties that it causes in expat cases where you can't use sole domicile, so yes, I think that's great that we are not going to have that any more. I may of course have to eat my words if forum non conveniens proves much worse than first past the post, but for now I’m being optimistic.’

ENDS