How To Get A Restraining Order On Someone
A restraining order gives people their fundamental human right: to feel safe, secure and free from any form of abuse. Unfortunately, abuse has become all too familiar with 24,000 people making Google searches relating to restraining orders each month in the UK.
If you are one of these monthly searchers, our solicitors are here to help you understand exactly what a restraining order is, and how you obtain one.
If you are currently a victim of domestic violence, assault, harassment or stalking, make sure you call the police.
For more information, please visit our criminal defence page. Furthermore, if you want to contact a solicitor today, please call us directly on01273 726951.
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What is a restraining order?
In the UK a restraining order is a court order that can only be issued in combination with criminal proceedings. Therefore, to obtain one, you will need to report the individual to the police and take them to court for their crimes.
It will only be when the judge believes there is a reasonable chance that the victim of the crime will continue to be harassed by the perpetrator that a restraining order will be granted.
The order prohibits your abuser from being able to do certain things, for example contacting you or attending your place of work or home address.
It's important to note that lots of people confuse restraining orders with non-molestation orders or protective injunctions. You can't apply for a restraining order if you simply want someone to stay away from you, for example, unless they are convicted of a crime against you. While it's true these other types of order do prevent harassment and are no less valid, they have to be applied for in different ways to a true restraining order.
When might you a restraining order be granted?
The aim of restraining orders is always to prevent harassment, and they will only ever be issued in a preventative capacity. Some common examples of when a restraining order is applicable may include:
- there is evidence that the defendant has targeted the victim in some way (for example, criminal damage).
- cases where the defendant and victim know each other or have been in a previous intimate relationship (such as domestic violence cases).
- both parties have ongoing contact (for example, where the victim and defendant run a local business).
In all these cases, the victim must demonstrate that a crime has been committed against them before a restraining order can be issued.
When would a restraining order not be suitable?
If no crime has taken place, the criminal courts won't be involved, and therefore a restraining order can't be granted.
There are other orders that exist for different situations. For example, if you are going through a particularly bad divorce and fear an attack from your ex-partner, you would need to apply for a non-molestation order. These are similar to restraining orders, but they can only be applied for through the civil courts.
Protective injunctions or protection orders can stop stalkers or other unwanted attention, but they need to be strongly substantiated for a court to consider them.
What are the grounds for getting a restraining order?
The standard test for the order can be sought is whether or not there is evidence of harassment or risk of violence (or further violence) against a victim. You can get a restraining order against someone if the person has:
- Abused (or threatened to abuse you)
- Sexually assaulted you
- Stalked you
- Seriously harassed you
- Made you feel scared or annoyed
It doesn't matter whether the abuser is a close family member or a complete stranger, a restraining order can still be used to protect the victim.
How to get a restraining order?
As highlighted earlier, a restraining order is only issued in combination with criminal proceedings. However, you won't be able to make the application yourself. In the criminal court, the judge decides to make a restraining order.
Furthermore, a judge may still issue the order if the defendant is found not guilty in the criminal proceedings. The courts will only make a restraining order after acquitting a defendant of any offence if the court considers it necessary to protect a person from harassment from the defendant.
The order's purpose is to be both a preventative and protective measure. Therefore, a judge will grant the order if there's a reasonable belief that a victim needs specific security.
If the defendant was acquitted, and the courts didn't issue the order, don't worry. If you're still living in fear, you can apply for an injunction in the civil courts, e.g. the county court.
How long does it take to get the order?
On average, it takes between one to two weeks to acquire the order. However, in severe cases, where the order's applicant is at immediate risk of significant harm, the order can be approved on the same day.
If the court's issue a restraining order on the same day it's called an 'injunction without notice'. In this instance, you will need to go back to court at a later date for a hearing once the abuser has been given notice of the order.
Categories that are considered of significant harm include:
- Physical abuse
- Sexual abuse
- Emotional abuse
- Neglect
How long does the order last?
A restraining order can be both temporary or permanent.
If the order is temporary, it's a short term order. A temporary order aims to protect an individual until there is a subsequent or final hearing. Typically these orders last from five days to two weeks but may last longer depending on the next hearings' date.
A permanent restraining order is much longer-term, usually 6-12 months, and sometimes can last indefinitely. This type of order is generally made at trial.
A court can extend an order. You can do this via an application for an extension hearing. The hearing can take place up to 1 year after your first restraining order.
What happens if you breach a restraining order?
If the abuser violates any of the terms of the restraining order, the victim should call the police. Once the police have been alerted for violations of the order, they will sign a criminal complaint meaning the abuser is in contempt of court.
The breach of any court order, including a restraining order, is classed as a criminal offence. Any infringement of an order is a serious matter and will result in serve legal consequences.
The sanctions imposed by the courts for breaching a court order can include:
- Financial fines
- The loss of individual rights (for example, child visitation rights)
- Custodial sentencing
- A probation period or extended probation period
- Community service
If there has been a breach of an order, the victim will need to provide proof in court. The judge will then evaluate the evidence and conclude whether defiance occurred or not and whether the defendant will face any sanctions.
How do I remove a restraining order?
As the courts put restraining orders in place, you will also need to use the court process to remove them.
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. A motion is a process of removing a law.
Any motion to remove a restraining order must include:
- The names of both parties
- The date the courts issued the order
- Reasons for wanting to end the order
In the court hearing, the judge will decide whether to grant or deny the application to remove the restraining order. Some factors that impact whether the judge grants the application are whether you were forced or coerced to apply for the removal of the order. Even if you can prove you solely decided to make this application, the judge may still not agree to remove the order if they believe it is in your best interests.
Why contact our criminal defence solicitors?
Criminal proceedings are a complicated procedure at a very stressful time. If you need a solicitor to defend a criminal accusation against you or need a solicitor to help you apply for an injunction or non-molestation in a civil court, we can help.
For more information, please visit our criminal defence page. Furthermore, if you want to contact a solicitor today, please call us directly on01273 726951.
How To Get A Restraining Order On Someone
Source: https://brittontime.com/2021/01/29/everything-you-need-to-know-about-a-restraining-order/
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