EU Parliament calls for ‘attention’ for children in post-Brexit divorces

The European Parliament has urged negotiators discussing the future EU-UK relationship to “pay particular attention to the needs of children from mixed families where only one of the parents is an EU citizen”.

MEPs called in particular for “appropriate legal mechanisms for resolving disputes between parents, for instance in the case of divorce.”

The parliament’s appeal is among the recommendations on the negotiations for a new partnership with the UK, which were adopted on June 18 with 572 votes in favour, 34 against and 91 abstentions.

The continuation of EU family law in the UK is not part of the talks. From January 2021, when the Brexit transition will be over, the UK and EU countries will have to rely on national legislation and international conventions for the recognition of divorces, separations and judgments on maintenance.

The Parties affirm their common interest in continuing close judicial cooperation in matrimonial, parental responsibility and other related family law matters via the existing international family law conventions (the Hague Conventions).

Draft Agreement on the New Partnership with the United Kingdom proposed by the EU.

The risk is that mixed UK-EU families involved in separations will have to deal with more complex and costly legal procedures, difficulties to see court decisions recognized across borders, and delays affecting the wellbeing of children.

Family law excluded from EU-UK talks

At present, EU regulations cover the recognition and enforcement of judgments in matrimonial matters, parental responsibility, international child abduction, as well as maintenance obligations.

The Brussels II A or Brussels II bis regulation (BIIA), especially, allows to determine the jurisdiction of a divorce (usually the one chosen by whoever files for it first), which can otherwise become the reason of a dispute in itself.

Outside EU law, divorces, legal separations, children orders, child abductions and maintenance are regulated by the Hague Conventions.

The British government is currently implementing the Hague Conventions of 1996 (parental responsibility and protection of children), 2005 (choice of court) and 2007 (international recovery of child support and other forms of family maintenance) into domestic law through the Private International Law bill.

But Marianna Michaelides, solicitor at legal firm Bindmans, argues that these conventions do not offer the level of protection of EU law.

For example, Michaelides writes, “parties will lose the ability to ensure that orders relating to matters of parental responsibility are capable of automatic recognition” and child abduction cases might “not be dealt with in the current 6 week timescale” required under EU rules.

There are also gaps in the countries that have adopted such conventions. For instance, the UK is a party to the 1970 Hague Convention on the recognition of divorces, but not all EU member states are, so it may become difficult to obtain the recognition of UK divorces in some EU countries.

Decisions on maintenance (including pension sharing orders) can also be recognized under the 2007 Lugano Convention, which governs judgments in civil and commercial matters. The EU is a signatory to the Convention and, following Brexit, the UK has applied to join as an independent party. But according to the Financial Times, the UK accession may be opposed by the EU or occur months after the end of the transition period.

In a position paper submitted to the UK parliament committee on the future relationship with the EU, the Law Society of England and Wales has urged the British government to modify the Matrimonial and Family Proceedings Act 1984 before the end of the transition period to allow sharing orders on UK pensions after an overseas divorce, which are currently not possible outside EU law.

The UK should further encourage the EU to sign up to the 1970 Hague Divorce Recognition Convention as a bloc “to ensure legal certainty across borders,” the Law Society has said.

On June 22 the EU Commission opened a consultation on the EU’s accession to the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.

Future EU-UK relationship

Among the other recommendations on the future EU-UK relationship, the European Parliament has called for “a high level of mobility rights” with “ambitious provisions on the movement of persons, based on full reciprocity and non-discrimination among member states”.

The European Parliament insisted on rules on the temporary posting of workers, cross-border workers, and the coordination of social security systems. MEPs also stressed the “importance of ensuring reciprocal arrangements for the recognition of qualifications and diplomas”.

Given the lack of progress in negotiations, MEPs called on the EU Commission and EU member states “to take all necessary preparations and precautions” in case an agreement is not reached by the end of the year.

During an online meeting this week, British Prime Minister Boris Johnson informed the leader of EU institutions that the UK will not require an extension of the Brexit transition period.

Concerns about the withdrawal agreement

In its resolution, the European Parliament also expressed concerns about gaps in the implementation of the citizens’ rights section of the withdrawal agreement.

MEPs urged EU member states to “fully respect and protect the rights of UK citizens,” giving them “all the information they need and legal certainty about their situation and rights”. At present, several EU states are yet to publish procedures and timelines for the recognition of the rights of British residents.

MEPs also noted the “significant problems” experienced by many EU citizens in the UK. The Home Office reported this week that of the 3,319,000 EU nationals who have so far completed the procedure to obtain settled status, 57% were granted full status and 41% pre-settled status, which guarantees fewer rights.

The European Parliament considers the number of people granted pre-settled status “disproportionately high” and calls for more flexibility from the Home Office.

MEPs are equally concerned about the lack of a physical document for EU citizens to prove their legal position and about the “undue discrimination” of people with pre-settled status who have been denied social benefits during the Covid-19 crisis.

According to citizens’ rights group British in Europe, “the text sends a clear message to the UK and EU member states on the need to implement the citizens’ rights provisions of the withdrawal agreement in a timely and balanced manner”.

“Not doing so will call into question the credibility of both parties and their commitment to a future relationship based on their stated key priority of protecting citizens,” the group has said.

Claudia Delpero © all rights reserved.

This article was first published on June 21 and was complemented on June 22 with the addition of the EU Commission consultation. Image by Mabel Amber from Pixabay.

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