I do. Thank you, convener.
This draft Scottish statutory instrument relates to family law and Brexit. European Union provision has not generally impacted on the substance of family law; instead, the EU has made provision on matters such as which courts would have jurisdiction in EU cross-border cases and the mutual recognition of judgments.
The SSI relates in particular to EU regulation EC 2201/2003, which is commonly known as Brussels 2a. Brussels 2a makes provision on issues such as jurisdiction of the courts in divorce cases and mutual recognition of family judgments in areas of parental responsibility, such as contact and residence cases.
The SSI makes provision for a no-deal Brexit. Obviously, a no-deal Brexit is not the Scottish Government’s preferred position. We regret the decision to leave the EU, and we would regret a no-deal Brexit, but we have to prepare for all potential outcomes, and we have had to consider the best approach in the area if the United Kingdom should leave the EU without a deal.
As I indicated in a letter that I sent to the convener last week following comments by Mary Fee at the Delegated Powers and Law Reform Committee, we think that the best general approach in the area is to fall back on international Hague conventions. Relying on the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children helps to provide the necessary reciprocity that, unfortunately, will be lacking in EU measures if the United Kingdom leaves without a deal. It is clear that there are some downsides, but they are inevitable if the UK is to leave the EU.
Some stakeholders have suggested that the enforcement of judgments under Hague may be slower and more expensive than under Brussels 2a, but it is very hard to quantify that at the moment.
Brussels 2a currently provides certainty that divorces are recognised across the EU, but that will be lost when we leave the EU. However, there is a Hague convention on divorce from 1970, which has been implemented in the UK by the Family Law Act 1986. In Scotland, we will continue to give wide recognition to overseas divorces, whether they are from the EU or elsewhere.
On the jurisdiction of the courts in divorce and similar cases, we propose to go back to jurisdiction as it was before EU provision was made. In relation to divorce, that means that the Scottish courts would have jurisdiction if at least one of the parties had been habitually resident in Scotland for a year or more or is domiciled here. Those rules are based on a Scottish Law Commission report from 1972. We recognise that 1972 is quite a long time ago and that the work is quite old. In due course, we will review jurisdictional rules for this area, but the exact timing will depend on what type of Brexit takes place.
It is generally accepted that Brussels 2a does not extend to same-sex relationships, given the varied views about their recognition across EU member states. As a result, we made domestic provision to mirror Brussels 2a when civil partnership and same-sex marriage were introduced. The SSI revokes that domestic provision and puts the jurisdiction of the Scottish courts for same-sex cases on the same footing as for mixed-sex cases. The one exception is that we have retained a jurisdiction of last resort for cases in which the couple have registered their relationship here and it appears to the court to be in the interests of justice to assume jurisdiction in the case.
We recognise the need to provide guidance to legal practitioners and the public, but providing guidance in this area will not be straightforward. We do not know what sort of Brexit we will get and we do not want to cause any unnecessary alarm. However, we will issue guidance to practitioners and the public to provide as much clarity and certainty as we can.
I am grateful for the opportunity to outline the impacts of the SSI, and I am happy to take any questions about it.