PRACTICE DIRECTION 38A – RECOGNITION AND ENFORCEMENT OF PROTECTION MEASURES

PRACTICE DIRECTION 38A – RECOGNITION AND ENFORCEMENT OF PROTECTION MEASURES

This Practice Direction supplements Part 38

The Protection Measures Regulation

1.1  The Protection Measures Regulation is an EU law1 which helps a person who has a "protection measure" obtained in one Member State to have it recognised and enforced in any other EU Member State (except Denmark). The protection can continue in the other Member State for the length of time the "protection measure" has been ordered, except it cannot continue for longer than twelve months.
 
1.2  The Protection Measures Regulation applies across the United Kingdom. Part 38 and this Practice Direction apply in England and Wales only. If you need information about Scotland you should contact the Scottish Government2. If you need information about Northern Ireland you should contact the Northern Ireland Department for Justice3.
 
1.3  A "protection measure" is a decision that says the "person causing the risk" must comply with one or more of the three kinds of obligation set out below, to protect another person, the "protected person", from physical or psychological harm.

The obligations4 are:
- a ban or controls on entering the place where the protected person lives or works, or regularly visits or stays;
- a ban or controls on contact, in any form, with the protected person, including by telephone, post, e-mail, text or social media or any other means;
- a ban or controls on approaching the protected person closer than a stated distance.
 
1.4  A "protected person" is the individual who is protected by the obligation in the protection measure. A "person causing the risk" is the individual on whom the obligation has been imposed.
 
1.5  In England and Wales in family proceedings a protection measure as set out at paragraph 1.3 above may be included in an order made or undertaking accepted by the family court or the High Court. In this Practice Direction, references to orders made include undertakings accepted.
 
1.6  Rule 38.1 sets out which orders made in family proceedings in England and Wales could contain a protection measure. In the Protection Measures Regulation, in the Article 5 and Article 14 certificates and in this practice direction the meanings of words are as follows. The family court or the High Court is the "issuing authority" for the protection measure when it makes the order. The EU Member State where the protection measure is ordered is the "Member State of origin". The EU Member State where the protected person can take the protection measure to get it recognised and, where applicable, enforced, is the "Member State addressed".
 
1.7  If the protected person wants to take a protection measure ordered in England and Wales to another EU Member State (except Denmark) to get it recognised and enforced there, it is called an "outgoing protection measure". If the protected person is bringing a protection measure from another EU Member State (not from Denmark and not from Scotland or Northern Ireland) to England and Wales to get it recognised and enforced in England and Wales, it is called an "incoming protection measure". To get a protection measure recognised and enforced here or in another Member State (except Denmark) it must have a certificate under Article 5 of the Protection Measures Regulation to go with it.

Outgoing protection measures

Application for an Article 5 certificate

2.1  A protected person who wants an outgoing protection measure to be recognised and enforceable in another Member State (except Denmark) can apply under Chapter 2 of Part 38 for an Article 5 certificate. The protected person can apply either at the same time as they are applying for the order which contains a protection measure, or later before the order is made or, provided the order containing the protection measure is still in force, at any time after the order is made.
 
2.2  The protected person must apply to the court where the proceedings about the order are under way or took place. This will be either the family court or the High Court. At the same time as applying for the certificate, or later, the protected person can ask the court where the proceedings are under way or took place for a translation of the certificate into another EU official language.
 
2.3  When the protected person applies for an Article 5 certificate they must provide the court with the case number, their full name, date and place of birth and an address to be used for notification purposes. If you are the protected person, you can decide what address to provide and it does not have to be your own home address. THE ADDRESS YOU PROVIDE WILL NOT BE DISCLOSED TO THE PERSON CAUSING THE RISK UNLESS IT IS NECESSARY FOR THE PERSON CAUSING THE RISK TO KNOW IT, TO COMPLY WITH THE PROTECTION MEASURE (see paragraph 2.6 below). If the protected person knows the information, they should provide the court with the following details of the person causing the risk: full name, date and place of birth and an address to be used for notification purposes.
 
2.4  Before it can issue the Article 5 certificate, the court needs to know that the order containing the protection measure has been made known to ("served on") the person causing the risk. How the court knows depends on when the protected person applies for the certificate. The protected person who is applying for the Article 5 certificate before the order containing the protection measure has been made should use the appropriate form. If the protected person is acting in person and the order is a domestic violence or forced marriage protection order, they can ask the court under rule 10.6(2) or rule 11.7(4), whichever applies, to serve any order made on the person causing the risk. When the court makes and then serves the order and at the same time issues the certificate, the court knows that the person causing the risk has been told about the order.
 
2.5  If the protected person is applying for a certificate after the order containing the protection measure has been made, the protected person should apply using the appropriate form and provide the certified copy of the order. If the protected person or their legal representative was required to provide a copy of the order made to the person causing the risk, then the protected person must provide a certificate of service with the application for the Article 5 certificate. If the protected person is acting in person and the order is a domestic violence or forced marriage protection order, they can ask the court under rule 10.6(2) or rule 11.7(4), whichever applies, to serve the order on the person causing the risk. If the court has served the order, the protected person does not have to provide a certificate of service.

Notification of the Article 5 certificate

2.6  When the Article 5 certificate has been issued to the protected person, the court officer will notify the person causing the risk of the certificate in accordance with rule 38.7 (Article 8 notice) and provide them with a copy of the Article 5 certificate. The court officer will not tell the person causing the risk the address or contact details of the protected person unless the person causing the risk needs to have this information to comply with the protection measure or the information must be disclosed to get the protection measure enforced. For example, if the person causing the risk must stay away from a specific address, they need to know the address.
 
2.7  The Article 8 notice will also explain to the person causing the risk that the issue of the Article 5 certificate means the protection measure can now be recognised and is enforceable in other Member States of the European Union (except Denmark). It will explain that if the person causing the risk breaches the protection measure they could be punished under the law of the Member State where enforcement is requested.

"Rectification" of the Article 5 certificate

2.8  The protected person or the person causing the risk can apply for "rectification" of the Article 5 certificate. "Rectification" means the correction of a clerical error in which the certificate does not have the same information as the protection measure. The protected person or person causing the risk can apply for rectification under rule 38.8 using the appropriate form to the court which issued the certificate. In addition, if the court notices such a clerical error in an Article 5 certificate, the court will provide to the protected person and to the person causing the risk a corrected certificate on its own initiative.

Withdrawal of the Article 5 certificate

2.9  The protected person or the person causing the risk can apply under rule 38.9 using the appropriate form to the court which issued the Article 5 certificate for it to be withdrawn if it has clearly been wrongly granted under the Protection Measures Regulation. For example, an Article 5 certificate is wrongly granted if the person causing the risk did not know about the protection measure as required by Article 6. The court can also withdraw the Article 5 certificate on its own initiative (without an application) if it has clearly been wrongly granted. If the Article 5 certificate is withdrawn the protection measure cannot be recognised or enforced in any other Member State, including the Member State addressed. The court officer will notify both the protected person and the person causing the risk that the Article 5 certificate has been withdrawn.
 
2.10  When under Article 10 of the Protection Measures Regulation the protected person asks the court (as the issuing authority) for assistance to obtain information about the authorities in the Member State addressed which can adjust or enforce the protection measure, the court officer will signpost the protected person to the information on the EU website of the European Judicial Network in civil and commercial matters provided by EU Member States (except Denmark).

Changes to protection measure or withdrawal of Article 5 certificate - Article 14 certificate

2.11  If the family court or High Court discharges or stays a protection measure, or makes an order such as a variation that effectively suspends or limits its enforceability, the protected person or person causing the risk can apply for a certificate to be issued under Article 14(1) of the Protection Measures Regulation.5 Such a certificate can also be applied for if the Article 5 certificate is withdrawn (see paragraph 2.9 above). The application must be made in accordance with rules 38.10 and 38.11. At the same time as applying for the Article 14 certificate, or later, the protected person or the person causing the risk can ask the court where the proceedings are under way or took place for a translation of the Article 14 certificate into another EU official language.
 
2.12  When applying for an Article 14 certificate, the protected person or the person causing the risk must use the appropriate form and should provide the following documents if available: a certified copy of the court order which included the protection measure, a copy of the Article 5 certificate, a copy of the court order which varied, stayed, suspended or discharged all or part of the order including the protection measure, or the notification of the withdrawal of the Article 5 certificate by the court. The application can also be made if the protected person or the person causing the risk does not have all the documents listed. The applicant should provide the case number so that the court can locate the orders.
 
2.13  When the Article 14 certificate has been issued to the protected person or the person causing the risk the court will notify the other party. The applicant who has received an Article 14 certificate should send it to the court or other authority in the Member State addressed where the outgoing protection measure has been invoked or enforced so as to stop recognition and enforcement of the protection measure6.

Incoming protection measures

3.1  An incoming protection measure for which an Article 5 certificate has been issued in another Member State, is automatically recognised by the court in England and Wales. This section sets out actions the protected person can take in relation to an incoming protection measure, and the points at which the incoming protection measure and Article 5 certificate must be provided to the court. The applications set out below can be made to the family court, the county court and sometimes to the Family Division of the High Court (see rule 5.4 of the Family Procedure Rules 2010). This practice direction and the Family Procedure Rules apply to the family court and Family Division of the High Court only. Applications to the county court are covered by the Civil Procedure Rules7.
 
3.2  The protected person and the person causing the risk can make applications in relation to incoming protection measures using the procedure in Part 18 (or Part 19 if applicable) of the Family Procedure Rules. There is more information in Practice Directions 18A and 19A. These Practice Directions set out the documents the applicant must provide with the application, in addition to any requirements set out in this Practice Direction. When making an application the protected person or the person causing the risk must also provide a copy of the order containing the incoming protection measure and the Article 5 certificate issued in the Member State of origin. (Explanations of the terms used in the Protection Measures Regulation and the certificates are set out in section 1 above.)

Adjustment of “factual elements” in the protection measure

3.3  The protected person can apply to the court for the adjustment of "factual elements" in the incoming protection measure to make it effective in England and Wales. "Factual elements" can, for example, include the address or location the person causing the risk must stay away from, such as the location where the protected person lived or worked in the Member State of origin, or the minimum distance the person causing the risk must keep away from the protected person8. To make the protection measure work in England and Wales the protected person can apply for the protection measure to be adjusted to show an address in England or Wales. ANY ADDRESS OR LOCATION IN THE ADJUSTED PROTECTION MEASURE WILL BE DISCLOSED TO THE PERSON CAUSING THE RISK, BECAUSE THE ADJUSTMENT MUST BE NOTIFIED TO THE PERSON CAUSING THE RISK.
 
3.4  The protected person can apply to the court under rule 38.12 using the appropriate form for an adjustment to the factual elements to be made. If you are the protected person, you will need to provide an address for notification. You can decide what address to provide and it does not have to be your own home address. IF YOU ARE THE PROTECTED PERSON, AND THE ADDRESS YOU PROVIDE IS ALSO IN THE ADJUSTED PROTECTION MEASURE, THAT ADDRESS WILL BE DISCLOSED TO THE PERSON CAUSING THE RISK, BECAUSE THE PERSON CAUSING THE RISK MUST BE NOTIFIED OF THE ADJUSTMENT TO BE ABLE TO COMPLY WITH IT. When the court adjusts the facts in the protection measure the court officer must notify the person causing the risk of the adjustment in accordance with rule 38.13 (Article 11 notice). A protected person may choose not to apply for an adjustment of a protection measure that contains a specific address or location, and may choose to apply only for adjustments of the factual elements of a protection measure that do not contain such information.

Enforcement of the protection measure

3.5  If the protected person has an incoming protection measure accompanied by an Article 5 certificate from the Member State of origin and they believe the person causing the risk has disobeyed the protection measure, the protected person can apply to the court under rule 10.11 for the issue of a civil warrant for the arrest of the person causing the risk9. IF YOU ARE THE PROTECTED PERSON AND YOU BELIEVE THE PERSON CAUSING THE RISK HAS COMMITTED A CRIMINAL OFFENCE UNDER THE LAW OF ENGLAND AND WALES YOU SHOULD CONTACT THE POLICE. If this has happened, the person causing the risk may be subject to criminal punishment under the law of England and Wales.
 
3.6  Incoming protection measures can be enforced by the family court and the High Court in England and Wales as if they had been ordered by those courts. IF YOU ARE THE PERSON CAUSING THE RISK AND YOU DISOBEY THE PROTECTION MEASURE, YOU MAY BE HELD TO BE IN CONTEMPT OF COURT IN ENGLAND AND WALES AND YOU MAY BE IMPRISONED OR FINED. Part 10 and Part 37 of the FPR provide more information.

Application for refusal to recognise or enforce the protection measure

3.7  The person causing the risk can apply under rule 38.14 using the appropriate form for the court to refuse to recognise an incoming protection measure or to refuse to enforce it against them. Under the Protection Measures Regulation, the court will only refuse to recognise or enforce the protection measure when to do so would be "manifestly contrary to public policy" or if recognition of the incoming protection measure is "irreconcilable" with a judgment that has been given or recognised in the United Kingdom.

Suspension or withdrawal of recognition or enforcement

3.8  When a protection measure from another Member State has been suspended, limited or withdrawn in the Member State of origin or an Article 5 certificate has been withdrawn there, and an Article 14 certificate has been issued to confirm this, the protected person or the person causing the risk can apply under rule 38.15 using the appropriate form to the court in England and Wales which dealt or is dealing with the incoming protection measure to ask the court to stay, suspend or withdraw the effects of recognition or enforcement. The applicant must provide a copy of the Article 14 certificate. When the court has made orders or given directions to give effect to the Article 14 certificate the court officer will inform the other party.

Appeals

4.1  All decisions made by the court in England and Wales under the Protection Measures Regulation are subject to ordinary appeal procedures. In most cases permission to appeal will be required, but there is no need to get permission to appeal a decision made by lay justices. (The issue of an Article 5 certificate is separate and cannot be appealed.) Either the protected person or the person causing the risk can seek permission to appeal using the Part 30 procedure.

Footnotes

  1. EU Regulation No 606/2013 OJ L 181/4 of 29 June 2013
  2. Simon Stockwell, Family and Property Law, Scottish Government, St Andrew's House, Regent Road, Edinburgh, EH1 3DG.  simon.stockwell@scotland.gsi.gov.uk
    0131 244 3322.
  3. Naomi Callaghan, Civil Justice Policy Division, Department of Justice, Massey House, Stormont Estate, Belfast BT4 3SX. Naomi.Callaghan@dojni.x.gsi.gov.uk.
  4. See Article 3(1) of the Protection Measures Regulation
  5. Variation, stay and discharge are the orders in England and Wales that generally will have the effects described in Article 14 of the Protection Measures Regulation as "suspension or withdrawal of the protection measure… suspension or limitation of its enforceability, or withdrawal of the [Article 5] certificate". This is how the change to the protection measure is described in the Article 14 certificate.
  6. Article 14(2).
  7. http://www.justice.gov.uk/courts/procedure-rules/civil/rules
  8. Article 11.
  9. This is a civil warrant for arrest and would lead to civil enforcement proceedings for contempt of court only, not criminal proceedings. Contempt of court can be punished by the defendant being sent to prison or fined, but it is not a criminal offence.

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