Brexit, borders and best interests in Europe: implications for family law cases involving surrogacy, family life, and the right to authentic identity

The implications of Brexit for family law practitioners within the United Kingdom (UK) continue to unfold. In relation to the wider context of its withdrawal from the EU, the UK is now a ‘third State’ having left behind ‘more than 750 international agreements after Brexit.’ Various predictions on the wider, adverse impacts of Brexit-led law and policy reforms have so far largely proven correct, especially in terms of an ever-worsening ‘... loss of faith in the EU by the UK…[making] a considerable dent in its role as a major global player…’ This paper focuses specifically however upon the post-Brexit demise of certain key EU family law ‘…mechanisms/remedies available to ‘left behind’ parents…,’ looking particularly at recent case law on child abductions and the child’s right to have their voice heard in such proceedings e.g. when objecting to the making of a return order. It argues that the loss of certain protections enshrined in Council Regulation (EC) 2201/2003 (Brussels II Revised, hereinafter ‘Brussels II-bis,’ set to be replaced by the Recast Regulation from August 2022, within EU member states) may yet be seen as quite significant, e.g. in terms of how the voice of the (objecting) child relates to welfare concerns and to the promotion of their best interests. EU Member States should aim to guarantee children a ‘genuine and effective’ opportunity to express their views. The UK must now however look to the provisions and processes of the Hague Conventions (‘Hague’) when dealing with cases involving wrongful removal or retention of children and applications for - or appeals against - court-ordered returns to their former jurisdiction of habitual residence. Definitions of the child’s best interests can vary considerably under Hague abduction/return proceedings, given how the system is largely ‘predicated on the presumption in favour of expeditious return.’ Arguably too, the emphasis on 'birth-country' in some domestic cases is relevant to those origin-deprived adoptees seeking to uncover 'original' information relevant to their identity.