Children Act Applications Post-Brexit | Family Law

Up until 31 December 2020 the law within England and Wales was governed by European Union  (EU) Laws and Regulations, and, therefore, Brexit may have caused many to feel uneasy about sorting arrangements for their children. Fortunately, many have noted that this transition has, perhaps, been more beneficial for Children Act Proceedings as the change is arguably far more encompassing in comparison to Brussels II Convention which once provided the legal framework for Children Act Proceedings.

Hague Convention 1996

The Hague Convention provides a legislative framework for Children Act Proceedings since the UK’s departure from the EU. The Hague Convention is, arguably, far more encompassing by providing a wide range of civil law protection, with an aim of best protecting children within England and Wales, as well as overseas.

There are five issues that the Hague Convention focuses on within Children Act proceedings

1. 1.
   

   Jurisdiction

Firstly, it is important to establish where a child is ‘habitually resident’, to truly ascertain which jurisdiction a child should live, and which law/jurisdiction should be applied during Children Act proceedings.

Please be aware that a court can lose its jurisdiction if a child were to change their habitual residence during proceedings. Therefore, it is important to be mindful of this if you intend on moving jurisdiction with the intention of commencing formal children’s proceedings.

2.      Applicable law

Once habitual residence has been established, then the applicable law shall be the law of the country exercising jurisdiction e.g., if your child is habitually resident within France, the law that will be applied/applicable during your proceedings will be under French law.

3.       Parental responsibility

Next, the Hague Convention tries to best protect our children by enabling some parents, guardians, or legal representatives to have ‘parental responsibility’.

Those with parental responsibility are granted rights, powers, and responsibilities to best protect both a child and their property, and unless ordered otherwise, this shall remain until the child reaches 18.

If you are unsure whether you, in fact, have parental responsibility or what this might mean for you, is it important that you seek independent advice to fully understand your rights.

4.      Enforcing contact

Moving on to enforcing contact, since the UK left the EU, enforcing contact outside of England and Wales could perhaps be more challenging, as the Hague Convention is not wholly enforceable within all EU countries.

Therefore, if you have a Court Order regarding Child Arrangements, and you intend on leaving England and Wales, it is advisable that you obtain advice as to whether your Court Order will need to be registered within a different country or if a ‘declaration of enforceability’ is required within a certain country.

5.      Cross border cooperation and information

Lastly, the purpose of the Hague Convention is to establish cooperation between the states in obtaining information about a child that is presently abroad e.g., reports on their wellbeing or information on their whereabouts, which could be integral within Children Act proceedings, especially those which involve the possibility of child abduction.

It is vital to obtain advice regarding the obtaining of information, if you consider that the need for the information is vitally important for Children Act Proceedings.

Ultimately, it is noted that since the UK’s departure from the EU the Hague Convention 1996 has effectively been implemented within the law of England and Wales with the purpose of best protecting children and their interests across borders.