On 11th January 2015, A new piece of European legislation came into force. The new law provides for the countries of the EU (except for Denmark) to recognise and enforce orders from other member states that were made specifically to protect individuals, particularly those who are the victims of domestic violence.
As a member of the EU, when the European Parliament passes a new law or regulation, our country is bound to adopt it into our own law. As such, the government has amended Rule 74.34 of our Civil Procedure Rules and Part 38 of the Family Procedure Rules.
So, how could this European wide amendment to legislation affect our practice of Family Law? The definition of ‘protection measures’ coming from the EU is very wide:
“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.”
The type of protection measures that the new law applies to is defined as follows:
“(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.”
There are 3 main areas where this could impact upon the work that family solicitors do and these are in relation to certain orders made under the Children Act 1989, The Family Law Act 1996 and the Protection from Harassment Act 1997. These English and Welsh laws provide for injunctions to be granted by the court, such as Non-Molestation Orders and Occupation Orders. The Protection from Harassment Act defines the act of harassment and criminalises it. This gives the criminal courts the power to make restraining orders.
The impact of this new legislation s therefore far reaching as it can apply to court orders made by the Family courts, Civil Courts and Criminal Courts. As family solicitors, we are used to the work we do crossing over into all three court systems. Since the new legislation, any orders that our courts make in relation to the personal protection of an individual must be upheld and enforced in other Member States. The onus falls on our court system as well to enforce similar orders of other European countries.
From a practical point of view, there will be language barriers to overcome for lawyers and the courts. Moreover, the legislation emphasizes that the new law does not give the member state being asked to uphold or enforce a foreign order any jurisdiction to review it’s substance. Only the factual elements of an order can be amended so for example, if the addresses of the people involved were incorrect or needed updating. Our courts could only refuse to enforce an order from another EU state if it were:
(a) Manifestly contrary to public policy or
(b) Irreconcilable with a judgment given or recognised in the member state addressed.
Therefore, even if the order made would never have met our own statutory criteria and would not have been granted in England or Wales, there is nothing that our courts can do to challenge the effect of the order itself. Furthermore, if there is a breach of the order and that breach takes place in another member state, it is that country who has the jurisdiction to deal with the enforcement or apply sanctions, not the country that originally made the order. Sarah Lucy Cooper, Barrister of Thomas More Chambers envisages that this could produce odd results. For example, an overseas jurisdiction may be loathed to penalise an infraction – particularly in relation to conduct which is not per se a criminal offence such as the perpetrator attending the new home address, which would have been envisaged by the original order.
As with all new legislation, we will have to wait and see how this will develop and to what extent this will impact upon our courts. It is certainly something that family solicitors should be aware of and able to provide relevant advice to their clients. To the victims of abuse or harassment where the perpetrators are of another European nationality, this legal development should offer reassurance that the local police and local court systems will have the jurisdiction to act.