Protective orders

What are protective orders?

To help prevent a person causing harm or annoyance to another person, a court can issue a protective order. They put different restrictions on a person depending on the severity of the case.

The most common orders are non-molestation orders, occupation orders and restraining orders.

Non-molestation orders

Under the Family Law Act 1996, as amended by the Domestic Violence Crime and Victims Act 2004 (DVCVA 2004), a court can make a non-molestation order that includes a provision stopping someone:

  • molesting another person who is associated with the respondent;
  • molesting a relevant child.

You can generally apply for a non-molestation order if you’re a victim of domestic violence and the person you want to be protected from is:

  • someone you’re having or have had a relationship with;
  • a family member;
  • someone you’re living with or have lived with.

Occupation orders

If you’re a victim of domestic violence and meet the requirements below, you can apply for an occupation order which outlines who can live in the family home or enter the surrounding area. You can apply if:

  • you own or rent the home and it is, was, or was intended to be shared with a husband or wife, civil partner, cohabitant, family member, fiancé or parent of your child;
  • you don’t own or rent the home but you’re married or in a civil partnership with the owner and you’re living in the home;
  • your ex-husband, wife or civil partner is the owner or tenant, and the home is, was, or was intended to be your shared matrimonial home;
  • the person you live/lived with is the owner or tenant, and the home is, was, or was intended to be your shared home.

Serving a non-molestation or occupation order

A copy of your application for an order and witness statement must be ‘served’ on the person named in the application in person. You can do this yourself if it won’t put you in danger; otherwise, your solicitor, if you have one, or the courts will do it.

Court hearing

The court hearing will be held in private with just you and the respondent present. After hearing all the evidence, the court will: ask you for more information; obtain an undertaking from the respondent to do or not do something; or grant an injunction for a set amount of time. When this time expires the court will decide whether to renew the order.

Breach of a non-molestation or occupation order

Since 1 July 2007, it has been a criminal offence to breach a non-molestation order. If someone breaches a non-molestation order, therefore, you should report them to the police. They can be tried for this offence in the magistrates’ court or Crown Court where they could be sentenced to up to five years imprisonment.

If you don’t want to bring criminal proceedings, you can apply to the court that made the order for the person to be arrested and/or punished. If the court finds they have breached the order, they can be sent to prison, fined or be given a suspended prison sentence. The civil courts, however, do not have the range of sentencing powers that criminal courts have.

Someone who breaches an occupation order can be arrested by the police if the order had a power of arrest attached to it. The police can arrest them and take them to the court that made the order to be punished. Where a power of arrest is not attached, you’ll need to apply to the court that made the order to have your abuser arrested and/or punished. Someone who breaches an occupation order may be committed to prison, fined or given a suspended prison sentence.

Restraining orders

Under the Protection from Harassment Act 1997 (PfHA 1997), it is an offence for a person to act in a manner that will cause you harassment or make you fearful of violence towards you. If you think you’re being harassed, you should report it to the police who may be able to take action against the person responsible.

If a person is prosecuted, they may have a restraining order imposed upon them by the criminal courts, even if they have been found not guilty.

A restraining order prevents the person harassing you from doing anything outlined in the order including using or threatening violence, communicating with you (by phone or email) or going to certain places.

You can also apply for a restraining order yourself through the civil courts. These orders are useful if you don’t have a close enough relationship with the person harassing you to enable you to get a non-molestation or occupation order.

Breach of a restraining order

Breach of a restraining order is a criminal offence that can be tried in the magistrates’ court or Crown Court. The maximum sentence for a breach is five years imprisonment.

Sentencing considerations

When deciding on a punishment for the breach of a protective order, the court will consider a range of issues including: the circumstances of the breach; whether violence was involved; whether there were any aggravating factors (eg, whether the victim was vulnerable, old, disabled, pregnant or a child) or mitigating factors (eg, if the victim initiated the contact); and the offender’s history.