Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
David Hodson on International Family Law: New EU law on domestic violence
Sep 29, 2018, 21:55 PM
David Hodson explains that the EU has introduced a law, in force in January 2015, giving significant cross EU powers and orders for the victims of domestic violence and others needing protective measures. This is a culmination of excellent work in respect of domestic abuse over many years by the EU in the Daphne project.
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The EU has introduced a law, in force in January 2015, giving significant cross-EU powers and orders for the victims of domestic violence and others needing protective measures. This is a culmination of excellent work in respect of domestic abuse over many years by the EU in the Daphne project.
The European Civil Protection Regulation (606 of 2013) of 12 June 2013 applies from 11January 2015. Its long title is the EU Regulation on Mutual Recognition of Protection Measures in Civil Matters.
“Protection measures” is referred to in a number of EU family law and civil law Regulations including Brussels II and the Maintenance Regulation. It covers injunctions, interlocutory orders to preserve the status quo, interim measures and similar.
But in this context it is specifically defined in Article 3.1 as any decision including a court order made in a member state imposing obligations on a person causing a risk with a view to protecting another person when the latter’s physical or psychological integrity may be at risk. It goes on to say this could be a prohibition against entering anywhere that the protected person resides, works or regularly visits or stays or against any form of contact or approaching a person closer than proscribed distance.
It has a number of key features:
The Regulation provides for automatic recognition of each Member State’s ‘protection measures’ aimed at protecting victims of violence. This was to protect victims of violent behaviour when exercising their right to freedom of movement within the EU.
The Regulation applies to measures adopted in civil matters within the EU by a judicial (and other designated) national authority (but NOT police authorities) to protect a person where there are serious grounds for considering that his/her life, physical or psychological integrity, personal liberty, security or sexual integrity are at risk. The Regulation provides examples including the prevention of any form of violence in close relationships, such as physical violence, harassment, sexual aggression, stalking, intimidation or other forms of indirect coercion.
The Regulation is binding and directly applicable. It will apply to all protection measures ordered on or after 11 January 2015, irrespective of when proceedings have been instituted.
The Regulation provides for automatic recognition without any special procedure required. A protection measure ordered in one Member State will therefore be treated as if it had been ordered in the Member State where recognition is sought.
The Regulation introduces a uniform model of certificate in a multilingual standard form in order to facilitate the free movement of protection measures. The victim will need a suitable certificate to be able to invoke the protection measure in another Member State.
The Regulation is to be applied according to the rights of defence and fair trial as per Arts 47 & 48 CFREU. Where the protection measure was ordered in default of appearance or under a procedure that does not provide for prior notice, the issue of a certificate should only be possible if the person causing the risk has had the opportunity to arrange for his or her defence against the protection measure (although in order to account for the typical urgency of cases necessitating protection measures, it should not be required that the period for raising a defence has expired before a certificate may be issued). The certificate should be issued as soon as the protection measure is enforceable in the Member State of origin.
The Regulation provides for simple and quick methods to be used for bringing procedural steps to the notice of the person causing the risk (limited only to serving the purpose of the Regulation and not as a precedent for other instruments in civil and commercial matters and should not affect obligations concerning service abroad etc).
When giving notice of the certificate to the person causing risk, details of the protected person’s whereabouts and contact details should not be disclosed unless it is necessary for enforcement/compliance of the protection measure.
Protection measures covered by the Regulation are not limited to a specific address or circumscribed area; they will extend to places of work or educational establishments etc irrespective of whether the place is described in the protection measure. For this reason, the competent authority of the Member State can adjust the factual elements of the protection measure where necessary (however, the type and civil nature of the protection measure may not be affected by such adjustment).
The recognition corresponds with the duration of the protection measure (limited to 12 months from the issuing certificate – but with the ability to invoke protection measures of more than 12 months under any other legal act of the EU for providing recognition or apply for a national protection measure in the MS addressed if the duration is required for greater than 12 months). Suspension or withdrawal of the protection measure/certificate should, upon submission of the relevant certificate, suspend or withdraw the effects of recognition/enforcement.
The Regulation only deals with recognition of the obligation imposed by the protection measure; it is not intended to regulate the procedures for implementation or enforcement. The Regulation does not deal with the sanctions for violation of a protection measure foreseen by each Member State. Those matters are left to the law of that Member State.
The Regulation provides for a ground for refusal of recognition or enforcement in cases of irreconcilability of decisions. There are also powers in exceptional cases to refuse to recognise or enforce a protection measure where it is manifestly contrary to public policy (this exception is not applicable where such a refusal would contradict the rights set out in CFREU, particularly Art 21).
The Regulation provides for the provision of legal aid in other Member States to ensure access to the procedures covered within it.
Member States are to communicate by 11 July 2014 certain information to the Commission, including the authorities/courts that are competent to order protection measures, issue certificates, adjust protection measures, refuse recognition etc.
There are specific provisions for the interrelationship with Brussels II and the Maintenance Regulation
There may be a perception in England that cross-border domestic violence issues is not high on the EU agenda. Whether or not this is the case, it is certainly a crucial issue where national land boundaries on continental Europe are of no real consequence where the fear of violence for the victims of domestic abuse is very real. Yet crossing the land borders has meant less domestic violence protection for victims because of national laws.This is a classic area in which the EU has a crucial role to play in cross-border family law and they are to be congratulated for doing so
There is of course more detail in the recitals and the Articles. My iFLG colleague, Anna Simmonds, has prepared a note on which the above is based and will be preparing a fuller article to be published in due course.