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Domestic Family Legislation Implementing and Affected by EU Instruments Report by the Brexit Working Party to the Resolution International Committee and Property, Tax and Pensions Committee This report identifies the provisions of domestic family legislation which have been brought in to implement EU instruments. The relevant provisions of domestic legislation are summarised in the table at pages 2 to 54 of the report. Pages 55 to 206 set out the relevant parts of domestic law in full, with the provisions affected by EU law highlighted red. Methodology The following methodology has been used to identify relevant law. 1. Statutory instruments made under the authority of the European Communities Act 1972 a. Review the list of SIs made under the authority of the European Communities Act 1972 (as listed on Westlaw) to identify those which relate to family law b. Review the SIs identified from the review at 1.a to identify the primary legislation which was amended to implement EU law, or those SIs which brought in standalone provisions 2. Statutory instruments made under the authority of an Act other than the European Communities Act 1972 to implement EU law a. Cross-check the statutory instruments listed in the Red Book index (and which are therefore assumed to relate to family law) with the statutory instruments listed in the House of Commons Briefing Paper "Legislating for Brexit: Statutory Instruments implementing EU law" (list of SIs collated at 9 December 2016) to identify the SIs which appear on both lists, and which were made under the authority of Acts other than the European Communities Act 1972. b. Review the SIs identified from the review at 2.a to identify the primary legislation which was amended to implement EU law, or those SIs which brought in standalone provisions 3. Primary legislation brought in directly to implement EU law a. Review the sections of primary legislation listed in the Red Book index (and which is therefore assumed to relate to family law) to identify provisions which implement EU law, in order to identify primary legislation brought in directly, for example to implement an EU Directive Caveats A. Primary sources Westlaw or Lexis Nexis have been used as the sources of legislation B. Where the Red Book index of primary legislation or statutory instruments has been used, only those sections and schedules listed in the index have been checked / legislation citing tool in Westlaw C. The Civil Procedure Rules 1998 and the SIs considered in the second stage above have been checked by word searches rather than a review of all provisions listed in the Red Book index. The following words have been searched: CPR 1998 word searches SIs (stage 2) EU EU Community Community Directive Directive Member Member EEA EEA Council Council Regulation Regulation Brussels Brussels Convention Convention EC EU Directive D. The scope is limited to legislation in England and Wales. Scottish and Northern Irish provisions have not been covered. E. The report focuses on EU law. Provisions of domestic legislation relating to International Conventions, such as the Hague Conventions or Conventions of the European Council, have been highlighted in some cases (and comprehensively in the Family Procedure Rules 2010) but this report does not comprehensively identify convention provisions, such as those relating to child abduction or child adoption. F. The Briefing Paper used to identify SIs made under the authority of an Act other than the European Communities Act 1972 to implement EU law (stage 2) collated SIs at 9 December 2016. G. The scope of the sections on the Family Procedure Rules 2010 and the Civil Procedure Rules 1998 is limited to the rules and does not include EU law relevant sections of the Practice Directions H. The Human Fertilisation and Embryology Act 1990 implements several Directives. However, only express references to EU law are highlighted in this Act on the assumption that dealing with Directives already implemented into domestic law is not a political priority. In the event that there is a review of this areas of law, the Directives and the relevant Acts should be considered as a whole: namely: Acts: Congenital Disabilities (Civil Liability) Act 1976; HFEA 1990, Human Fertilisation and Embryology (Disclosure of Information) Act 1992; Criminal Justice and Public Order Act 1994; Human Fertilisation and Embryology (Deceased Fathers) Act 2003, Human Tissue Act 2004; HFEA 2008; Health Act 2009; Marriage (Same Sex Couples) Act 2013 Directives: Council Directive 2004/23/EC; Council Directive 2006/17/EC; Council Directive 2006/86/EC; Commission Directive 2012/39; Commission Directive 2015/566; SIs: Human Fertilisation and Embryology Act 1990 (Commencement No 1) Order 1990 1990/2165; Human Fertilisation and Embryology Act 1990 (Commencement No 2 and Transitional Provision) Order 1991 1991/480; Human Fertilisation and Embryology Act 1990 (Commencement No 3 and Transitional Provisions) Order 1991 1991/1400; Human Fertilisation and Embryology Act 1990 (Commencement No 4—Amendment of Transitional Provisions) Order 1991 1991/1781; Parental Orders (Human Fertilisation and Embryology) Regulations 1994 1994/2767; Human Fertilisation and Embryology (Research Purposes) Regulations 2001, 2001/188; Human Fertilisation and Embryology (Deceased Fathers) Act 2003 (Commencement) Order 2003 2003/3095; Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004 2004/1511; Adoption and Children Act 2002 (Commencement No 9) Order 2005 2005/2213; Human Fertilisation and Embryology (Quality and Safety) Regulations 2007 2007/1522; Human Fertilisation and Embryology Act 2008 (Commencement No 1 and Transitional Provisions) Order 2009 2009/479; Human Fertilisation and Embryology (Procedure for Revocation, Variation or Refusal of Licences) Regulations 2009, 2009/1397; Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 2009/1582; Human Fertilisation and Embryology (Appeals) Regulations 2009 2009/1891; Human Fertilisation and Embryology (Consequential Amendments and Transitional and Saving Provisions) Order 2009 2009/1892; Human Fertilisation and Embryology (Special Exemption) Regulations 2009 2009/1918; Human Fertilisation and Embryology (Procedure for Revocation, Variation or Refusal of Licences) (Amendment) Regulations 2009 2009/2088; Human Fertilisation and Embryology Act 2008 (Commencement No 2 and Transitional Provision) and (Commencement No 1 Amendment) Order 2009 2009/2232; Human Fertilisation and Embryology (Supplementary Provision) Order 2009, 2009/2478; Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) (Amendment) Regulations 2009 2009/2581; Human Fertilisation and Embryology (Procedure on Applications and Execution of Warrants) Regulations 2010,2010/726; Human Fertilisation and Embryology (Parental Orders) Regulations 2010 2010/985; Human Fertilisation and Embryology (Parental Orders) (Consequential, Transitional and Saving Provisions) Order 2010 2010/986; Human Fertilisation and Embryology Act 2008 (Commencement No 3) Order 2010 2010/987; Human Fertilisation and Embryology (Disclosure of Information for Research Purposes) Regulations 2010 2010/995; Marriage (Same Sex Couples) Act 2013 (Commencement No 2 and Transitional Provision) Order 2014, 2014/93; Human Fertilisation and Embryology (Quality and Safety) Regulations 2014 2014/2884; Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 2015/572; Human Fertilisation and Embryology (Amendment) Regulations 2018 2018/334. Note: the Human Fertilisation and Embryology Act 2008 has been searched against both sets of search terms at C above and no express references to EU law were found. Brexit Working Party Chair, Pauline Fowler (Hughes Fowler Carruthers) Amy Scollan (Hunters) Hannah McCrindle (Expatriate Law) James Riby (Charles Russell Speechlys) Laura Moys (1 King's Bench Walk) Lauren Deane (Hughes Fowler Carruthers) Max Turnell (1 King's Bench Walk) Olivia Piercy (Bindmans) Stacey Nevin (Kingsley Napley) Stephen Jarmain (1 King's Bench Walk) 1 Table of Domestic Family Legislation Implementing and Affected by EU Instruments Domestic legislation Provision Amending Statutory Instrument Amended Provision Text Comment/Analysis A Primary legislation 1 Administration of Justice Act 1970 s. 28 Civil Jurisdiction and Judgments (Maintenance) In section 28 (other provisions for the interpretation of Part 2), in subsection (1), in the definition of Maintenance / Enforcement Regulations 2011/1484, Sch 7, para 3 “maintenance order”— (a) after “any order” insert “, decision, settlement or instrument”; (b) for “such an order” substitute “one”; (c) after “discharged” insert “or has otherwise ceased to operate”. s. 28(1) International Recovery of Maintenance (Hague In section 28(1), in the definition of “maintenance order”, after “settlement” insert “, arrangement”. Maintenance / Enforcement Convention 2007 etc.) Regulations 2012/2814, Sch 4, paras 2(1) and 2(2) Sch 8, para 13A Civil Jurisdiction and Judgments Order 2001/3929, Sch In Schedule 8 to the Administration of Justice Act 1970 (which lists maintenance orders for the Maintenance / Enforcement 3, para 8 purposes of Part II of that Act), after paragraph 13 insert— “13A. A maintenance judgment within the meaning of Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which is registered in a magistrates'
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