Brexit: Justice for Families, Individuals and Businesses (EU Committee Report) — House of Lords, 2017-12-20
Topic: Law and Crime
Fiona Sara Shackleton (Conservative, Centre-right): My Lords, I pay tribute to our chairman, the noble Baroness, Lady Kennedy, who not only rules us with a rod of iron but seems able to make us all turn up and make our committee meetings fun. We get a lot of work done. I thank her The common law rules the noble Baroness refers to are, as most witnesses said, except the one non-practising witness, a recipe for confusion, expense and uncertainty, particularly in family law, in which I practice. I will pick three different topics to illustrate this The reality of life is that European citizens intermarry and inter-divorce. We have for some time been ruled by the Brussels convention, where the first past the post wins. You may have two French nationals living in this country with French passports. It would be possible for them to divorce in France or in England—the first person to file a petition wins. That takes away a lot of law. It takes away a long-contested forum conveniens argument and a lot of anti-suit injunctions, such as Hemain injunctions, to prevent the foreign jurisdiction proceeding until the English jurisdiction catches up, for example We have not used this in European law for many years. The judges are not qualified to deal with it or have little practice in it because we have not been doing it. There is no legal aid. The judges are completely overwhelmed with very serious child matters. Absent Brussels II being reinvented, we will be flooded with litigants in person trying to plead before a judge as to whether the jurisdiction in England is more convenient for the family than the jurisdiction in, say, in the example I gave, France. That will have a very serious effect on our already overburdened courts The second area is the enforcement of maintenance regulations. Lugano exists, but it is not the same as what we have under European law. It is a poor relation. It is of some significance, but nobody can find out how many people obey the law because they are too scared not to. If there is a void in the law, it is likely that more people will default. If there is not proper enforcement, the applicant will not be able to collect their money. The same is true in relation to children. We have been told that the Hague convention is not as good as the Brussels II Regulation. More children may be abducted. This is all at a time when legal aid is practically non-existent and judges are overwhelmed by litigation The Government’s response to the concerns caused by the loss of this EU legislation to the UK’s family law system post Brexit is, to put it mildly, disappointing. The committee was not convinced that the Government had a coherent or workable plan. To suggest that we can just be "wound down", as the noble Baroness, Lady Kennedy, mentioned, is purely defeatist and inadequate. Proper law has to be put in place. The good that has been done by harmonious European relationships—a judge in England phoning a judge in Italy to try to retrieve a child; the cross-border co-operation between member states—cannot be underestimated. It has taken decades to build up such relationships. If we do not continue with them, we as a country will be poorer.