Private international law concerning children in the UK after Brexit: comparing Hague Treaty law with EU Regulations

Abstract

Private international law applicable to children in intra-EU cases in the UK under EU law (the Brussels IIa and Maintenance Regulations) is compared with the regime that would apply to such cases if the UK were to fall back on the international treaty regime governing the UK and the EU after Brexit. The treaty regime is found in the Hague Conference on Private International Law's Conventions on Child Abduction (1980), Child Protection (1996) and Maintenance (2007). There is no 'cliff-edge' because the international regime is very sophisticated and can be regarded from a UK perspective as being at least as good as the EU regime. In particular, the international regime has the merit of everyone in the UK having to master one fewer legal regime (because the international regime for non-UK/EU cases exists anyway). The international regime avoids the unsatisfactory EU 'override' mechanism in child abduction cases, the overly rigid approach to recognition and enforcement of maintenance and access orders coming from other EU states, and the restrictive approach to declining or transferring jurisdiction in relation to third states. However, the EU regime creates greater legal certainty in UK/EU maintenance cases through lis pendens and broader party autonomy in parental responsibility and access cases.