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Private children law after Brexit

This guide forms part of our series of guidance on private family law after Brexit.

Before 1 January 2021, intra-EU disputes relating to children were decided under Brussels IIa Regulation (or Brussels II). This provided for jurisdiction, recognition and enforcement of orders relating to parental responsibility.

Brussels II took precedence over the 1996 Hague Convention on Parental Responsibility orders and provided an additional overlay to the 1980 Hague Child Abduction Convention: this remains the relevant law for proceedings instituted on or before 31 December 2020.

Any final order made in these proceedings will have automatic recognition and enforcement across the EU under Brussels II, even where the order is made in 2021 or later.

Brussels II does not apply to proceedings instituted after 31 December 2020.

Jurisdiction

After 31 December 2020, jurisdiction in private children cases is based on national laws.

In England and Wales, the relevant ground is habitual residence and, for example, the relevant provisions of the Family Law Act 1986.

The overlay provisions of Brussels II on the 1980 Hague Convention no longer apply.

Forum

The forum criteria in Brussels II no longer applies after 31 December 2020.

However, in children cases, unlike divorce and maintenance, the jurisdiction of the habitual residence of the child is paramount.

Only in very exceptional circumstances will a state in which the child has habitual residence not have forum priority.

The 1980 and 1996 Hague Conventions apply to any international case.

Recognition and enforcement

Brussels II no longer applies in England and Wales after 31 December 2021.

The 1996 Hague Convention on Parental Responsibility orders, which to a large degree emulate Brussels II, will be the relevant instrument.

The differences between the two instruments are largely based on the:

  • absence of a timeline for resolving child abduction cases, and the exclusion of a second attempt provision once child abduction provisions have been concluded in 1996 Hague Convention
  • point at which habitual residence applies
  • recognition and enforcement of orders relating to parental responsibility

Amendments of the various statutory provisions by the regulations will allow the courts in this jurisdiction to recognise and enforce orders made in an EU member state.

The Ministry of Justice has published guidance on recognition and enforcement.

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