What is cross-border family law?
Where disputes over child custody and maintenance span two different countries it can be difficult to determine which country’s court should hear the case, and whether orders granted in one country can be recognised and enforced in the other. Cross-border family law is used to solve these procedural problems.
The EU has passed legislation to make resolving these questions as simple as possible. There are two central pieces of legislation:
What does Brexit mean for cross-border family law?
As a result of EU free movement, there are over 3 million EU nationals living in the UK. Many of them have formed ‘international families’. In 2016, 10% of births in Scotland were to couples where at least one parent was born in another EU country.
Brexit has three main implications for these families:
- Changes to immigration rules for EU-nationals may make it harder for these families to stay together, in turn increasing the likelihood of cross-border disputes over where children should reside;
- Uncertainty over the future application of EU cross-border family law; and
- Risk of the UK being left behind positive child rights-based developments at EU level
It may be that the UK will need to “fall back” on other international treaties regulating cross-border family disputes, such as the Hague Conventions, but doubts have been raised over whether these alternative instruments are as child rights-focused as their EU counterparts.