Restraining Orders – when will it end?

Introduction

This article discusses the legal basis for making injunctive orders in the criminal and family courts and it concludes with some suggested improvements to the current arrangements.

A restraining order is a civil order preventing a person from doing a certain amount of specified acts, typically of an injunctive nature. An example of the wording of a restraining order is:

‘John Smith is prohibited from:

1. Attending [Complainant’s and/or Prosecution witnesses’ address(es)]
2. Contacting [Complainant and/or Prosecution witnesses’ names]

Until [1 April 2024 / further order]’

A restraining order is a preventative measure as opposed to punitive.

Restraining orders may be made following conviction or acquittal.

Under s5 Protection from Harassment Act 1997 (‘PHA’), courts can make an order prohibiting a Defendant from ‘anything described in the order’ for the purpose of protecting the victim or victims of an offence or any person mentioned in the order from ‘further conduct which (a) amounts to harassment or (b) will cause a fear of violence’. Such order may be made for a specified period or until further order.

In R v Khellaf [2016] EWCA Crim 1297, the Court proposed at paragraph 14 that the following principles govern decisions to impose a restraining order:

‘(1) A court should take into account the views of the person to be protected by such an order as to whether an order should be made. […]

(2) An order should not be made unless the judge concludes that it is necessary to make an order in order to protect the victim.

(3) The terms of the order should be proportionate to the harm that it is sought to prevent.

[…]’ (emphasis added)

There is therefore a presumption against the making of a restraining order, and such presumption may be rebutted by the Prosecution. The terms sought must not be generic or vague; the order must be tailored to the specific circumstances of the offender and victim(s).

A restraining order, although made in the criminal courts, is a civil order; the standard of proof is the civil one (Major [2011] 1 Cr App R 25 (322)), namely on the balance of probabilities. Therefore it is sufficient for the Prosecution to prove that it is more likely than not that the order is necessary for the protection of the victim.

Such an order can also be made under s5A PHA even when a Defendant has been acquitted of the offence triggering the relevant criminal proceedings, provided that the court ‘considers it necessary [in order to] protect a person from harassment by the Defendant’.

The Domestic Violence, Crime and Victims Act 2004 provided a first wave of consolidation of provisions relating to domestic violence across courts, and in particular in relation to restraining orders and the penalisation of non-molestation orders. Both are civil orders in nature, though the former is obtained in the criminal courts and the latter in the Family Court.

Both orders are preventative orders. A non-molestation order can be made in circumstances which echo the necessity test for a restraining order, through the following three criteria: i) there must be evidence of past molestation, ii) the Applicant and/or relevant child must need protection and iii) judicial  intervention is required to control the behaviour which is the subject of the complaint. Both are subject to the same legal framework where a breach arises, the same ‘reasonable excuse’ defence may be available and both are punishable by up to 5 years imprisonment with a single set of sentencing guidelines.

In fact, it is not unusual for both types of orders to have been made for a same incident, on the one hand following a conviction in the criminal courts and on the other arising from domestic violence advice and resulting in Family Law Act proceedings, leaving both orders to run concurrently and complement one another with slightly different wording. It is equally not unusual for the persons mentioned in the orders, whether Defendant/Respondent or Complainant/Applicant, to confuse the two and refer to them interchangeably

Restraining orders can either be made for a set length of time or ‘until further order’. In the former case, the expiry date of the order will be clearly stated. In the latter, however, such an order effectively becomes an indefinite order.

This raises a number of practical issues – is it legitimate to expect a person to be subject to an interference with their liberty indefinitely? Is it proportionate? Can a Defendant be expected to remember the existence and/or the terms of an order 15 – 20 years after a restraining order has been made and be held accountable for any breach, to the extent that this Defendant risks committing a criminal offence for behaviour which would otherwise be lawful behaviour but for the order itself? What about separated parents? How does access to legal advice and representation impact a person mentioned in a restraining order?

Applying to discharge a restraining order

In principle, it is rather straightforward. Any person mentioned in an order may apply to vary or discharge the order, pursuant to s5(4) PHA. In the words of Blackstone’s Criminal Practice 2019 at E21.34, ‘the issue is whether circumstances have changed so that the restraining order is no longer necessary or appropriate’.

An application must be made in writing, to the Court where the restraining order was made. There is no requirement that the persons mentioned in the order be served with the application unless so directed by the Court (CrimPR r31.5(2)(b)(iii)). Paradoxically, s5(4A) PHA states that ‘any person mentioned in the order is entitled to be heard on the hearing of an application’ to vary or discharge it. It is submitted that this does not impose a positive obligation to put the persons mentioned in the order on notice of the application, and merely provides them with a right to make representations should such notice have been given. Nevertheless, it would appear fair and proportionate to allow notice to be given should the CPS and/or the police have omitted to attempt to do so, and adjourn a hearing to enable such notice to be given and a person mentioned in the order to exercise their entitlement to be heard should they choose to do so. It is submitted that, in the alternative, any claim to such entitlement can be disapplied where it is impossible or impractical to give notice, whether formal or informal notice.

The issue may arise, most likely, where an order was made ‘until further order’, and the current whereabouts of persons mentioned in the order have become unknown, through passage of time. I recently represented a client who sought to discharge a restraining order made 16 years ago. The Complainant’s whereabouts were unknown and the (once) Defendant simply sought to have a clean slate with no further restriction on his liberty, regardless of whether or not the restriction caused any inconvenience, for his own peace of mind and for certainty and by extension his own protection from an unjustified interference with his liberty. One must not be subject to an injunctive order merely because it is easier and convenient not to discharge it.

Another issue may arise where a Defendant and a Complainant protected by a restraining order have family ties.

The reality is that, even where there is a change in circumstances, these arise once lawyers have ceased to act for a Defendant and other persons mentioned in the order are not in benefit of legal advice or representation. Many will simply choose to ignore the existence of the order and assure one another that no report will be made to the police. Does that prevent committing a criminal offence by breaching the order? No. A ‘reasonable excuse’ defence may be available in certain circumstances, though the onerous burden of raising this defence would placed on the Defendant who committed the breach. It is therefore essential that the order be discharged by the court before any communication is resumed.

Duration

Whilst non-molestation orders can in principle be made ‘until further order’, they are made only in exceptional circumstances and where there is a long history of expired injunctions. Orders are normally made for 6 or 12 months. If there is evidence of breaches or a shorter history of expired injunctions, the Court may be persuaded to make the order for 2 years, though this is neither automatic nor is there a presumption in favour of making those orders for a longer period of time.

Interestingly, in practice, ‘until further order’ in the Family Court will generally appear in an order where a further order will inevitably be made at a further hearing listed at the time the original order is made, i.e. at a ‘return hearing’ following the original order being made ex parte (without notice being given to the Respondent).

Terms of a non-molestation order

The typical, template wording of a non-molestation order is as follows:

‘The Respondent must not:

• Use or threaten violence against the Applicant
• Communicate with the Applicant except through solicitors or for the purpose of making arrangements for contact between the Respondent and the children of the family
• Go to, enter or attempt to enter, or go within 50 meters of the Applicant’s property at [address of the Applicant]
• Damage, attempt to damage or threaten to damage any property belonging to the Applicant or jointly owned by the parties, or the Applicant’s property at [address of the Applicant]’

In practice, in a domestic context, the Family Court tends to approach a more tailored wording of the terms of the order, to account for the flexible nature of child arrangements. It will particularly allow for some communication in recognition of the fact that separated parents will need to discuss the welfare of their child. It also recognises that seeking commitment from third parties is often unrealistic, particularly in the long term, i.e. a relative or a friend cannot be expected to commit for years to acting as a third party to discuss child arrangements. Finally, flexibility is required for handovers, and it is not unusual for the above template to be amended at paragraph 3) to include ‘save for the purpose of handovers as may be agreed between the parties or as ordered by the court’.

The standard variation on the wording of a restraining order, namely not to contact person B save via the family court, solicitors or a third party, is indeed unrealistic. A certain number of issues arise:

• There is only limited legal aid available in the Family Court, which leaves parties often unrepresented, and in most cases at least one party will be unrepresented and act as a litigant in person;
• Litigation in family proceedings involves serving documents and attempting to come to an amicable agreement out of court, which would by definition constitute a breach of a restraining order on its standard wording. Whilst this may constitute a ‘reasonable excuse’, it remains an arrestable offence and the burden remains on the person in breach to raise the defence;
• Child Arrangements Orders will often provide for written communication via a contact book which follows the child, capable of constituting a breach of a restraining order;
• Parents inevitably will have to communicate about the welfare of their child, whether medical, educational or as to daily progress and activities;
• Child Arrangements Orders will often provide for specified periods of contact and ‘any further contact as may be agreed between the parties’ – this is particularly important as the recognition that a child’s activities will progress with time, as will the commitments of the parents, and therefore it allows parties to make amendments to an order without having to return to court every few months or years until an order is no longer required;
• Third parties often are or eventually become reluctant to be so, and breakdowns in relationships with third parties are also a common occurrence;
• Where parties have a young child, is it realistic to expect them never to communicate directly for up to 16 years?

My ‘go to’ wording for non-molestation orders has always been ‘not to communicate save for the purpose of discussing arrangements for contact and the welfare of the child, in writing only’. Why? Because it allows for the following:

• The protected person knows that they could easily report any breach should there be any threatening behaviour or communications not relating to the child as it is in writing and any other form of communication would be a clear breach in any event;
• The person subject to the order knows that the protected person cannot take advantage of those communications by making a false allegation as all authorised communications are recorded in writing;
• It allows for communication via a contact book;
• It allows for discussing any matters relating to the child, whether by text for instance to inform of an emergency relating to the child or that a party will be late for a handover, or by letter for instance to forward medical or school related information;
• It enables the parties to record any agreed changes in contact arrangements which facilitates separated parents’ interactions.

Conclusion

The criminal courts could perhaps benefit from a consolidated approach echoing that of the Family Court. I suggest that it should take two forms:

• Guidance to be provided that restraining orders should be made for definite and relatively short periods of time commensurate with the offence for which the Defendant received a conviction and/or the history between the parties, as anticipated by the proportionality test under s5(3) PHA;
• The criminal courts should be more flexible with the terms of a Restraining Order in a domestic context.

This would provide a proportionate approach to the circumstances of individuals, whether Defendant or Complainant, who do not benefit from everlasting legal representation and more often than not do not have access to primary legal advice.

It would also provide a higher degree of certainty and thereby a higher rate of compliance with such orders, particularly where they are inconsistent with orders made by the Family Court. Injunctive orders made by our justice system ought to reflect our social norms and dynamics.

It would also ensure that no unfair burden is imposed on a Defendant to make an application to discharge an order interfering with his/her liberty which has naturally and ineluctably lost its necessity and proportionality, and therefore its lawful basis, through time.

By Sarah Memmi

20/05/2019

If you have questions relating to proceedings for a restraining order or a non-molestation order, contact our Crime Team or our Family Team on 020 8299 6000 or via our contact page http://gtstewart.co.uk/contact-us/