A court has the discretion to make a restraining order on a conviction (and in some cases on acquittal).
The purpose of such an order is to protect the victim from conduct which amounts to harassment or will cause a fear of violence.
The order may be for a fixed period of time or without any time restriction.
The orders are frequently made in domestic violence cases but are not restricted to those.
The applications should be made on notice but often are not.
The pressure from the courts and judiciary to enter a plea and deal with the sentence on the first hearing has meant that formal notice is regularly not given. In practice (especially in the Magistrates Courts), the order is made within days of the offending.
The process, by which the conditions are imposed, often amounts to a mental ‘cut and paste’ of bail conditions imposed by the police.
Little consideration may be given to practical issues such as child contact or payment of maintenance.
Some effort may be made to address these by adding riders to the conditions. But the exceptions either rely on the good will of third parties or a reliance on the family court or social services.
Over time the conditions may become onerous, unfair or impractical.
Third parties lose patience. Victims change address. The parties reconcile and live in complicit harmony.
The need for a particular preventive measure or the need to protect the victim may be diluted by the passage of time or the parties’ circumstances.
When this happens the order should be varied or discharged. Many people believe that only the Prosecutor or the protected person can make that application.
The Law allows for the prosecutor, the defendant or any person named in the order to apply to the court to vary or discharge the order.
Legal Aid is available (subject to means) to make such an application or make representations to the court.
Examples of issues that regularly occur and appear to justify a variation are;-
There is a restriction on entering a road or an area. The victim moves address or job. The condition is redundant and the new home or workplace needs to be protected.
A defendant acts in a way that does not justify an arrest but causes concern to the victim. The court could be asked to extend an exclusion area.
A child of the parties attains an age where they wish to have better contact with the defendant.
An arrangement for contact with a child or children is well established. Some communication between the parties becomes inevitable. The order could be varied to regularise that contact.
The parties have reconciled fully or to some extent.
The power to vary is not an appeal.
It allows the court to take account of the circumstances as they exist now and the current views of the parties.
If you are subject to a restraining order or are a person named in the order, you can apply to the court to vary the order.Posted on: Thu, 25 May 2017