Conflict of Preliminary Measures: Domestic Violence and Child Access

The Czech legal system offers a procedural tool that provides almost immediate assistance to the victims of domestic violence: a preliminary measure on the protection against domestic violence. The court may, inter alia, order the defendant to refrain from meeting the complainant (Section 405(1)(c) of the Act on Special Court Proceedings). In contrast, there is a procedure in matters related to children which regulates contact with children in any situation. The family court may regulate or prohibit child access also by way of an preliminary measure (Section 76(1)(e) of the Code of Civil Procedure). If the two situations meet and domestic violence is directed by a parent against a child, the child has two means of protection, even though neither the legal system, nor case-law nor legal literature describe the relationship between the two means.
Therefore, it may happen that the court first prohibits an encounter between the parent and the child by a preliminary measure pursuant to Section 405(1)(c) of the Act on Special Court Proceedings, but subsequently the family court orders a preliminary measure which regulates his/her access to the child (authorises him/her to have the access). Since preliminary measures are enforceable by issuing, the two decisions may be enforceable simultaneously without one of them being defective or without a hierarchy between them being established. They are therefore in a conflict.
The paper describes the situation with the aid of a model case. While using the method of analysis of legislation, case-law and literature, it concludes that there are identical claims in the model case and therefore the lis pendens rule or the principle of res iudicata should be applied. In practice, this means that the court should stay the proceedings initiated as a second in a row, or a court of appeal should annul the appealed decision and then stay the proceedings. However, the paper also points out that the answer to the question: “Which of the two proceedings is subject to lis pendens rule or principle of res iudicata and should therefore be stayed?” may change at different stages of the proceedings, as the defective proceedings may be “reversed” over time – the proceedings firstly initiated may become defective and vice versa. This depends on many circumstances, including a procedural activity of the parties.
There is a substantial interest in respecting procedural safeguards and rules in proceedings involving children and such proceedings should be subject to stricter requirements for the protection of children. That is why the author proposes the lis pendens rule and the principle of res judicata to be applied to the conflicts. However, the paper also examines what is in the best interests of the child in the domestic violence situations, and whether one of the proceedings available to the child is so convenient that it should be preferred every time. The author proposes that the legislation on the preliminary measure on the protection against domestic violence is amended to prevent the child from being a petitioner in the proceedings. This solution has two advantages: the protection will be preserved for the child to the extent of banishment of the violent parent from the home (on condition that the other parent is the petitioner). At the same time, the authority to regulate the child access will remain solely in the hands of the family court, so that no such conflict can arise and the two-track system will be eliminated.