Justice Committee

Meeting date: Tuesday, January 30, 2018

Official Report 613KB pdf

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Brexit (Family Law)

Item 2 is a round-table evidence session on Brexit and family law. The purpose of the session is to explore issues around family law in the context of the United Kingdom’s withdrawal from the European Union.

I welcome all the witnesses. We will start with introductions round the table. I am convener of the committee.

I am one of the clerks to the Justice Committee.

I am also one of the clerks to the Justice Committee.

I am the member of the Scottish Parliament for Coatbridge and Chryston.

I am an advocate who practices in family law, including international issues.

I am the MSP for Edinburgh Northern and Leith.

I am a partner at Morton Fraser and I specialise in family law.

I am an MSP for the Highlands and Islands.

I am director of Together, the Scottish Alliance for Children’s Rights.

I am the MSP for Orkney.

I am an MSP for the North East Scotland region.

I am an MSP for the West Scotland region.

I am professor of EU and private international law at the University of Aberdeen.

I am the MSP for Angus North and Mearns.

I am Paisley’s MSP.

I am professor of private law at the University of Glasgow.

I am the MSP for Edinburgh Southern.

I am the MSP for Strathkelvin and Bearsden and deputy convener of the committee.

The purpose of a round-table discussion is to have a more informal setting. Evidence will be recorded and put out there in the public domain, but the discussion will allow a freer exchange of views between witnesses and members. We can keep control of the discussion if you always speak through the chair. Witnesses need not worry about microphones or pressing any buttons; when it is your turn to speak, the microphone will come on automatically, as if by magic.

I thank all the witnesses who have provided written evidence; a lot of work has gone into the submissions.

The session has potential to be complicated and technical and not achieve very much. In essence, we want to have a round-table discussion from which the man in the street could understand the extent of the problems, the options that are available and where we can go from there.

We will start by looking at the extent of the problem for various aspects of family law. I ask Lucia Clark to kick off, as she puts the issue in context in her written submission.

My submission starts with the figures, which come from various papers. The international cases include 140,000 international divorces and 1,800 cases of child abduction in the European Union each year. I do not have specific figures for the UK or Scotland. We are all aware that families and people move about, and those issues are likely to increase rather than decrease as families have people and assets across borders.

Would somebody like to pick up on those areas and look at the potential impact and the size of the problem?

I begin with the convener’s point that this area of law is potentially technical. That is true, but people did not identify it as a possible area of controversy in the Brexit negotiations after the referendum. It has been dressed up as technical and procedural but, as Lucia Clark pointed out, if one pares it back, there are significant practical implications for people who live in families, which we will look at in this session, and for businesses, consumers, employers and employees, which will be discussed in the next session.

We can look at three particular areas of private international law, which is basically the area of law that we are concerned with. First, questions of jurisdiction arise. Which court is competent to hear a particular dispute involving a cross-border family? Secondly, there are questions of applicable law. What law will the court that is exercising jurisdiction apply? Which country’s law will it apply to determine the dispute? Thirdly, there is the question of the recognition and enforcement of overseas judgments. To what extent will a Scottish court recognise judgments from overseas and vice versa? The rules of private international law dictate how those three problems of jurisdiction, applicable law and recognition and enforcement of judgments should be determined.

On the advent of Brexit, the European Communities Act 1972 will be repealed, and with that the private international law landscape will change dramatically, because the private international law landscape in Scots law is currently European in character. Various European regulations are applicable, and the operation of those instruments will be in question on the advent of Brexit.

That is helpful. Can we look at the kinds of issues that arise? We are talking about family law.

Let me give you an example. Last year, I was asked to litigate a case for a wife who was in Scotland and a husband who was living in France, and there was concern about what law would apply. The EU instruments do not govern for us what law is applicable—they govern the court.

Can I ask what the case was about? Was it about divorce or custody or—

It was a divorce case, and we were concerned about the money aspects. We deliberately started proceedings in Scotland in order to secure priority for the wife’s divorce and the Scottish rules for financial provision. Under the current EU provisions, the court that starts first carries the case and no other court within the EU can then intervene.

Under the European Union (Withdrawal) Bill, if I had the same case and I started in Scotland, I could not guarantee that the French court would not start, because it would not recognise that a Scottish court had started first. The problem that we will face if we implement the provisions in the withdrawal bill as it is currently drafted is that we will carry on with the EU rules and will recognise a court that starts first, but no other court in Europe will recognise it if we start first.

We therefore have a problem with such cases, and we could get two courts—expensively—both conducting the litigation and coming to conflicting decisions. I would have thought that the committee will be concerned to prevent that.

We have already heard that private international law will dictate what happens in this area. Is there a recognised international agreement or specific EU agreements?

In that scenario, it is the EU. There is no international agreement on priority of court in relation to divorce.

Okay. Are there other comments? Liam Kerr has a supplementary question, and then I will bring in Professor Beaumont.

I actually want to bring Professor Beaumont in. From reading the papers, I could see a community view emerging, but it seemed as though Professor Beaumont has a slightly different interpretation of what might happen. I just wondered if he might come in on that.

That is very kind of you, Liam. You just took five minutes instead of us hearing directly from Professor Beaumont, but thank you for that. [Laughter.]

It was very kind indeed—thank you.

Janys Scott made the point in relation to divorce, which is one of the few areas where there is no international regime. She is quite right. She selected an area where there is a problem, but my evidence suggests that there is not really a problem in most areas. People are worrying but, to quote Shakespeare, I would say that it is “much ado about nothing” in most cases. However, we can have a debate about that.

On divorce, Janys Scott is right, but I must put the opposite point of view, which is that we have a problem with the current regime. Most people acknowledge that. There is European Court of Justice case law on the problem. Because it is a first-come, first-served regime, there is a pattern whereby the husband in couples who have been in England or Scotland during their married life but one of whom is from France or Italy—it is usually the husband—will try to instigate proceedings first in France or Italy to reduce the amount of money that he has to pay to his wife, and we have to recognise that if he gets in first. The first-come, first-served regime is a swings-and-roundabouts arrangement. It can suit the wife if she gets in first and it can hammer her if she does not.

If we stop applying the EU instruments unilaterally, the fallback position in this context is the common law, not an international regime. Our fallback is Scotland’s proudest development in that area of law, which is forum non conveniens. We are the architects of a concept that has now been accepted throughout the common-law world—in the United States and all the Commonwealth countries. It is one of the few things that we can say is a product of Scottish legal endeavour. Therefore, it would not be shocking to apply a system of forum non conveniens, which would involve our courts making the assessment as to whether there is a more appropriate forum to deal with the matter and declining jurisdiction in favour of that more appropriate forum.

The sad thing is that continental European countries do not apply that concept. Normally, under their common law, they apply a lis pendens rule, so if we were seized first, they would respect that. That is their normal approach outside the EU rules.

You can take your choice. I have never been a big fan of lis pendens. In fact, I do not like it at all. It is arbitrary. It is all about who is best advised and gets in first. A better justice system is one in which judges make discretionary decisions about whether the court is the most appropriate forum to deal with an international case.

Janys Scott spoke about two courts running in parallel on a divorce agreement. Post Brexit, if both courts reached a decision, what overarching body could there be to deal with that?

There is not one.

If both courts came to a decision, how would the decision be enforced in either country?

That is precisely the danger, and it is what the EU instruments were designed to deal with. I understand why Paul Beaumont has reservations about lis pendens—we all do. One cannot defend the EU regime as being perfect. One can say that it was a work in progress, but it was better than what we had before. It prevented parties from having to litigate in two places at once because they both thought that they had the right regime, which then meant that there was a problem with enforceability.

I suggest that, given the increased movement of persons and the existence of international families, one cannot really tolerate that previous situation in the modern world. One has to have a regime, even if it is not the one that one would ideally want to advance. I understand Paul Beaumont’s reasons as to why forum non conveniens is a civilised concept. On the other hand, one has to have determination and finality to reduce expense and distress for families.

The trouble is that it is not true that the lis pendens system works for divorce. Let us be candid. If we consider it technically, it does not work for that because the Brussels 2a regulation relates only to the divorce action and not to financial provisions. Those are governed partly by the maintenance regulation and partly by instruments to which we are not party, which are the matrimonial property enhanced co-operation regulations.

Therefore, a French proceeding could continue in opposition to the Scottish proceeding because half of it relates to matrimonial property and not to maintenance and the French courts are not bound by the regulation to defer to the Scottish proceedings. They are bound to defer only on the question of divorce and not on the financial provisions. They would technically be bound to defer on the maintenance aspects but, viewed from a French perspective, that is a small part of the overall package. We will not get the solution that we think we will get if the French court plays hardball, which it is perfectly capable of doing, and the Court of Justice would not prevent it from doing so because it is not a lis pendens situation.

I accept that there are deficiencies. Janeen Carruthers might want to respond to that.

10:15  

I share Professor Beaumont’s pride as an academic in the wonderful export of the principle of forum non conveniens. However, it is a discretionary system that is expensive and particularly lengthy to litigate for clients who have to pay for the dispute to be settled somewhere. Those considerations have to outbalance the pride in the academic export.

Are you speaking about the financial settlement, which seems to be separate from the divorce itself? I recently attended a conference on arbitration at which Lord Glennie suggested that arbitration could be recognised internationally and worldwide so that there would be no disputes about the regulations to settle matrimonial property or finance. What are the panel’s comments on that suggestion?

The Brussels 2 bis regulations restricted the jurisdiction, recognition and enforcement of judgments in matrimonial matters: divorce, nullity, judicial separation and matters of parental responsibility. As Professor Beaumont said, that does not extend to the financial implications.

The separate regulation that we have focused closely on is concerned with the financial aspects of parent and child or spousal maintenance. The problem that has been highlighted is that those proceedings are not necessarily streamlined in one set. Strictly, Brussels 2 bis deals with the recognition of the divorce but not necessarily with its financial implications.

Arbitration is an interesting idea. It could not deal with the divorce itself because that is a status issue, but in principle there is no reason why couples, if they agree, could not put the financial aspects of their divorce to arbitration. I do not think that the practice is common in international matters, but those witnesses who are in practice might be able to alert me if it is. It tends to be used more in the commercial context than in the family context.

We are very keen to see it developed in the family context. We have been working on that approach for the future, but we will have to take a slightly different view of it post-Brexit than we might have taken otherwise.

As Janys Scott said, arbitration is interesting for practitioners and academics, but it is not widely known about or used. The couple would need to agree to it, so it does not solve the problem, which is about a couple whose dispute is about where to divorce and where to sort out the finances, and not just about how to divide their assets, which can be done by negotiation and does not need to go near a court except for the divorce to be finalised.

Janys Scott spoke about the written evidence that family law is the point at which Brexit becomes personal. From the simple perspective of a constituency MSP, my interactions with the issue have usually been with one party when someone has taken flight to another country, sometimes with their children. Nine times out of 10, divorces are not amicable. There will always be problems, which are not just about who is right and who is wrong. If we make the system more complex, might one party start a divorce in Scotland and the other start in France, with the complexity being used to make the case take longer and the heartache in the family being made even worse?

You are absolutely right, which is why EU instruments that bring certainty are helpful to the parties. We can at least tell them which court will determine their dispute. With divorce comes the financial elements. What is proposed would send us off into the wilderness of uncertainty in family proceedings, whereas we were on a course that was bringing us towards greater certainty. Albeit that it was not perfect, we were definitely working on it.

I was very enthusiastic about working on making the EU instruments work better for families. I am on the family law committee of the Council of Bars and Law Societies of Europe, and we were very keen to do that. It was a co-operative and collaborative exercise in which family lawyers were trying to make the process more straightforward for families, and I confess that, personally, I am hugely disappointed that we have pulled the plug on it.

Juliet Harris has not said anything yet, so let us have her contribution.

I want to reflect on George Adam’s point. I come at this not from a legal perspective, but from a children’s rights perspective, and I want to put across the experience of children and young people in proceedings relating to family breakdown. It is obviously a really difficult and traumatic time for children and young people.

I think that more of these cases will be brought to constituency MSPs because the uncertainty that Brexit brings for families with EU connections is absolutely massive. Research that has been carried out with children and young people shows that even now there are implications for their mental health from not knowing what will happen next in terms of Brexit and their rights. Research that we conducted last year identified that 10 per cent of the babies born in 2016 have a parent from the EU, so we are talking about a lot of children and families who will be affected by that uncertainty—more than 5,000 babies who were born in 2016 will be affected by it.

As a reflection on what Janys Scott said about the developments in the EU, our research showed the added value that comes from the EU in terms of children and young people’s rights. The framework that we are talking about at the moment is actually stronger than the Hague framework that we would fall back on. It is, for example, very clear about the need for children and young people to have their voice heard in court proceedings, it emphasises their best interests and it talks about the timescale for those proceedings, which is so important in a child’s life. Those things need to be sorted out quickly and effectively to provide certainty.

Janys Scott touched on developments in the EU in the recasting of the Brussels regulation, drawing on the United Nations Convention on the Rights of the Child—to which I know that, across all parties, the Scottish Parliament has made a strong commitment—to make sure that the rights of the child are absolutely central in judicial proceedings. We are getting buzzed and brain fried with the number of regulations that affect children and young people, but they do not care about that; they care about their right to have their voice heard, about not having to speak out in front of their parents, about their right to privacy, and about certainty. Certainty is the most important thing and it is what we are all lacking at the moment.

Does Professor Beaumont want to come in?

Yes—on a lot of points. I advised the Commission on revising Brussels 2a—I was on the expert group. We looked at issues concerning the rights of the child, which are, indeed, being reinforced in the current recast. The trouble is that there is a big difference between theory and reality. We might think that the EU is wonderful, but when we do some research on what actually happens with the application of the right of the child to be heard—as we did, funded by the Nuffield Foundation—the evidence is appalling.

We looked at child abduction cases. Under EU law, there is an override system that allows the courts in the child’s country of habitual residence before the abduction to override a decision made by the courts in the country of refuge not to return the child. That system requires the child to be heard before it can operate, yet the evidence showed that, in most EU member states, the children are not being heard and override orders are being issued in complete and utter ignorance of the rights of the child.

There is a world of difference between the EU’s aspirations and the reality on the ground in member states. We have to be much more savvy about that. When research such as ours is done to look at what is actually happening in member states, the picture is often that there is the aspiration but then there is the reality. Whether or not we are in the EU, that will be the picture in most situations.

I honestly believe that, for children who have been abducted, the Hague regime is better than the EU regime because of what I have just told you. The EU regime gives left-behind parents false hope that they will be able to get their children back using the override mechanism, when all the evidence shows that that mechanism simply does not work because the states will not apply it properly and will not enforce it.

For all the talk of having powerful enforcement mechanisms in the EU, enforcement does not happen. The Commission never brings enforcement action against member states for non-compliance in that area of law. That has never happened, and the Commission has no intention of doing it. I have pushed it hard and told it that it should use enforcement actions but it ignores me and does not do it. That is a political decision on the Commission’s part. It is not a priority area for EU law enforcement from the Commission’s perspective. Therefore, there is no guarantee that abducted children will have their rights under EU law enforced because nobody ensures that those rights are enforced.

I am afraid that that is the harsh reality in which we live. It is better to have the clarity of the Hague convention, which operates in 90-odd states, not just 28 EU states. Why have a separate regime in Europe unless it is an improvement on the international regime? In child abduction, I am sure that it is not an improvement.

In relation to other areas of child law, the Hague regime is, as I have explained in my submission, just as good as, if not better than, the alternative. I negotiated the EU maintenance regulation and the Hague convention for the UK and Scottish Governments—I was a consultant to both in those pleasant days when they co-operated. In our negotiation of the Hague maintenance convention, we produced a good international regime for child support. The US has now joined it, I am delighted to say, and the EU is a party to it, so we have a good international regime that works in terms of getting child support. We do not need the EU maintenance regulation for that; it does not add any value. That is my honest assessment as someone who negotiated both.

We can be thankful that the EU has ensured that the Hague maintenance convention applies to spousal support when it is independent of child support, even though that is not a fundamental requirement of the convention. It is an option that the EU has exercised. Therefore, if the UK were a third state applying the maintenance convention with the EU, our spousal support financial orders would be recognised in the European Union because the EU has an obligation to do so under the convention. In effect, that puts us in the same position as we are in under Brussels 2a—the position is no different.

The only slight difference, as Janys Scott has pointed out, relates to conflicts of jurisdiction. To be frank, you can legitimately take a different view on whether a race to the court is better than a race to judgment. That has always been a debate and there is no absolute clarity that one is better than the other.

The UK Government and the House of Commons Justice Committee have recognised that the EU regulations are stronger. The UK Government says that they provide

“more sophisticated and effective interaction, based on mutual trust between legal systems”.

I can send the papers to the committee afterwards if that would be helpful. The fact that that point has been raised by the UK Government and the House of Commons Justice Committee reaffirms to me that there is real strength for children and young people in the gloss that the EU system adds.

The EU system is constantly evolving. The EU Agency for Fundamental Rights published a really interesting report in the spring of last year on children’s views and professionals’ experience of the justice system. The learning from a lot of that research is going into the development of the recast of Brussels 2a.

Things are not perfect at the moment; there is a lot to criticise in the EU process. However, the EU is reviewing, revising and learning, and that is going into the recast. Scotland would be missing out if we did not look at what is happening in the recast, such as the added value in relation to the experience of our children and young people in very difficult situations, and we should incorporate that into our learning and thinking.

10:30  

Do you have experience of children not being heard and being more or less overruled, as Professor Beaumont said?

Yes, definitely. It does happen. We have not got it right at all so far. Whether under the EU process or under the Hague conventions, there are problems with children getting heard in the courts.

Would you like to go next, Professor Carruthers? I would like to hear from the panel as much as possible and then I will come back to committee members.

In support of what Professor Beaumont said, it is absolutely true that with regard to parental responsibility and maintenance, in the event of a cliff-edge Brexit, there is an alternative international regime that operates under the Hague conventions. The Hague maintenance convention, the 1980 Hague abduction convention and the 1996 Hague child protection convention are alternative instruments that we could rely on.

We could sit here and do a line-by-line, word-by-word comparison of the various instruments. On some points, we might say that the Brussels regime is better and, on others, we might say that the Hague regime is better, but there is no great purpose in doing that at this point because it will be a matter of judgment on fine points of interpretation. It is important to recognise that there is an alternative regime in those areas.

However, the Hague regime is not entirely comprehensive. On maintenance, the Hague regime is less good than the EU regime, in so far as there are no direct rules of jurisdiction. On the allocation of jurisdiction—which court can exercise competence over various matters—there are differences between the Hague and EU systems. The fact that the Hague system does not give us direct rules of jurisdiction is possibly of particular relevance. The lack of those rules is more significant than certain other aspects.

One also has to bear in mind that the UK is bound by those international instruments—those Hague conventions—by dint only of its membership of the European Union. Steps would have to be taken, and taken quickly, in the immediate aftermath of Brexit to ensure the continuity of application of those international Hague instruments and that there was no hiatus.

It is really important that we talk about how children will be affected, but I will ask questions about that a bit later.

I come back to Janys Scott’s example, in which two cases are being heard in different courts. What are the different options to counteract that situation? Presumably, the legal profession has been pondering that since June 2016. You have highlighted what might happen, but has anything been formulated to try to make the best of the situation if there is a cliff-edge Brexit?

A group of English family law organisations—including my colleagues at the English bar in the Family Law Bar Association, Resolution, which is an organisation for English family law solicitors, and the International Academy of Family Lawyers—took the view that we should not rush to ditch the EU instruments if there is a cliff-edge Brexit or a withdrawal bill that gives us the worst of all possible worlds.

The solution that the group proposed, which has been endorsed by the bar in Scotland, is to see whether we can continue with the current position on at least a transitional basis to give us breathing space to ensure that families know where they stand for two or three years. The fear is that we will suddenly be left in a quandary, particularly if the withdrawal bill does not recognise that these are reciprocal arrangements and tries to implement unilaterally what we have been doing reciprocally. Our proposal to the committee, if you would care to adopt it, is that, in family law at least, we should have a longer breathing space with transitional provision.

How confident are you that that will be acceptable to everyone involved?

That is more of a political question than a legal question. I have told you the solution that was proposed by the lawyers. The big political issue relates to the European Court of Justice.

The Court of Justice is not involved in substantive family law, as far as we are concerned; it is simply concerned with assisting us with disputes that arise in relation to implementation, procedure and enforcement. That is not particularly unacceptable, politically, and part of what we have been proposing is that the Court of Justice should continue to do that, at least during the transitional period, so that we make sure that we are in conformity with all the other jurisdictions that implement the regulations. We are asking you please just to give us a breather.

Just to get back to basics, in a case such as the one that you talked about, which you said might be heard in France or here, if the father had custody of the child in France and the mother wanted custody here, in which court would the action start? Who would hear the case?

There are a variety of answers to that. The basic provision under all international instruments is that the most appropriate place is the place where the child is habitually resident. There is an issue in divorce proceedings where people agree to decisions about children being taken in the court that heard the divorce proceedings. In the case that I described, I was more concerned with the divorce and the financial remedies that follow.

Is custody outside that?

It can be, yes.

Okay.

One of the things to bear in mind is that there are lots of different areas and aspects of family law. There is parental responsibility—which is what you have been talking about; the old word for that is “custody”, and it relates to where the child lives—child abduction, where a parent takes a child across a border, and divorce and the money aspects that go with that.

In my written evidence I tried to make clear that there is a range of answers for those different areas. In sum, as Professor Beaumont pointed out, there are Hague conventions that can step in and take the place of EU law if EU law falls away entirely. There are some differences between the Hague conventions and EU law, but they cover substantially the same areas. We could quibble among ourselves about which we like better, but it is the case that child abduction and parental responsibility are, to an extent, covered by a different international treaty.

I deal mainly with divorce and financial matters, and my main concern is how that area will be impacted, because there is no international treaty that springs into place to deal with it. The difficult question is what we can do. There is a range of options, but none is ideal or even great. The current system is not ideal.

I do not want to speak on anyone else’s behalf, but I think that it is possible that most of the panel members agree that the route down which we are heading with the European Union (Withdrawal) Bill is the worst of all possible options for a solution to divorce and financial matters. What the bill will achieve is the replication of the EU law in our national law, but the EU law works only because it is reciprocal, and we will be making it entirely one-sided. The Scottish court will need to pay attention to and defer to the other 27 courts, but those courts will not have to defer to or pay attention to us. That is a problem. On the face of it, the bill might seem to contain a solution—“Oh, let’s just replicate the law all over”—but it is not a solution.

The question then is what else we can do. Do we keep things going for a transitional period, as Janys Scott suggested? Do we keep things going permanently, as Resolution and some of my English colleagues have suggested? They suggest that we just replicate EU law and keep it going on a reciprocal basis; negotiation will be needed to achieve that. Do we just let EU law fall away and fall back on the old Scots law of forum non conveniens? Do we try to deal with things in that way?

We can debate the pros and cons of that. In part it depends on the political will and what is politically achievable. We can tell you what the legal pros and cons are, but perhaps we cannot tell you what is politically achievable. When I deal with divorce and financial cases, I love arguing forum non conveniens—it is really interesting. However, it is expensive and can be quite time consuming, and it is discretionary, so there is no clear answer. I cannot tell a client at the start of the process, “We’ll be dealing with this in the court in Aberdeen rather than in the court in Munich.” I cannot make that call; people have to argue the case in that regard.

The balance in the legal system, for a lot of issues, is between clarity and fairness. Do we have a system that is very clear and gets us to a fixed outcome that can be predicted, or do we have a system that is weighted more towards individual discretionary fairness on a case-by-case basis? It is a difficult balance to achieve. Forum non conveniens is fairer but less clear.

I will bring in Professor Beaumont again. Daniel Johnson, Ben Macpherson and Liam Kerr are on the list to ask questions, but we want to hear predominantly from the witnesses.

Thank you. Lucia Clark is right in what she has just said. I will add a gloss from my experience as a negotiator for both the UK and the EU on different issues, although I am currently negotiating only for the EU in a commercial context.

It seems unlikely that we will get a bespoke deal simply on Brussels 2a in the future. Why would the EU agree to that? Why would the UK agree to it? The fundamental problem is that, in the long run, doing so would mean accepting the jurisdiction of the European Court of Justice when we do not have a judge on that court. It does not seem to be a very rational solution.

We can argue about a transitional arrangement, as it is obvious that there will be a transitional period unless there is a no-deal scenario. In that transitional period, Brussels 2a and the other regulations will continue to operate. However, at some point they have to stop operating if we do not stay in the European Union—staying in it is a different proposition. If Brexit is to continue, it makes no sense whatsoever to try to negotiate a bespoke bilateral deal between the UK and the EU on some aspects of family law.

The forum for that kind of agreement should be the Hague, and we should try to have an international agreement on divorce issues there, if we want one, and those issues should be revisited there. The only reason for doing that would be if the UK wanted to remain, in the long run, a closely associated state of the EU in relation to the European Economic Area. That is a political decision. However, even EEA states do not have bespoke deals on family law—let us be blunt about that. Norway does not have one; Switzerland does not have one; Iceland does not have one. It would be unique and highly unusual for the UK to get one, and I do not think that the EU would invest the time and energy in trying to negotiate it. That is not realistic.

As I said, I think that reverting to the common law in the sphere of divorce would not be a huge problem. Remember that people would be in exactly the same position that they are in currently with regard to being able to get a divorce judgment recognised and enforced elsewhere. That is absolutely clear for financial provisions, because the Hague maintenance convention is exactly the same in its scope as the EU maintenance regulation. We are not part of the EU matrimonial property regime, which is an enhanced co-operation regime, and we have no intention of becoming part of it. Therefore, whether or not we are in the EU, the capacity to get divorce financial provisions recognised and enforced in EU states will be exactly the same after Brexit as it is now. That is the reality.

The only difference, which Janys Scott pointed out, is on conflicts of jurisdiction. That is the only substantive difference and yet, sadly, the UK committees did not point that out. They did not do a proper job. Their evidence was not very good—nobody asked me, for example. They did not come to an objective analysis of the relative merits of the two systems. They were driven, in my humble opinion, by politics, and that is not a good thing.

On this point we should be objective, not driven by our pro or anti-European views. For the record, I voted for remain and I am a committed European, but when I look at this issue, I wear an objective, analytical hat. I do not let my politics drive my analysis.

I want to make one small point in reply. If one is looking at maintenance, one has a question about what maintenance is. A very helpful decision of the European Court of Justice says that maintenance is anything that is awarded having regard to needs and resources for somebody’s support. It is not just how much someone gets per month. It can be a lump sum or the provision of a house.

There is nothing similar in relation to Hague. There is no court that can determine between nations what a particular concept means for the purpose of Hague. That is where the EU regime wins out over the Hague regime—there is nothing supranational to resort to. I do not know exactly what will be packed into the concept of maintenance. I know what is packed in at the moment in the European regulations—and I know that I can go to the Court of Justice if I want further clarification of that in Scots terms. However, there is a problem there, and I lack confidence in the solutions that are being put forward.

10:45  

People will not suddenly start getting divorced from other people living outside the EU if we leave the EU—I say “if” because I am optimistic. What happens currently? What are the practicalities of that for Scots who are divorcing people from other parts of the world? What issues do they face? “Hague” has been referred to quite a bit. I am sure that I am not the only one who is probably not as up to speed with that as they would like to be, so if somebody could explain it, that would be quite useful.

I was going to ask about that earlier. A lot of terms are bandied about. It would be useful to have the Hague and the Brussels 2a maintenance regulations that we are dealing with laid out in as plain English as possible. One of the problems that we talked about is how people pick up such things. It is vital that we look at it. Part of the reason why understanding is lost is that we bandy about terms without laying out as clearly as possible what they all mean.

I was going to ask about the Hague convention. You have described a dynamic process in relation to the EU Brussels regulations. It would be helpful if an explanation of Hague included a description of how dynamic that process is. I think that the conventions that have been referred to date from the 70s and 80s, but I presume that there is a process whereby updates can be taken on board where that is felt necessary.

I have been going to The Hague and to Brussels for 20-odd years, so I will try to answer on the basis of having quite a lot of experience of working in both organisations. The Hague conference is the Hague Conference on Private International Law. It is the international organisation that deals with private international law—it is the private international law’s United Nations—and it encompasses the whole world. At the moment, not all states in the world are party to the Hague conference—about 80 states are. Some of the most successful conventions have even more parties than that; the child abduction convention has more than 90 contracting states. It dates from 1980 and deals with cases where parents abduct a child from one contracting state to another. It is a system that, in principle, requires the child to be returned to the country from which he or she has been abducted, and it works very well. A sophisticated set of case law has been developed not by a unified court but by the senior courts throughout the world. We have clear jurisprudence from the UK Supreme Court, the US Supreme Court, the Canadian Supreme Court, the Australian High Court and the French Cour da Cassation—the highest courts in all the major countries in the world.

We develop uniform jurisprudence in interpreting international treaties through careful interaction between the highest courts. In the European context, it is sad that even when the Court of Justice is interpreting international conventions it does not look at the jurisprudence from other countries; it takes a unilateralist, Europeanist position. It is not notably internationalist. I say that with a heavy heart, but it is the truth, and sometimes we have to speak the truth to power. That is the problem with the European Union. The Court of Justice views everything from the perspective of European integration. It is politically driven; it is driven by an agenda of a federal Europe. You might or might not believe in that, but that is its raison d’être. Even when it interprets international treaties, it does not look for a uniform international interpretation; it looks for the interpretation that best suits European integration, which is a bit of a conflict of interest in our area.

Child abduction is dealt with by the 1980 convention. Parental responsibility and access is dealt with by the 1996 Hague convention, adhesion to which is growing, although there is still a long way to go—more than 40 states are signed up, including all the states of the European Union. Brussels 2a is modelled on the 1996 convention. It gives a perfectly workable regime for recognising and enforcing orders in relation to parental responsibility and access in the 40-odd countries that are party to it. Post-Brexit, if we did not have a bespoke arrangement, all the EU states would apply Hague 1996 and Hague 1980 to us. That is part of the EU acquis, which it will not abandon. That will stay in place, so there is no cliff edge.

We move on to maintenance, which is covered by a more modern convention: the 2007 Hague convention, which I negotiated. We then built the EU maintenance regulation 2009 on the back of that. Janys Scott is right to say that it basically follows the convention with additional direct jurisdiction rules. However, I do not see great value in direct jurisdiction rules. We can have our own direct jurisdiction rules, but the EU direct jurisdiction rules are not going to change.

We know what rules the EU operates and we can operate either exactly the same rules or similar rules. There is no big certainty problem there, because clients will know what the rules are in Europe because they are what is in the EU regulation. You can take your choice. It is not a big problem whether we are in or out—it makes no difference.

Those are the three areas of family law that are covered by conventions. The maintenance convention is growing in popularity—as I said, it was recently ratified by the US and Brazil. Globally, there are several countries that are coming on board. All the EU countries are party to it because it is part of the EU acquis, so they will stay party to it post-Brexit.

Janys Scott is right that we have to become an independent contracting state to the maintenance convention because at the moment we are only party to it as a member of the EU. I know that the UK Government is committed to doing that. There is a technical problem in relation to a transitional issue, but given that we have a transitional arrangement, I hope that we will be able to make that work. That should be okay.

In family law in relation to children, we have three international regimes, with many international parties, which will apply to the UK. We have a separate, different regime that we operate with the EU. If we leave the EU and do not continue with those arrangements, we will continue to operate the international regime with the rest of Europe. It will be easier for students, practitioners and most other people to deal with. You have to ask very hard questions about whether there is sufficient added value in the EU system to justify having a totally separate regime, which would have boundary issues in its application.

Divorce is the one area in which we do not have a successful international regime. There is a Hague convention on divorce and several EU states, including the UK, are party to it, but it covers only the question of recognising the divorce itself, which is rarely controversial even without any sort of treaty regime, because states have their own unilateral rules on recognition and enforcement. It is highly unlikely that any divorce decree granted in Scotland or the rest of the UK will not be recognised in another European country post-Brexit in the absence of any treaty framework.

That means that we are really talking about money, because custody is dealt with under the 1996 convention. As I said earlier when we were talking about money, spousal support, which is covered by EU law, is also covered by the maintenance convention. That is a fact. The dividing line between matrimonial property and maintenance, which the Court of Justice has outlined in several cases—including Van den Boogaard v Laumen—will be the starting point for the Hague, too, because those who negotiated the Hague convention understood what the current concepts were on the division between maintenance and matrimonial property. It is in the explanatory report. I do not see any difficulty in thinking that the Court of Justice’s broad view of maintenance will be maintained.

In the future, I worry that the adoption of the enhanced co-operation matrimonial property regulation by many member states, but not the UK, will mean a slight diminution of the definition of maintenance in the EU, because they may put more back into the matrimonial property side. That would be a bad problem for us even within the EU, because we are not in the matrimonial property regulation.

That is a very full explanation. I am sure that others will want to pick up on it.

Rona Mackay and Ben Macpherson want to come in, so I will bring them in and then some more witnesses.

You were in danger of losing me there, I am afraid, Professor Beaumont. I want to pick up on your point that it does not really matter which regime we choose to use, because there is very little difference. However, what do you say to the points that we have heard about there being no reciprocity, that the situation is all very one sided and that while we might do something, others do not necessarily have to agree to it?

That is a good point. You are right: I did not get to that.

On reciprocity, I would not continue unilaterally to apply a lis pendens rule that the other side is not applying. I do not see any advantage in that. If we have conflicts of jurisdiction in divorce cases, I would like to see us move back to forum non conveniens, make our own decision and encourage reciprocity in the international sphere. That will take a long time; I do not pretend that it will be sorted out quickly. However, there is room to revisit the issue of divorce in the international sphere and to try to get a better regime on conflicts of jurisdiction. That would be the ideal solution.

On a unilateral basis, we should accept that there is quite strong evidence. I can refer the committee to cases in which, as I said earlier, people have been exploiting the lis pendens rule because the provision on divorce in different systems in Europe is markedly different. Even in the UK, that is a problem. Practitioners tell me that there is a big incentive for women to go to England rather than Scotland, if they can, because the English financial provision tends to be more generous to wives than that in any other European regime. There is therefore a well-documented tendency for people to exploit the race to court and to use the fairly generous jurisdiction rules that exist on divorce to enable, in the one case, women to go to England, predominantly, and, in the other case, men to go—or to escape—to France, Italy or some other European country

That is a real problem, which was identified in the commission’s expert group. One solution would have been to create a transfer provision, as we have for child cases, whereby we can transfer a case from one court to another. I had better be careful in what I say. There were a number of people in our expert group who favoured such a provision. In the end, the commission did not introduce any changes on divorce in the Brussels 2a regulation. That was for political reasons. It was frightened about certain eastern European countries raising the question of same-sex relationships. Although there is a dynamic approach to family law in the EU, it is tricky because it requires unanimity. Therefore, in order to get any development there, all 27 states—if Denmark were out, but the UK were to opt in—would need to agree. The dynamism of the EU in this area is not an easy matter, because it is driven by unanimity in exactly the same way as the consensus-based system of the Hague conference.

There was quite a lot in that. I would like to direct a question to you, Professor Beaumont, but it would be good if Lucia Clark could come in.

Ms Clark, I think that, in your submission, you mention both mutuality and reciprocity. Is there a difference?

I think that I mainly mentioned reciprocity.

Perhaps someone could explain the difference. The two terms are used somewhere.

I want to pick up on Mr Johnson’s question. He asked how we deal with divorce cases involving a Scottish person and another country that is outwith the EU. I deal with those quite a lot. The answer is that such cases are quite difficult and problematic.

There is a variety of ways in which we can try to sort things out. We can hope that everybody will be sensible and agree, in which case we can just negotiate a deal and not argue about which court should deal with the case.

It is problematic if there is a link to a middle-eastern country—for example, if the husband is living somewhere like Dubai or Abu Dhabi. In such a case, he might try to use a very quick system to get a divorce, in which the wife does not have an opportunity to participate. He might get something through very quickly, without financial provision for her—perhaps through something similar to the Islamic regimes. In such cases, we are left with trying to race to get a decree of divorce here. There is a competition over who can get to the end goal most quickly. It is not about who can start proceedings in court first, but who can get to the point of having a divorce and financial orders.

11:00  

Can you give a specific comparison with jurisdictions that are more similar to ours—for example, Norway or the United States?

Yes. A case in America, for example, might involve an argument about forum non conveniens regarding what is the most convenient forum and the best place to hear the case, given where the assets and witnesses are and where the parties have the most links. We can also run that argument in the Scottish court, which can say “Yes, we agree we’re the best place to deal with the case” or “No, we’re not.” However, one of the difficulties with that kind of argument is that a court in, say, Alabama is not bound to follow it and might say “No, actually. You may think that you’re best placed to deal with it, but we don’t agree and we’re going to keep ploughing on and run the divorce here.” The result would be parallel proceedings, which are expensive and difficult.

Proximity must exacerbate that risk. I am thinking about Ireland, which is probably one of the jurisdictions where the issue would come up most. It might be quite difficult to determine where people are living and where the assets are because people could be living between two places.

Ireland currently uses the lis pendens system—first past the post—but if it went back to forum non conveniens and people with quite equal links were split between countries, it would become a judgment call. I have also had cases where, frankly, it has just become a stalemate because nobody can afford to run those kinds of jurisdiction arguments, which are very interesting to lawyers but not very interesting to the spouses, and the case just sits there until somebody eventually gives in. There is no effective way of looking at that.

How big a problem would it be if we were operating that within the European Union? As you said, the countries are closer, so we could argue that the problem would be bigger. I wonder, though, whether Scots tend to emigrate to other places rather than to places within the EU. I am not certain, but I would be interested to know how big a problem in terms of numbers of cases it would be. There would certainly be more cases clogging up the courts and making very interesting work for lawyers, but that would not be so interesting for the families involved in such cases.

I return to a point that Professor Beaumont raised about England and Scotland. I am dual qualified in Scots and English law and I deal with cases that go through both the English courts and the Scottish courts. There are a lot of cases where, for example, husbands would quite like to be dealing with things in Scotland and wives would quite like to be dealing with things in England. It is occasionally the other way round, but that is the stereotype. The EU rules do not operate between England and Scotland comprehensively through the regulations, so the Brussels 2a regulation, which deals with where people can divorce, does not operate between England and Scotland; instead, there is an internal UK law that states that the place where the couple last lived together determines where the case will take place. That is a definite, fixed rule that works quite clearly and well.

However, the maintenance regulation, because of the way in which that has been implemented between Scotland and England as an internal UK matter, operates between Scotland and England, which causes some problems. There are currently cases where divorce and division of assets are being dealt with in a Scottish court and spousal maintenance is being dealt with in a court south of the border. That makes very little sense to me, but that is something that we can fix internally.

I know that this is not the purpose of this evidence session, but the flaws and discrepancies in how things work between Scotland and England are a real, day-to-day bugbear in my job. How we implement the EU law between our respective countries and how that flows is not well thought through.

I will bring in Ben Macpherson then John Finnie. It would be good if you could bring your questions together.

I will try to bring the theoretical and practical together in my questions. My questions are directed specifically to Professor Carruthers and Janys Scott QC.

Juliet Harris stated that the European Union (Withdrawal) Bill will have disadvantages for individuals who have a family dispute going through the Scottish courts. Does the bill have any other theoretical or practical disadvantages?

Professor Beaumont’s points on the Hague conventions were interesting. Is there clarity on how they can guarantee protection for Scots on exit day? I do not want to quote selectively, but he stated that, although a number of areas should be okay, there would be a gap with regard to divorce.

My understanding on reciprocity is that a number of changes to family law at an EU level are expected to commence weeks or months after exit day. What challenges would divergence present?

Before I bring in John Finnie, I say that we aim to conclude the session at about 11.15.

I have a brief question about two terms that the committee hears quite often: access to justice and legal certainty. In the present situation, is the panel’s view that there is access to justice because there is legal certainty?

I will also bring in Mairi Gougeon to ask just a little question.

I will try to make it little, but a lot has been raised in the meeting. Even if I cannot get answers to the questions, it is important to ask them anyway. A lot of the points that I was going to ask about have been covered.

How much of Scotland’s domestic law, especially family law, is based on EU regulation or directives? What impact will that have when we leave? The negotiations are taking place at the UK level, but we have a separate legal system in Scotland. If an agreement is reached for the UK as a whole, what impact might that have on Scots law and the development of law in the future? I was interested to hear of Professor Beaumont’s input to directives—it seems that the UK plays an important role in the formulation and direction of law. Moving into the future, how can we have an impact on that?

We have heard that there will be gaps in relation to the European Union (Withdrawal) Bill. How confident are panellists that the issues that they have raised are being looked at? Are they able to feed in to the process? Is there anything that we can do to influence the situation in relation to Scottish law?

We will try to attend to all the questions that have been asked. The first was Ben Macpherson’s question about the practical and theoretical disadvantages of Brexit for this area.

There is a lot to talk about. I urge the committee to look at the profile of family law. It is a long way down the list, compared with trade negotiations and so on, but it is important for citizens in Scotland and the UK. Can we raise the profile of family law, please?

We are looking at procedure: where to litigate and what happens at the end of the litigation. We have no challenge to the integrity of Scots law as it is administered in Scottish courts in the middle of that. However, family law, as the committee will be aware, is a fast-moving field and there is rapid development of what is viewed as the shape of modern families. Our issue is how responsive our procedures are to that development. Professor Beaumont spoke eloquently about the Hague conference, which is a group of people who formulate a treaty internationally to which member states can sign up or not. Some treaties are more successful because they are well signed-up to, whereas others have few signatories. Those are on very contentious areas.

In Europe we have a more hands-on position where there are fewer states. Admittedly, it is very hard for the 27 states to formulate a position on some of the issues, but we have got to a point where there is greater legal certainty and therefore, as Lucia Clark was explaining, less distress, because you can tell people what the situation is.

One thing that has been left out from the academic perspective is the number of times I can sit down with a person and say, “This is what will happen—don’t waste your money.” You do not see those sorts of negotiations and advice in the international research on the cases that are launched. Such things have a big effect behind the scenes.

On the recasting of Brussels 2a, there is a third development in the way that the regulation is going, with regards to procedure and enforcement. As Juliet Harris has eloquently explained, a lot of the issues arising from the UN Convention on the Rights of the Child have been taken on board. It would be difficult to go back into those issues in the Hague.

There was a really bright point there and we do not know where we will stand with that recasting because we do not know when it will come into force, we do not know how it will be dealt with in terms of the withdrawal bill, and we do not know whether we will be ossified in the current regulation or whether we will be able to take on board the developments that Juliet was talking about.

I do not know whether that gives some of the answers.

That is good. Does anyone else want to comment on access to justice and legal certainty?

In response to Mr Macpherson’s question about the impact of the withdrawal bill from the UK citizen’s point of view, I will emphasise something that we have already mentioned: there will be a loss of reciprocity on the existing solution because the UK will apply a lopsided version of the Brussels 2 bis regulations on parental responsibility and maintenance.

Based on current drafting, we will continue to honour our existing obligations but the other member states will not because they cannot, in terms of the wording of those regulations, be reciprocal in their application. That will be a disadvantage to UK citizens.

The second potential disadvantage is that on the basis of the withdrawal bill, we will take a snapshot of those regulations as they stand on exit day, but EU law is not fixed in tablets of stone. It will change from time to time. We will have a version of it as it stands in March 2019 while all the other jurisdictions develop in line with case law and other regulations that they might decide to recast.

The lopsided nature of the situation will give a very imbalanced set of rights to UK citizens. In contrast to what Professor Beaumont said, but in line with what the House of Commons Justice Committee report and the House of Lords EU Select Committee report said, I would very much favour an attempt by the UK Government to negotiate some agreement with the EU27, not just on Brussels 2 bis—I think that it is, as Professor Beaumont said, completely naive to imagine that the EU would enter into a bespoke agreement on one regulation.

We have a whole suite of EU regulations in this area that have given us a very sophisticated set of rules for cross-border problems, not only for families but for consumers, employees and businesses. Looking in the round at that suite of regulations, it would be possible—in line with what the House of Lords and House of Commons committees have favoured—to try to negotiate some sort of bilateral solution whereby we retain all the great benefits of speed and more limited costs that the EU regulations have brought. I would support that as the current negotiating position.

Would there be a guarantee on the Hague conventions available to Scots on exit day if there was a hard Brexit?

There is no guarantee in terms of the operation of the Hague conventions; there is no single court of overarching interpretative jurisdiction in the way that we have the Court of Justice of the European Union for the European regulations. No guarantee can be given; all the courts of contracting states could be trusted to implement and operate the Hague conventions as they have been doing to this date but I would not give a guarantee on it.

11:15  

I want to pick up on two points. The first is on Mr Finnie’s question of whether there is greater access to justice at the moment because there is certainty.

As I tried to point out earlier, where there is a discretionary system about fairness, it is easy to laud that and say how wonderful it is, but if it means that clients coming through my door cannot afford to litigate, there is little point in having it. I see that situation because I deal with English cases, which are much more discretionary, and Scottish cases, in which the domestic law is much more certain. I sometimes have English cases in which I think that somebody would have a wonderful case if they could afford £10,000 to take it to a final hearing, but they cannot, so the Scottish system is able to serve them better because it is more certain.

That is a comparison on that point. We can extend that out and ask whether the first-past-the-post rules give greater access to justice because they are clearer and everybody knows where they stand, even if it is perhaps not the fairest system case by case. They arguably do. Having said that, I do not like that system. It is not fair but it might be the best of a bad set of options.

All these conversations are about the experiences of children and young people. We are talking about children being taken to another country, being separated from their parents and going through really traumatic points in their lives. Whether we are talking about the Hague conventions or Brussels 2a, a really important point for the committee to consider and the UK Government’s negotiations to address is where the child is in the discussion. How can we ensure that, whatever procedures are in place, the child’s views are heard and taken into account and their best interests are central to proceedings? We know that that produces the best outcomes for children and young people and that it is the best thing for your families and constituents.

I agree with Janys Scott and urge the committee to raise the profile of family law in the Brexit discussions. Raise the profile of children and young people because their voices are not being heard and they are essential in family law processes.

Are there any final words?

I was asked earlier about the dynamic nature of the Hague conference and I did not answer. The Hague conference will not constantly revise its conventions because that is not the way that it operates and it is not the way that international law tends to operate.

I accept that one of the advantages of the EU system is that we can constantly revise if we remain in the EU. However, we cannot do bespoke deals with the EU on the basis of constant revision. Let us be honest: either we are in the EU, are able to do all those things and can be a full player or we are not. If we are going to have Brexit, there are implications. We cannot mimic the EU from the outside. That is the reality. Some people are trying to mimic it but, in the long run, that will not work. That is why, in the long run and putting transitional arrangements to one side, we have to get used to the idea that we will not operate an EU-based system in family law. The rational thing is to operate an international system and try to make it work well.

I am involved in the Hague conference as the chair of an expert group that is trying to get a convention based on a radically new idea to promote family agreements, which are not good within the EU system or the international system. An opportunity exists to try to get a new convention that would encourage family agreements, which are the real way to protect children’s rights. The idea is for parents not to fight or have disputes but to resolve matters as sophisticated adults whose own relationship has broken down but who, for the sake of the children, will sort things out properly. Such a convention would provide a system whereby family agreements would be recognised and enforced throughout the world, which we do not have at the moment. We have no system of promoting agreements within the EU or externally. That is the reality and we need to try to improve it. The one forum that is considering it at the moment is the Hague conference, not the EU.

We will leave it there, as the clock has beaten us. One thing is crystal clear: if anyone thought that family law would not be contentious, we now know that that most certainly is not the case.

I thank all the witnesses for their evidence, which is invaluable to the committee. We will use it to consider how we move forward.

I suspend the meeting to allow for a change of witnesses and a five-minute comfort break.

11:19 Meeting suspended.  

11:28 On resuming—