Restraining Orders: How are they issued and enforced?

Every person has the legal right to be safe, secure, and free from any form of abuse.

We are sadly all-too-familiar with stories of people being harassed, victimised, mistreated, and hounded. Nevertheless, this does not need to be the case. We are here to stop this unacceptable behaviour now.

Read on for all you need to know about restraining orders and how to get the help you need.

What is a restraining order?

A restraining order is a type of court order, released by a judge, to stop someone inflicting harm on another person. These are generally issued at the end of a criminal hearing and often follow cases involving domestic violence, domestic abuse, harassment, stalking or sexual assault.

What does a restraining order prohibit or prevent?

A restraining order is most commonly issued to prevent hurt or protect victims suffering from domestic violence or abuse. An order must be made against a known and named person such as:

• A specific abusive individual you have had a relationship with
• A particular family member causing duress
• Somebody you have lived with or are living with who poses a threat

A restraining order cannot be made against an anonymous person, such as an unidentified individual making harassing phone calls.

The actions that a restraining order prohibits will depend entirely on the allegations or offences caused by the perpetrator. 

However, an order can include examples such as:

• Not being allowed direct or indirect contact with the victim
• Being prohibited access to a property or premises
• Staying a certain distance away from a person or place

How do I get a restraining order?

In the UK, a restraining order is only issued in combination with criminal proceedings. Therefore, to obtain one, you will need to report the assailant to the police and take them to court for their crimes.

A restraining order can still be issued if the attacker is not found guilty or is acquitted of the offence. This is because a restraining order is both a preventative and protective method. 

Therefore, a judge can grant a restraining order if there is a reasonable belief that a victim needs specific security.

What is a permanent restraining order?

A permanent restraining order is sometimes known as a protective order. 

This order will usually commence straight after the hearing. 

Unlike a temporary order, permanent orders are enforceable for more extended periods and can last indefinitely.

What is a temporary restraining order?

A temporary restraining order (also known as a TRO) is valid as soon as the court issues them. They will frequently have a set expiration date, which can range anywhere from 5 days to 2 weeks. They can also last as long as it takes to arrange a subsequent hearing.

Their purpose is to protect against contact or further interactions until a full hearing can be scheduled. A trial is when a permanent order may be applied.

During the TRO, the person seeking the restraining order must make their case to the courts; either to extend the TRO or make the order permanent. Failure to do so will mean the TRO expires.

Who can apply for a restraining order?

A restraining order can be requested by either:

• the victim of a criminal offence
• the prosecutor of a criminal case

However, the final overriding decision will be made by the judge following a court case.

How long does a restraining order last?

There is no set timescale for restraining orders, as it depends on the offence and the level of risk to the victim.

An order can last for a specified time or be for an indefinite period. However, upon further request, a restraining order can be varied or cancelled altogether.

What happens if a restraining order is breached?

The breach of any court order, including a restraining order, is classed as a criminal offence. Any infringement of an order is considered a profoundly serious matter by the courts, resulting in some grave legal ramifications.

It is important to note that, even if both parties agree to contact, if they have not had the restraining order annulled, then this will still be a breach.

The penalty imposed by contravening a restraining order will depend entirely on the severity of the violation. A judge will consider certain things, such as:

• whether it was a one-off-event or there were multiple infringements
• whether any violence was used, or harm inflicted

The sanctions imposed by the courts for breaching a restraining order can include:

• Financial fines
• The loss of individual rights (for example, child visitation)
• Custodial sentencing
• A probation period or extended probation period
• Community service

If a party infringes a restraining order, there will need to be a court hearing. Consequently, the victim will likely have to provide proof of a breach. The judge will then evaluate the evidence and conclude whether defiance occurred or not and whether any sanctions will be imposed.

It is possible that any individual instances of contact could be dealt with as separate violations. For example, if a perpetrator sends three text messages, then this could be seen as three separate breaches of the order. This could, therefore, result in more grave punishment.

Can you remove a restraining order?

There are occasions when a restraining order can be lifted or removed. However, specific strict procedures need to be followed to ensure that the actions are not in contravention of the law.

Thus, you may question why a person would want to eradicate an order protecting them. However, any lift should indicate that both parties want to resume contact with one another. 

The person who initially requested or agreed to filing the restraining order is not being coerced into the change in any way.

How do you remove a restraining order?

As the courts put a restraining order in place, it will also need to be removed via a court process too.

You will need to consider any applicable time limits on the order before deciding how to proceed.

If your restraining order has a time limit

Once the time limit concludes then the restraining order will expire unless it is renewed or extended through the courts.

If your restraining order does not have a time limit

If you intend to lift or drop a restraining order before the time limit expires, then a motion will need to be filed with the court.

Any motion to remove a restraining order must include:

• The names of both parties
• The date the restraining order was issued
•  The full reasons for wanting to end the order

Following a court hearing, the judge will decide whether to grant or deny the motion to eradicate or void the restraining order.

What documents or evidence do I need to remove a restraining order?

Various types of documentation could be required to evidence your claim to remove a restraining order. These will depend on the specific circumstances relating to your situation but can include:

• • The restraining order certificate itself
  • Evidence of completing rehabilitation programmes (for example, proof of anger management classes or drug and alcohol courses)
  • Statements provided by others (this can include written affidavits or oral testimonies)
  • Any relevant evidence relating to child custody or visitation guidelines
  • Relevant records provided by probation officers or law enforcement authorities

Should I employ a solicitor to deal with a restraining order?

We always recommend seeking the advice and guidance of any trained legal specialist to help you navigate your way through the process of a restraining order.

Obstacles and complications can arise very quickly. If you are at risk, or fearful of potential danger, then the process must be as smooth and stress-free as possible.

An experienced and qualified criminal defence solicitor will be able to provide you with recommendations about your rights. They can also represent you in court and obtain the best possible outcome for you and your family.

Have you been accused of an act? Issued with a restraining order or accused of violating an instruction? Then it is also essential to act quickly.

A legal expert will be able to provide you with competent counsel on how to move forward or reinstate your reputation where necessary.

Key Takeaway

We understand first-hand the difficulties faced by victims of abuse. Nothing is more important than being safe, feeling secure and having the support of a legal representative who can safeguard you and your loved ones.

If you have any questions, concerns or queries relating to any aspect of a restraining order, then please do not hesitate to get in touch with us today. Our criminal lawyers are here to provide you with confidential, sympathetic and professional advice about your situation.

Related article: How to discharge a restraining order?