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Stop in the Name of Love! The New EU Regulation 606/2013 on Protection Measures

Sarah Lucy Cooper, barrister of Thomas More Chambers, explains the details and effect of this recently implemented EU personal protection law.

Sarah Lucy Cooper, barrister, Thomas More Chambers

Sarah Lucy Cooper, barrister, Thomas More Chambers

On 11th January 2015 a new EU Regulation came into force affecting family law: Regulation (EU) No. 606/2013 of the European Parliament and of the Council on mutual recognition of protection measures in civil matters. The intention of this regulation is to ensure the "rapid and simple recognition and where applicable enforcement in another Member State" of "protection measures" concerning individuals. All of the EU is a party to this Regulation save for Denmark and the Regulation will apply to protection measures ordered on or after 11th January 2015, regardless of when the proceedings were instituted.

The country issuing the original order is the "Member State of Origin" whilst the country in which recognition and/or enforcement is sought is the "Member State Addressed". This will be done on the basis of a Certificate issued under Article 5 of the Regulation.

New rules for the FPR 2010 are already in force and were contained in the Family Procedure (Amendment No. 4) Rules 2014 [SI 2014 3296].

These new Part 38 rules are comprehensive and should be read in full.

What are Protection Measures?
The Regulation makes it clear that "protection measures" are to be widely defined. Preamble (3) is clear that they must concern individuals whilst preamble 6 states:

"this Regulation should apply to protection measures ordered with a view to protecting a person where there exist serious grounds for considering that person's life, physical or psychological integrity, personal liberty, security or sexual integrity is at risk, for example so as to prevent any form of gender-based violence or violence in close relationships such as physical violence, harassment, sexual aggression, stalking, intimidation or other forms of indirect coercion. It is important to underline that this Regulation applies to all victims, regardless of whether they are victims of gender based violence."

Article 3 defines protection measures which cover:

"(a) a prohibition or regulation on entering the place where the protected person resides, works or regularly visits or stays

(b) a prohibition or regulation of contact in any form with the protected person including by telephone, electronic or ordinary mail, fax or any other means

(c) a prohibition or regulation on approaching the protected person closer than a prescribed distance."

Importantly this regulation only covers individuals and so would not cover any harassment of any type of corporate entity.

Clearly in relation to family practitioners it will be the Family Law Act 1996, the Children Act 1989 and the Protection from Harassment Act 1997 which will deal with the vast majority of protection measures. Care, however, must be had in relation to prohibited steps orders under the Children Act because, pursuant to Article 2(3), this Regulation does not apply to protection measures made under Brussels II Revised which of course has its own registration and enforcement procedures. Protection orders made under the Children Act 1989 are therefore most unlikely to be affected by this new Regulation but will need to be enforced separately under Brussels II Revised.

Preamble (9) makes it clear that the Regulation applies only to protection measures ordered in civil matters and that protection measures ordered in criminal matters are covered by Directive 2011/99/EU. Preamble (10) clarifies that the notion of civil matters must be interpreted autonomously in accordance with ECJ law and that:

"the civil, administrative or criminal nature of the authority ordering a protection measure should not ne determinative for the purpose of assessing the civil character of a protection measure."

However, family practitioners cannot ignore practice in the criminal courts as they can also make injunctive orders. These can be made under the Protection from Harassment Act 1997 sections 5 and 5A and also the Sexual Offences Act 2003 section 104. Furthermore, both of these Acts specifically provide in terms that the criminal courts can make these injunctive orders even after an acquittal.

This division between "civil" and "criminal" matters under EU law is also a matter of interesting debate for which it seems that there is no clear answer….

Whilst of course bail and probably orders made after conviction would be considered as criminal matters, it is likely though that orders made in criminal courts after an acquittal could well be considered as civil matters and therefore subject to this Regulation.

On the same day that this Regulation came into force, national laws are bringing into force Directive 2011/99/EU which provides for a European Protection Order in the context of criminal proceedings. Presumably this will indeed cover PHA and SOA orders made on conviction as well the issue of bail itself.

The Practicalities of Obtaining a Certificate
The Article 5 Certificate [document 32014R0939] can be found on the web here.

This Certificate is very detailed, well thought out and, all in all, rather an impressive creature. It provides in terms for consideration of circumstances in which certain types of contact might be allowed – for example for the sole purposes of arranging access to children or payment of maintenance etc.
Given the way that the certificate is constructed as a multilingual document, it is unlikely that a translation would be necessary, but if a translation is required then this is provided for at Article 16 and also FPR r38.5.

The certificate must be completed by the court – preferably at the time of the hearing itself. FPR 38.2 (1)(b) does allow 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. FPR 38.2(b) provides that no notice is needed to apply for an Article 5 certificate and pursuant to Article 5(2) there is no appeal against its issue.

Article 6 provides that in order for the certificate to be issued, the perpetrator must first have been served with the protection measure or if the order has been obtained in default of appearance or ex parte, then the perpetrator must have had the opportunity either to have arranged his defence or, in the case of an ex parte order, subsequently to challenge the order.

Restrictions on Registering Protection Measures
Article 4 (4) provides that irrespective of the length of the original order, the effect of a recognition pursuant to this Regulation is limited to a period of 12 months from the date of the certificate. The Regulation is therefore intended only to cover interim periods – in cases where a client is relocating overseas on a permanent basis it may still be appropriate to obtain an overseas order.

Service, Notification and Confidentiality
Article 8 provides rules for the notification to the person causing the risk that a certificate has been issued and what its effect is. Essentially, the primary obligation is on the member state which issues the original certificate. If the perpetrator lives in the member state of origin, service should be effected in accordance with the law of that member state. If the perpetrator lives elsewhere, a registered letter is acceptable. This is a useful provision as the general rule in relation to service overseas is that it must be effected according to the law of the state in which the party is to be served.

Article 8(3) deals with disclosure of the victim's "whereabouts or other contact details". These shall NOT be disclosed save where necessary "for compliance with, or the enforcement of, the protection measure".

Where the perpetrator's address is not known or they refuse to accept service, this is governed by the law of the member state of origin in relation to the issuing of the certificate itself – see Article 8 (2). This contrasts with the position as to the rules on service at Article 11(4) in relation to the subsequent variation of the protection measure.

FPR 38.7 makes it clear that service is to be effected by the court officer by serving in accordance with FPR 6 at Chapter 3. This perhaps is unfortunate as it might have been considered safer for the victim to have been responsible for service given the difficulties that are frequently encountered in practice.

Variation of the Protection Measure
In common with many EU instruments, the intention is that this Regulation provides for cross border processes to be speeded up by preventing orders made in one member state being challenged in another. Article 4(1) provides in terms that the Certificate must be recognised and enforced without any special procedures or any declaration of enforceability.

Article 12 emphasises this by stating in terms:

"Under no circumstances may a protective measure ordered in the member State of origin be reviewed as to its substance in the Member State addressed."

Furthermore, Article 15 states that no legalisation or other formalities are required.

The only exceptions to this are set out at Articles 11 and 13.

Article 11 provides that the "factual elements of the protection measure" can be adjusted in order to give effect to the protection measure. What this means in practice is that where a home or work address is specified in the original order and new overseas addresses need to be inserted into the order for it to have any real effect, this can easily be done.

Article 13 provides that recognition and enforcement shall only be refused by a member state addressed if it is either:

(a) Manifestly contrary to public policy or

(b) Irreconcilable with a judgment given or recognised in the member state addressed.

In such circumstances – which are to be assumed to be exceptional – recognition cannot be refused on the basis that the law of the member state addressed does not allow for such a protective measure based on the same facts.

New procedural rules on the treatment of incoming orders are also contained in FPR 38.

So What Happens if there is a Breach of the Injunction?
Preamble (18) and Article 4(5) make it very clear that in any case this Regulation only deals with the recognition of the obligation imposed by the protection measure and does not regulate the procedures for implementation. Enforcement of protection measures must still be left to the law of the jurisdiction in which the measure is recognised. Of course this may produce very odd results if, for example, an overseas jurisdiction is loathe to penalise such an infraction – particularly in relation to conduct which is not per se a criminal offence such as the perpetrator attending the new home address.

Will an Undertaking Suffice?
In England and Wales, a very common method of achieving the same protection in civil courts is by way of the provision of undertakings to the court. English and Welsh lawyers need to be very aware, however, that in most other jurisdictions, particularly the civil law systems in place on continental Europe, undertakings are an entirely unknown entity and further their systems allow for nothing similar – either orders are made by a court or they are not – promises are not given in any form to a court.

Therefore, great care needs to be taken with undertakings given as whilst the form of the Regulation is to provide a Certificate which must be enforced in other jurisdictions, the reality on the ground may be rather different as neither undertakings nor anything similar exist in most other EU jurisdictions. The author of this article would certainly strongly caution against accepting an undertaking in any case in which overseas registration is sought.

Interestingly the draft Article 5 Certificate itself refers at paragraph 1 to "Date of ordering of the protection measure" whilst paragraph 4 states "Authority which ordered the protection measure". As we know undertakings cannot be ordered but are voluntary, so why the Certificate has been drafted in this way remains a mystery!