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. The Protection Measures Regulation forms part of retained EU law in the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, and provision is made in the Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019 for its provisions in relation to “incoming” protection measures to continue to have effect so that incoming measures can be enforced in England and Wales.
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.
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.
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.
- EU Regulation No 606/2013 OJ L 181/4 of 29 June 2013
- Simon Stockwell, Family and Property Law, Scottish Government, St Andrew's House, Regent Road, Edinburgh, EH1 3DG. firstname.lastname@example.org
0131 244 3322.
- Naomi Callaghan, Civil Justice Policy Division, Department of Justice, Massey House, Stormont Estate, Belfast BT4 3SX. Naomi.Callaghan@dojni.x.gsi.gov.uk.
- See Article 3(1) of the Protection Measures Regulation
- 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.
- Article 14(2).
- Article 11.
- 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.