The nation voted to no longer be a part of the European Union and on 31st January 2020 the UK left with a withdrawal agreement.
The transitional period is an 11 month phase and will have an impact on our legal system. The decision to leave means that parliament now has the important task of creating new laws. This is because leaving the EU means the law of the European Union will no longer apply to us.
Parental child abduction is a real and frightening thing and was covered under the Brussels IIA Regulation which dealt with the movement of children within the EU. Though the UK will rely on the 1980 and 1996 Hague Conventions, we will lose some protection and benefits that are awarded under Brussels II.
Article 9 - Parental Responsibility
When a child is moving from one member state to another it is essential to review the access right or any contact arrangements in force.
Under Article 9 a rule is in place which requires individuals with parental responsibility to approve the changes to the current access rights and arrangements before the move to another member state occurs. If an agreement is found to be impossible then they must apply to the court of the child’s former habitual residence to resolve the disagreement.
What this means is that within the first three months following a child’s move the child’s habitual residence will remain in force thus allowing individuals who can no longer exercise their right to contact (as ordered by a previous judgment) can apply to the child’s former court to resolve the issue. What the regulation offered was that the new member state would not have jurisdiction in the matter during this period.
As a result of this, the 1996 Hague Convention will prevent the individual with parental responsibility to exercise the protection offered by Brussels IIA to bring action in their domicile court.
Article 14 - Refusal to return
The principle is that the child shall always be returned if the child can be protected in the member state of origin.
Article 13(1) (b) of the 1980 Hague Convention similar to the Brussels II Regulation allows member states to refuse the return of a child to another member state if it considers there is a serious risk that the return would expose the child to ‘physical and psychological harm or put…in an intolerable situation’ (1980 Hague Convention).
However, there is a slight concern that the legislation to be relied upon by the UK does not follow its predecessor Brussels II. Article 11 (4) of the Regulation stipulates that the return could be avoided provided if there were adequate measures in place to protect the child and rectify the risk. Which allows the member state to where the child has been taken to, to refuse a return order.
Article 11 (3) - Six weeks’ time frame
The court shall issue a decision within a six-week deadline – Article 11(3).
The regulation states that cases of child abduction are to be dealt with within six weeks unless there are exceptional circumstances.
However looking at the 1996 Convention, it does not contain any provisions to that effect. Though the 1980 Convention does state under Article 2 that member states shall take all appropriate measures to secure the implementation of the objects of the Convention by using the most expeditious procedures available.
As well as this, Article 11 requires the court act promptly in proceedings for the return of the child. If the court has not reached a decision within six weeks, it may be requested to state the reasons for the delay.
It can be argued that it is more than likely that most courts may be of the view that it is within the best interests of the child to deal with the matter expeditiously. However, as this is not set out in legislation there is a raising concern that child abduction cases may not be dealt as efficiently as possible.
Article 11 - Return proceedings
The UK will lose the benefit provided under Articles 11(6) to (8) of Brussels II that set out a procedure for appealing the court’s decision in respect to not being awarded a return order. Thus allowing the applicant a second attempt at a return proceeding.
However the 1996 Convention does not allow a second attempt at return proceedings after it has concluded.
Article 50 and 55 - Legal aid
Legal aid is not available in England and Wales for the recognition and enforcement of orders under the 1996 Hague Convention unlike Brussels IIA. Where a person is entitled to legal aid in their member state of origin the individual may be assisted when they are dealing with matters concerning the recognition and enforcement of a decision on parental responsibility in another member state. It is worthy to note that paragraph 17 of LASPO refers to Brussels IIA however fails to acknowledge issues arising under the 1996 convention despite having similarities.
How will the UK ensure that there is protection from child abduction in light of Brexit? Despite the conventions being in force they do not provide the equal protection warranted by Brussels IIA as explained above. Thus raising the question: is Hague sufficient? The UK would need to ensure the laws are modified to offer greater protection, which was once awarded under the Regulation.
Author Mariam Saghir is a caseworker in the child care department at the firm’s Leicester office where she works under the supervision of director Olamide Olayemi. Mariam has expertise in numerous child care matters notably those concerning domestic violence and private children matters.
Contact Mariam on 02079238496 or at email@example.com
Contact Olamide on 02072752673 or at firstname.lastname@example.org