The recast of the Brussels iia regulation
28th October 2016
The Minister of State for Courts and Justice, Sir Oliver Heald, made a written statement in parliament yesterday that the UK will opt into Brussels II recast.
This is hugely important, and welcome. Whilst there is obviously a considerable degree of uncertainty in relation to the post-Brexit landscape it may be that UK citizens will enjoy the additional benefits of these proposals, for at least a small period of time before the UK’s exit from the EU- depending on when the recast takes effect.
The Commission’s proposals to change the terms of the Brussels II Regulation (variously called Brussels II revised or Brussels II bis) make improvements to the EU Rules that protect children in the context of cross-border parental responsibility disputes related to custody, access rights and child abduction. The changes are designed to ensure that children will have the opportunity to be heard in all proceedings concerning their situation; will improve cooperation between member states’ authorities; allow for rapid enforcement of decisions across member states and also provide for more efficient procedures to tackle cross-border parental child abduction.
The existing Regulation has applied in the UK since 1 March 2005. Although it only applies in cross-border cases within the EU, and does not apply in intra-UK cases, the Regulation did also result in change to domestic Scottish law when it came into force, providing a new framework for the jurisdiction of the Scottish Courts.
It's fair to say that the original Brussels II Regulation took us unawares somewhat and there was anxiety at the time about what the impact of the Regulation would be on Scots law. Having become used to the Regulation in the last decade, it is now pretty much universally regarded as having been a positive development for citizens across the EU- UK citizens among them. SKO broadly welcomes the Commission’s recast proposals and a separate article will be published shortly which will outline the main changes.
Change to the Regulation will require unanimity of all member states and we don't yet know if/when the recast Regulation will come into force. While there was concern, post-Brexit, that the UK would prevent adoption of the recast Regulation, it does seem that, in Family Law at least, it is business as usual as we get on with the day-job and work constructively with our European colleagues.
