(1) Summary of article
EU withdrawal: family courts’ cooperation and retained law
A leading group of family lawyers has published its view of family law after EU withdrawal, Brexit and Family Law (October 2017: FLBA, International Academy of Family Lawyers and Resolution: ‘the lead specialist family law practitioners’). It sets out options for a future for family law, none of which (a) face what the realities of family law may be after ‘exit day’ (when EU withdrawal truly starts) or (b) explain what the effects of the EU withdrawal bill now before parliament will be. This article seeks to answer both these issues from a mostly procedural, though with some substantive law, point of view. It looks at some of the effects in family law of EU withdrawal, including:
(1) What is meant by ‘retained law’ under the withdrawal bill (especially cl 6); what is the context in the bill that this term arises; and how will the Henry VIII clauses in the bill (cls 7, 8 and 9) operate;
(2) An explanation as to the working of an important aspect of EU law, the family law procedural Brussels IIA (especially Art 15), and European judicial co-operation over broken families whose members are in different EU member states;
(3) Recent English case law and its significance, reflecting operation of Brussels IIA Art 15; and
(4) How, in relation to EU jurisprudence, the English common law may develop – with CJEU jurisprudence very much in mind – after exit day.
The article ends with questions for a future for family law and procedure outside the EU.
(2) Top five cases of the month
N v J (Power to Set Aside Return Order)  EWHC 2752 (Fam) (3 November 2017), MacDonald J – the High Court has jurisdiction to set aside a child abduction order on change of circumstances related to the welfare of a child.
Redbridge LBC v D, E, F and G (Children: Art 15 - transfer of the proceedings)  EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge – decision based on recent law for transfer of proceedings under Brussels IIA Art 15.
Richardson-Ruhan v Ruhan  EWHC 2739 (Fam) (9 November 2017) Mostyn J – preliminary issue findings of fact before later hearing for disposition of assets.
Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2)  EWCA Civ 1916 (28 November 2017) – Human Rights Act 1998 declaration that Fatal Accidents Act 197 s 1A discriminated against ‘2 + years’ cohabitants.
Re T (A Child)  EWCA Civ 1889 (23 November 2017) – Family Law Act 1996 Pt 4 non-molestation order is available to local authority for child in care against molestation (threatened attempts to contact child) by mother and her cohabitant.
Family Law Briefing is part of the Bloomsbury Family Law Service. The full briefing is available here.