Writing for Scottish Legal News today, distinguished legal academic Professor Eric Clive discusses the consequences Brexit would have on family law.

A UK vote to leave the EU would have virtually no effect in the field of family law except in the area of jurisdiction and the recognition and enforcement of judgments. Outside that area the EU has an extremely restricted competence in family law. It is limited to measures concerning family law with cross-border implications and requires a unanimous decision of the Council (see the TFEU art 81(3) which also gives national Parliaments a veto in certain circumstances). Also the limited competence is in Title V of Part 3 of the TFEU, which does not apply to the UK unless it chooses to opt in to a particular measure (see the Protocol (No. 21) to the TFEU on the position of the UK and Ireland in respect of the area of freedom, security and justice). So the bulk of family law is and will remain national law whatever happens in the referendum on 23rd June.

In the area of jurisdiction and the recognition and enforcement of judgments the UK has, however, been an active and influential participant and has exercised its power to opt in. So this area is heavily influenced by EU law, albeit EU law which UK representatives helped to make.

In relation to family law, the main instrument is the so-called Brussels II bis Regulation of 27 November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (“the Council Regulation”). This Regulation is very important in practice and is, I believe, widely regarded as a successful measure. At a time when more and more people from EU countries are living, working, marrying and having children in member states other than their own it is very useful for family lawyers in this country to be able to find out, from texts readily available in English, not only what our own rules are on jurisdiction and the recognition and enforcement of judgments but also what the rules are in all other member states of the EU. What would happen if the UK voted to leave in the referendum on 23rd June?

We would then be in uncharted waters. The UK would not immediately cease to be a Member State. There would have to be a period of negotiations and disentangling. This could be difficult and protracted, but eventually the UK would cease to be a Member State. At that stage the Regulation would cease to have effect in relation to the UK. It could not just be continued in effect by a simple provision converting it into a UK Act or, for Scotland, an Act of the Scottish Parliament. Most of its provisions are framed by reference to Member States. Even the word “court” is defined as covering “all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation” (art.2(1)). So there would have to be new provisions.

In relation to jurisdiction it would be possible to fall back on the rules which currently apply in the rare cases where the courts do not have jurisdiction under the Council Regulation. However, this would not be ideal. The rules are scattered over Scottish Acts, UK Acts and Statutory Instruments. The original rules have been much amended. They are not easy to use. Further amendments to disentangle them from the Council Regulation would make them even more difficult to use. The best solution for Scottish family law would therefore be a new Act of the Scottish Parliament on jurisdiction and judgments complying with the UK’s obligations under the relevant Hague Conventions, in particular the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. As the Council Regulation itself follows the 1996 Hague Convention quite closely the new Scottish rules could and should be similar to those under the Council Regulation.

In relation to recognition and enforcement there would be a clear loss. We could again fall back on the rules applying to the recognition and enforcement of non-EU judgments but this would do nothing for the recognition and enforcement of our own judgments in the EU. To some extent Hague Conventions to which the UK is a party (and in particular the Convention of 1st June 1970 on the Recognition of Divorces and Legal Separations and the Convention of 19 October 1996 mentioned above) would fill the gap, but the 1970 Convention has not been ratified by all EU States and the mechanisms under the Council Regulation are more robust. So it would be desirable to have negotiations on an arrangement for reciprocal recognition and enforcement with the EU with a view to replacing the Council Regulation. The prospects of a successful negotiation would be improved if, as suggested above, our own rules on jurisdiction mirrored those in the Council Regulation.

So a vote to leave would mean either a less satisfactory situation for UK citizens or a great deal of work to try to get arrangements almost as good as those we have now. They could not be quite as good because we would lose any ability to influence future EU developments from the inside. It would be very much easier if we did not leave but that is in the hands of the voters on 23rd June.