EU regulation on mutual recognition of protection measures

The EU regulation on mutual recognition of protection measures in civil matters is a simple construct and idea. It may provide a useful tool for parties engaged in cross border disputes. It may also be useful where parties wish to exercise their right to free movement in the EU, if, for example, they have business interests or property abroad.

The regulation is concerned with protection measures in civil matters only. It is designed to complement Directive 2011/99/EU on the European protection order, which provides for protection measures in criminal matters.

Protection measures on or after 11 January 2015

Applicable to protection measures made on or after 11 January 2015, the regulation introduces a pro forma certificate. The Council of the European Union describes this as a kind of ’passport’ containing all essential information to facilitate recognition of the protection measure, when the protected person moves or travels to another member state.

The regulation covers measures including non-molestation, occupation, and forced marriage orders as one would expect. It does not overlap with Brussels II Revised, which is concerned with measures taken in matrimonial and parental responsibility matters, such as prohibited steps orders pursuant to the Children Act 1989.

Undertakings accepted by a court pursuant to the Family Law Act 1996 fall within the regulation, according to Practice Direction 38A 1.5 of the Family Procedure Rules. However, since civil law systems do not have a measure akin to an undertaking, caution should be exercised in accepting an undertaking if the protected person wishes to rely upon the regulation, as it is not clear how other member states would in reality enforce something they are not familiar with. Furthermore, the certificate adds to the potential confusion and quagmire for member states recognising an instrument they are unfamiliar with. It refers to the ’Date of ordering of the protection measure’ and the ’Authority which ordered the protection measure’, thereby failing to reflect that a measure may be voluntary (as is the case with undertakings) rather than ordered.

The regulation works by means of a protected person obtaining a certificate from an issuing authority in their home country, the ‘member state of origin’ of the protection measures.

The protected person then presents the certificate and the protection measure to a competent authority in the ‘member state addressed’, where it is automatically recognised without that member state making a declaration of enforceability.

Here in England and Wales, the issuing and competent authorities are the Family Court, County Court and Family Division of the High Court. The certificate and the protection measure should be sought at the same time, but Family Procedure Rule 38.2 (1)(b) allows for the certificate to be issued after the application has been made if the protection measure is still in force or has not yet been made.

Designed for interim periods, the recognition of a protection measure is limited to 12 months from date of issue of the certificate, irrespective of whether the protection measure is for a longer duration. It therefore may still be appropriate in some cases to seek an overseas order.

The certificate is a conveniently comprehensive document. For example, it contains practical terms that can allow for contact in certain circumstances that would assist the protected person, including provisions to allow access to children or for maintenance to the protected person or their child(ren).

Exceptions that could undermine the regulation

As is the norm with EU measures, the regulation provides that there can be no review of the member state of origin’s measure. The regulation states that no legislation or other formalities are required. However, there are with two exceptions which could undermine the regulation and its aims.

First, article 13 states that recognition and enforcement shall only be refused by a member state addressed if it is either manifestly contrary to public policy, or irreconcilable with a judgment given in the member state addressed.

Second, article 11 allows ’factual elements of the protection measure’ to be adjusted in order to give effect to the protection measure. Whilst the provision could be exploited effectively to allow the protection measure to be reviewed, it could also allow critical adjustments to ensure the measure is in practice effective; for example by allowing a new address to be inserted.

Arguably a weakness of the regulation is that it does not regulate the procedures for implementation or enforcement of protection measures. Nor does it provide for sanctions which may be imposed in the event of a breach of a protection measure. These are left to national law in which the measure is being recognised. This is beneficial on the one hand for preserving member states’ national autonomy. However, without such provisions the regulation potentially lacks bite and may not provide protected persons the full protection they require. It has been pointed out in commentary that the normal sanction in England and Wales for a serious breach of a protective measure is committal to prison, but for such a sanction the order must have sufficiently clear terms. Whether an order made in court of another member state would be in sufficiently clear terms to impose committal sanctions here therefore remains to be seen.