How To Discharge A Restraining Order
Restraining orders made under the Protection From Harassment Act 1997 affect a large number of people, both those that are subject to them and those that they protect.
The orders are intended to protect people from harassment and are often made in so-called 'domestic violence' cases.
However, relationships are subject to change, and it is not uncommon for old relationships to be re-kindled. If this occurs prior to an order being discharged, the person subject to the order is putting themselves at grave risk of committing a criminal offence which carries a sentence of up to 5 years in prison.
In other cases, an order may include restrictions that are no longer relevant, for example, if someone is restricted from travelling to a certain geographic area and the person the restraining order is designed to protect moves, this geographical restriction may no longer be appropriate.
Whatever the situation, there is a legal process to vary or discharge the order.
Can I get legal aid for the removal of a Restraining Order?
It is possible for a person subject to the order to receive legal aid, but it would be dependent on a full assessment.
Unfortunately, we do not undertake legally aided cases. Legal aid does not cover the sheer amount of work required to properly prepare these type of cases.
Legal aid is NOT available to a person protected by the order.
We provide a competitively priced private client service.
Who is entitled to make the application?
The Act says that:
'The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.'
This is critical because it permits the person who is protected by the order to endorse or even instigate, any application to discharge or vary.
What are the criteria for having a Restraint Order removed?
There is no statutory criteria for the court to apply, but case law outlines the following approach:
'The only question on an application or further application, under section 5(4) of the Protection from Harassment Act 1997, to discharge [or vary] a restraining order made under that section, was whether something had changed so that the continuance of the order was neither necessary nor appropriate.'
Suggesting that there really must be a persuasive case to convince the court to change its mind.
In instances where the individual protected by the order endorses the discharge, the application is considerably stronger as the Court of Appeal has observed:
‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with. Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses. It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately, she is an adult and free to take those decisions for herself. The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained. She told them unambiguously that she wants this order revoked.’
My partner is subject to a Restraining Order, can I discharge it?
In short, yes. If you are a person protected by a restraining order, you can apply to the court to have it discharged/revoked.
Recent cases before the Court of Appeal have made it absolutely clear that, provided a person has capacity and has not been forced, it is a matter for them who they chose to have a relationship with.
Although the police will often oppose applications made by persons protected by a restraining order (ie the victim), the law is not necessarily on their side. The criminal courts should not be used to prevent an adult from deciding who he or she wants to live with.
We will impress upon the Court that the views of a person of full age and capacity, in addition to their Article 8 rights to a private and family life, should be respected.
We have a very high success rate in discharging restraining orders made by persons protected by it.
How we can assist
We can advise you as to the chances of a successful variation or discharge of the restraining order you are subjected to.
If an application is to be made, we will meticulously prepare an evidence bundle and submissions for the court and will represent you in any court proceeding. This will usually include a written application supported by a skeleton argument (setting out the law and Court of Appeal authorities) and a statement from you setting out your reasons for making the application.
Although based in Manchester and Stockport, we can represent you anywhere in England and Wales at no extra cost.
If you are considering making an application to vary of discharge a restraining order, contact Jared McNally on 01612492700 or firstname.lastname@example.org to make an appointment.