As addressed in the earlier post by Kiren Dhillon, family law will be significantly affected by the result of the recent referendum.

The area of international child abduction is likely to be affected by Brexit. This is because a key legal provision, known as Brussels II Revised, is a European Union regulation. If the UK is no longer part of the EU then this regulation may simply not apply to the UK from the point of exit.

Since being in force, Brussels II Revised has taken precedence in matters of jurisdiction and international recognition when it comes to divorce, international child abduction and custody cases. There may not be a cause for panic however, as the 1996 Hague Convention carries out a similar function to Brussels II Revised and it applies to all EU member states, including Denmark (as well as other countries), whereas Brussels II applies to all EU member states excluding Denmark. The 1996 Hague Convention was drafted before Brussels II Revised but it did not enter into force for the UK until November 2012. Therefore by then, the UK was well used to Brussels II Revised given that it had come into force much earlier on 1 March 2005.

There is a lot of overlap between the 1996 Hague Convention and Brussels II Revised and therefore the Convention may allow family law practitioners to continue to conduct family cases involving an EU member state in much the same way as now if Brussels II Revised becomes irrelevant to the UK.

Both under the 1996 Hague Convention and Brussels Revised, jurisdiction concerning children cases is based on habitual residence (except in cases of emergency where for example there is a child protection issue).

The rules on recognition and enforcement in another EU member state of decisions made in one EU member state are similar under the 1996 Hague Convention and Brussels II Revised. This is important as this may mean that for example in a child abduction case, the 1980 Hague Convention (which is unaffected by Brexit) is continued to be utilised but the 1996 Hague Convention is used in cases involving an EU member state and the UK in place of Brussels II Revised to for example have a custody or access Order recognised and enforced. The 1996 Hague Convention has been under-used until now, but it seems that may well change when the UK exits the EU.

If you are involved in an international family law situation then please contact Mandeep Gill or another of our specialist team on +44(0)203 440 8000 or email A_FamilyReferrals@tvedwards.com.