New measures aimed at harmonising family law in Europe could have unforeseen consequences for child abduction, custody and access and same-sex marriage, according to a family law expert.
Geoffrey Shannon, who represents Ireland on the EU committee dealing with family law, warned that the new EU regulation, which came into force yesterday, could encourage people to abduct children outside the EU. It also creates a demand for a new EU-wide definition of marriage, he said.
"The concept of marriage must have an autonomous meaning under the regulation," he said. "People in same-sex marriages could be discriminated against."
The new regulation also means that custody and access orders issued in one jurisdiction are automatically enforceable in another.
According to a statement from the European Commission, there are more cases where family members in the EU are not of the same nationality or do not live in the same member states. "This social reality creates a need to lay down uniform rules to determine the competent court and to facilitate mutual recognition of judgments," it said.
The new regulation unifies the EU's legal framework in the area of family law in one text. Issues concerning children are, generally, to be dealt with in the state of the child's habitual residence.
These include both custody and access issues, and instances of child abduction. According to Mr Shannon, that potentially conflicts with the Hague Convention on child abduction, which allows the courts in the state where the child ends up to deal with the case. It also allows "grave risk" to the safety of the child to be taken into account.
Now the courts in the state where the child habitually resided will deal with the case, and have the courts in another EU state enforce their orders. Mr Shannon fears this may encourage abducting parents to take children outside the EU, especially if the parent and child were in an oppressive situation.
Turning to the issues of custody and access, he said that an order issued in, say, a Belfast court would have to be implemented in the Republic, without the courts here being able to look at the circumstances behind the order.
There is also no provision for getting a custody or access order varied, he said. "Access issues tend to change. Children could be put at risk in order to further this whole movement towards harmonisation," he said. "This is more than mutual recognition, it is an attempt to harmonise family law across Europe."
It would force people to litigate rather than seek mediation, as the advantage would rest with the party that got into court first, in whatever jurisdiction.