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ECJ case illustrates family law issues raised by Brexit

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I often write here about European Court of Human Rights (ECHR) cases. One of the many misconceptions regarding Brexit is that it will entail the UK withdrawing from the ECHR, and obviously anyone with such a misconception may wonder why I spend so much time considering ECHR cases if they will soon be of no relevance to us. Of course, Brexit does not mean withdrawal from the ECHR, as the ECHR is not an organ of the European Union (EU).

Brexit does, however, mean withdrawal from the European Court of Justice, which I will henceforth refer to as the ‘ECJ’, but which is often referred to by other initialisms, such as the ‘EUECJ’ or the ‘CJEU’. The ECJ exists (amongst other things) to interpret EU law including, of course, the provisions of EU law relating to family law matters, such as the Brussels IIa Regulation, which deals with jurisdiction for divorce and issues about parental responsibility for children.

As has been mentioned here previously, there is concern amongst family lawyers about the effect of Brexit upon access to justice for ‘multinational’ families.

I don’t think I have ever previously written here or elsewhere about an ECJ decision, but I’m going to do now, simply as an illustration of the implications of Brexit upon family law. The decision is Valcheva (Concept of ‘rights of access’ – Applicability to grandparents – Opinion), which was handed down last week by Advocate General Szpunar, who is the Polish representative in the ECJ – each country of the EU having one judge sitting in the court.

The question that arose in Valcheva was a common one: in a multi-country dispute about children, which country’s courts should determine the matter? As we will see, to answer such a question we must have a rule applicable in both countries and, if necessary, a court that is capable of interpreting that rule.

The facts in Valcheva were that the relevant child was born in 2002 to a Bulgarian mother and a Greek father. Their marriage was dissolved by a Greek court, which awarded custody of the child to the father. The child thereafter resided with the father in Greece.

The maternal grandmother, Ms Valcheva, was unable to maintain quality contact with her grandson, and therefore ‘sought the support of the Greek authorities’, which I take to mean that she applied for contact to the Greek courts. Unfortunately for her, she was unsuccessful. She therefore made a contact application to her local court in Bulgaria.

The Bulgarian court ruled that it did not have jurisdiction to deal with the application, on the basis of Brussels II, which says that jurisdiction in cases relating to custody and access to a child lays with the courts of the member state in which the child was habitually resident at the time of the application. Accordingly, the Greek courts had jurisdiction to deal with the case, and the Bulgarian courts did not.

Ms Valcheva appealed to the Bulgarian Supreme Court of Cassation. That court stayed the appeal, and referred the case to the ECJ for a preliminary ruling as to whether the concept of “rights of access” used in Brussels II was to be interpreted as encompassing not only access between the parents and the child, but also the child’s access to relatives other than the parents, including grandparents.

The ECJ ruled that the concept of “rights of access” must be interpreted as meaning that it extends to the rights of access of grandparents to their grandchildren. In a lengthy and detailed judgment Advocate General Szpunar concluded for various reasons – in particular the primacy of the best interests of the child as the guiding principle of any interpretation of the provisions of Brussels II – that that regulation also applies to a request for rights of access by grandparents.

Interestingly, Advocate General Szpunar said this “by way of epilogue”:

“It is true that [Brussels II] concerns only rules of jurisdiction, recognition and enforcement of judgments in matters of, inter alia, parental responsibility. Therefore, at this stage in the development of EU law, the issue of the persons to whom rights of access will, or will not, be granted is a matter of national law. That is why it is particularly important to have a single and uniform rule of jurisdiction, that is to say the jurisdiction of the authorities of the Member State of the child’s habitual residence, in order to ensure the recognition and enforcement of judgments given in the various Member States.”

I don’t think this was a particularly important case, but it is illustrative of the workings of EU law and the ECJ. What would happen in such a case without those things? This is a question that must be answered by the Government when it deals with this aspect of Brexit.

You can read the full report of the case here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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