Uncertain futures: How Brexit could leave our children less protected

Uncertainty reigns supreme in the Brexit negotiations. But what is now clear is that Brexit will weaken our rights, protections and shared standards. And while many hundreds of articles have been written on customs unions and chlorinated chicken, scant attention has been paid to what Brexit specifically means for our youngest generation.

How might children be affected by Brexit? In several ways.

As a member of the EU, the UK is party to Europol, Eurojust, and the European Arrest Warrant, all of which help fight crimes – including those against children – across Europe. Europol has a cybercrime centre that tackles child pornography as a priority. It also shares data on sex offenders, traffickers and abductions. The European Arrest Warrant has regularly been used to bring such people back to face justice. Eurojust’s joint investigation teams tackle cross-border cases and facilitate prosecutions needing cross-border evidence. Brexit won’t stop criminals crossing borders, but the Tory right’s opposition to European Court of Justice oversight will limit our ability to participate in such schemes. Outside of the EU, it will become harder for the UK to protect children across borders.

Freedom of movement over the past 40 years has also led to a flourishing of families with parents from two different European countries. Inevitably, some of these relationships break down, and the EU has developed legislation to cope with the difficult realities of cross-border family law. Leaving the EU legal framework will reduce children’s rights and increase uncertainty concerning family law, from maintenance payments to custody to inheritance.

Specifically, the so-called Brussels II bis Regulation (applied in the EU since 2005) deals with conflict in cases of divorce, childcare and abductions. It is faster and more effective than the previous cumbersome international agreements. For instance, in recent years the majority of child abductions have been carried out by the parent with care, often linked to escaping domestic abuse. By prioritising the interests of the individual child, European legislation is able to deal with cases like domestic abuse with greater sensitivity than the Hague Convention on Child Abduction (1980), which the UK will likely have to fall back on after Brexit. Maria Doyle, from Together, an alliance of children’s charities in Scotland, describes the participatory principle of Brussels II bis as “essential”.

Brussels II bis Regulation equally allows better communication between European High Courts, who all operate under the same set of rules on family law. Maintenance regulations similarly help to govern child maintenance claims, for a child with, say, one parent in Germany and another living in the UK. This uniformity provides a high level of assurance to parents that the case will be carried out with the best interests of the child in mind.

The importance of speed in such cases should not be underestimated. Studies have shown how damaging uncertainty can be in a child’s development. Relying on traditional international agreements (here and here) would not necessarily be sufficient to avoid the long-term emotional impact that is often caused by legal delays.

Brexit also causes problems for EU children resident in the UK, and British children in other EU countries. EU children here will have to contend with the government’s Settled Status Scheme. The Home Office plans to register three million EU citizens are convoluted and expensive. Sadly it’s the most vulnerable EU citizens who are most likely to fall through the cracks. In particular, children in care and youth detention centres who are EU but not British citizens could struggle to gather the necessary documentation or may not be aware of the scheme. I spoke to organisations in Yorkshire that work with marginalised EU migrants who had not even heard of Settled Status before this summer. With no Settled Status, the future of these children in the UK is thrown into legal limbo.

The European Parliament has taken a particular interest in ensuring that all EU migrants in the UK are able to continue living in their homes with dignity. I would not be surprised if the Parliament objects to ratifying any Brexit deal if it feels that there are still inadequacies in the UK government’s proposed Settled Status scheme.

Beyond these very real administrative concerns, Brexit poses more existential questions for EU families. There were around 258,000 European national children based in the UK in 2016 who had lived here all their lives. Dr Nando Sigona, who coordinates the Eurochildren project at the University of Birmingham, points out that Brexit forces on these children difficult and distressing choices about their own identities that were unnecessary until now. EU parents are reportedly worried about teenagers distancing themselves from their families in the toxic atmosphere after the referendum result. Grandparents may no longer be able to come to the UK to help care for their children while their parents are at work, or ill.

Moreover, human rights organisations across the country agree that Brexit will weaken the domestic rights of British children. I spoke recently with Louise King from the Children Rights Alliance, who commented that the Henry VIII powers in the EU (Withdrawal) Act leaves “nothing with teeth to hold government to account” on children’s rights. The Act will also drop the EU Charter of Fundamental Rights after Brexit. Article 24 of the Charter explicitly addresses the rights of children, including participation rights, which ensure that the views of the child are considered when deciding on matters that concern them, such as in family disputes and social care. These rights simply do not have an equivalent in English law.

Rights, protections and funding for children are all under threat because of Brexit. And unfortunately, the uncertainty over children’s rights will only be compounded if laws in the EU continue to be adapted and improved and the UK fails to keep up. Uncertainty makes legal proceedings more complex, renders children’s rights less watertight, and has a long-term impact on a child’s wellbeing. It is up to politicians to ensure their voices are heard at the negotiating table.

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