Tuesday, 4 March 2014

Enforcement of Foreign Protective Orders

The Hague Conference on Private International Law is working on how to encourage the recognition and enforcement of foreign protection orders, a.k.a. restraining orders, that aim to protect persons found to be at risk of attack or abduction related to e.g.  domestic violence, stalking, forced marriages,  “honour crimes”, human trafficking, and the like.   The initiative is intended to address problems such as (a) the delays and costs the person to be protected will face in the jurisdiction he/she has come to (the “jurisdiction of refuge”)  to obtain a new protective order or to have a foreign order enforced, and  (b) the lack of sufficient evidence in the jurisdiction of refuge to establish the court’s jurisdiction and to support the issuance of a protective order in respect of a threat that arose in the foreign jurisdiction (from where the person has come),  among other problems.        

The experts believed that victims or potential victims should have assurances in advance of a move abroad that their protective order will be enforceable there, so as to protect their mobility rights. As well, if the person against whom the order is issued knows the order can be enforced abroad, that will increase general deterrence.   Finally, the experts are looking into how to achieve specific deterrence by finding a way to achieve “on-the-spot” enforcement in cases of imminent harm.

At the meeting of the Experts’ Group on Recognition and Enforcement of Foreign Protective Orders in The Hague on Feb 12-13, 2014 the types of orders considered do not have final financial or property ownership consequences and do not determine final parental rights or responsibilities.    Thus the scope of enforcement proposed is limited compared to the laws of some jurisdictions including Canada that already permit, on a case by case basis, enforcement of a broad range of foreign non-monetary judgments and orders. 

Although the European Union and some individual states are working on enforcement of foreign protective orders, there is no global instrument in this area.

The Group considered three approaches to recognition and enforcement.   To facilitate on-the-spot enforcement, the group discussed the possibility of automatic recognition and enforcement of a foreign protective order upon presentation of same,  perhaps accompanied by a multi-lingual enforcement certificate, presumably to confirm the order is in effect, and perhaps to confirm it is intended to have extraterritorial effect.   This approach might be necessary in the case of imminent harm.   Another approach is advance establishment of a protective order, i.e. to permit the courts to take jurisdiction over the parties involved and to issue a protective order even before the person to be protected has arrived in that country, perhaps on the basis that courts elsewhere have already issued such an order.   Even in cases where harm is not imminent, traditional methods of obtaining recognition and enforcement may well be too slow to ensure adequate protection.  A third approach is advance recognition, i.e. to permit those courts to recognize a foreign protective order before the person to be protected has arrived in that country.

The Group recommended that further work on recognition of foreign protective orders, including the feasibility of a global instrument, be carried out.   Their recommendation will be considered by the Council on General Affairs and Policy of the Hague Conference when it meets in April, 2014.




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