Before Brexit and for cases started during the transition period, the rules concerning cross border disputes involving children when one parent lives in England and another in an EU Member State were found in the EU Regulation known as Brussels IIbis. Following Brexit, Brussels IIbis no longer applies in England and all references to the Regulation have been deleted from domestic legislation.
Going forwards for cross border disputes relating to children, we will be relying on the framework contained in the 1996 Hague Convention on Jurisdiction Applicable law, Recognition and Cooperation in respect of parental responsibility and Measures for the Protection of Children (the 1996 Hague Convention) to determine which court has jurisdiction in any given case.
The good news is that under the 1996 Hague Convention, the underlying basis for jurisdiction for cases involving children in these cross border circumstances will remain the same as under Brussels IIbis; i.e. jurisdiction will primarily be based on the child’s habitual residence. The other fundamental positive is that although there won’t be automatic enforcement and recognition of new Orders (as under Brussels Ilbis), mechanisms are already established under the 1996 Hague Convention for a stepped process to achieve and secure enforceability across borders.
However although these fundamental tenets are in place, many safeguards contained in the more comprehensive European Regulation will fall away and the uniformity of approach which is at the heart of the European project will no longer apply. It is early days and the way that the UK and EU Member States will work together going forwards is in the process of being negotiated and developed. We are monitoring this progress keenly and working closely with our extensive network of European colleagues to understand the individual approaches of national courts across Europe so that we can provide the best advice to our clients whatever their circumstances.