Children of divorcing parents could be caught up in a judicial war after Brexit if the UK and EU do not agree a deal, Government officials warned today.
The UK’s departure from the EU means an end to raft of laws and conventions designed to help parents of different nationalities settle divorce and child access cases.
If the EU does not agree to UK demands to replicate the existing rules – a situation not enjoyed by any other country – a British parent would be in a substantially weaker legal position if their EU partner took a child to their home country without permission.
The confession came as officials from the Ministry of Justice and Brexit Department set out plans for a “cross-border civil judicial cooperation framework”.
The officials were asked what would happen if, in a ‘no deal’ scenario, “a British mum has a French husband, and the French husband takes their child to France, but the British court says the child should come back to the UK.”
An official replied: “If we don’t have a future agreement of the type we are proposing here, we’ve left the European Union, under those circumstances we’d be looking at whether there are any other international agreements that govern child abduction.
Another added: “The thing you get at the moment you wouldn’t get under alternatives is a discussion between the courts. In that scenario it would have to be a discussion between the French courts and the British courts as to what’s going on with that particular child.
“That wouldn’t happen under the Hague [Abduction] Convention.
“What we are saying is there are a range of international agreements, many of which pre-date the EU’s arrangements, but they are not as sophisticated, not as effective.
“It would be much more difficult.
“You have a range of time limits that come with the EU measures which aren’t necessarily there with some of the other agreements we’re talking about like the Hague Convention.”
Want to know what’s really going on with Brexit? Sign up for HuffPost UK’s Brexit Briefing - sent straight to your inbox every Thursday.
The civil judicial document is the latest in a number of papers published by the Brexit department ahead of negotiations with the EU resuming in Brussels next week.
The report calls for a “new relationship based on mutually beneficial rules and processes” in order to ensure trade, commerce and family life have recognised legal protections.
Echoing the Government’s position paper on customs arrangements, the document calls for an “interim period” after March 2019 to allow the new legal system to be implemented.
In January, Theresa May was clear that the European Court of Justice should play no role in UK law, but language from the Government seems to have diluted slightly.
In an article in the Sunday Times at the weekend, Brexit Secretary David Davis spoke of the ECJ having no “direct jurisdiction” in the UK - a phrase repeated in the today’s document.
Yet while the report was clear that the Government wanted “continued close and comprehensive civil cooperation” after Brexit, there was little detail as to how that relationship would exist in practice.
Labour MP Wes Streeting MP, supporter of ant-Brexit group Open Britain, said: “The Government’s hypocrisy on this issue is mind-boggling.
“It is they, not the EU, who have said repeatedly that no deal is better than a bad deal. And yet now they admit that a Brexit with no deal on judicial cooperation could put British children in legal limbo.
“Ministers need to drop their absurd rhetoric about no deal, and focus on negotiating an agreement with the EU that guarantees British families and children will not lose rights and protections as a result of Brexit.”
Liberal Democrat Brexit Spokesperson Tom Brake criticised the vagueness of the report, and suggested “even Brussels must have had enough of this waffle by now.”
On the revelation it would be harder to return abducted children to the UK, Brake said: “This exposes the reality of a no deal Brexit, abducted children at greater risk and families plunged into uncertainty.
“The Government needs to end its heartless insistence that no deal is better than a bad deal.
“Avoiding the devastating human consequences of an extreme Brexit should come ahead of the ideological obsessions of Tory Brexiteers.
“The Conservatives claim to be the party of family values, but their plans would risk tearing more families apart.”
Officials confirmed the Government would set out its proposals for what should replace the ECJ when it comes to disputes involving the UK and EU on Wednesday.