UK sets Brexit goal of reciprocal ‘civil judicial cooperation’

Lawyers have given a cautious welcome to the government’s Brexit position paper calling for a cross-border civil judicial cooperation framework.

Under current reciprocal arrangements, a decision made by a court in the UK can be enforced in other EU Member States, enabling citizens to enforce orders made by the civil and family courts on commerce, trade and family matters such as child custody and maintenance.

After Brexit, however, the UK will no longer be part of this arrangement with EU Member States.

The government sets out why it ‘will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU,’ in its paper published this week, Providing a cross-border civil judicial cooperation framework—a future partnership paper.

It says it will ‘seek an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework.

‘As we legislate for our withdrawal from the EU, it is also our intention to incorporate into domestic law the Rome I and II instruments on choice of law and applicable law in contractual and non-contractual matters. This will provide a coherent legal framework for UK and EU businesses to trade and invest with confidence across borders and support the protection of individuals’ and family rights in cross-border situations.’

Andrew Langdon QC, Chair of the Bar Council, said: ‘On the face of it, the government’s position includes sensible and sound proposals and shows that the government has been in listening mode when talking to the Bar Council and others on this crucial topic.

‘We are encouraged by the fact the government sees value in preserving much of what is already in place in existing arrangements between the UK and the EU, as well as the UK’s relationships internationally and third parties. However, the devil will be in the detail.’

Family lawyers group Resolution said close cooperation with the EU on family law matters was a key recommendation of the Justice Select Committee’s enquiry last year, to which it gave evidence.

Daniel Eames, chair of Resolution’s International Committee, said: ‘Cross border family law for intra EU-UK cases—whether divorce, children or financial—requires reciprocity. Without reciprocal rules, there can be no legal certainty in treatment with all the ensuing complications, delays and potential costs for families and children or local authorities undertaking their child protection function.

‘These issues may not make headline news, but for families affected by a cross-border dispute, it can be deeply distressing. For their sake, the more clarity on what the situation will be after March 2019, the better.’