I have spoken here previously about the increasingly international nature of family law, with people and families regularly moving from one state to another. Obviously, this raises issues of the recognition and enforceability of family court orders made in a different state. Those issues are being addressed by various measures, the latest of which is an EU Regulation “on mutual recognition of protection measures in civil matters”, which came into effect on the 11th of January.
The purpose of the Regulation is to establish “rules for a simple and rapid mechanism for the recognition of protection measures ordered in a Member State in civil matters.”
The “protection measures” clearly include most domestic violence orders, although their definition is essentially limited to orders restraining one person from contacting or approaching another:
“ ‘Protection measure’ means any decision, whatever it may be called, ordered by the issuing authority [i.e. court] of the Member State of origin in accordance with its national law and imposing one or more of the following obligations on the person causing the risk with a view to protecting another person, when the latter person’s physical or psychological integrity may be at risk:
(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…”
It seems to me that a simple non-molestation order prohibiting one person from molesting another without any further restriction would not fall within this definition, although such an order is probably quite rare.
Once a person has a protection measure made by a court in one EU country, they may have the order recognised and enforced in any other EU country, save for Denmark, which has not adopted the Regulation.
The procedure for recognition and enforcement is quite straightforward. The person protected by the order may request a certificate from the court that made it, giving various details relating to the order, including details of the parties, “all information necessary for the enforcement” of the order and details of the duration of the order.
The certificate may only be issued if the protection measure has been brought to the notice of the person causing the risk, i.e. the person against whom the order was made. Further, initial domestic violence orders are quite often made without notice to the other party (known as an ‘ex parte’ orders), so as to provide protection to the victim before the perpetrator is notified of the proceedings. Note that where the order sought to be enforced is an ex parte order a certificate can only be issued if the other party had a right to challenge the order.
As to the ‘person causing the risk’, the court issuing the certificate must notify them of that fact, and explain that the issuing of the certificate results in the recognition and, where applicable, in the enforceability of the protection measure in all member states.
The person who wants the order recognised and enforced in another country should provide the appropriate court of that country with a copy of the order, the certificate from the original court and, if necessary, a translation of the certificate. The court of that country should then recognise the order “without any special procedure being required” and the order “shall be enforceable without a declaration of enforceability being required”, although the procedure for enforcement of the order is governed by the law of the state taking the enforcement action.
Hopefully, the Regulation will help to ensure that victims of domestic violence receive proper protection under the law across Europe.
Photo of the European Commission headquarters by TPCOM via Flickr under a Creative Commons licence