A great many people are subject to restraining orders made under the Protection From Harassment Act 1997. The orders are designed to protect people from harassment and are commonly made in so-called ‘domestic violence’ cases. Advice is not given by the court at the time about how to discharge a restraining order.
Of course, life moves on. It is quite common for old relationships to become re-established. If this should happen before a successful application is made to discharge a restraining order, the person subject to the order is at serious risk of committing a criminal offence. The offence of breaching a restraining order carries a maximum sentence of 5 years imprisonment.
In other cases a restraining order may have, for example, geographic restrictions that are no longer appropriate.
Whatever the reason, there is a procedure to vary or discharge the order.
Is legal aid available to discharge a restraining order?
Legal aid may be available to a person subject to the order, dependant on a full assessment.
We also offer a competitively priced private client service.
Who makes the application to discharge the order?
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 important as it allows the person who is protected by the order to support or even initiate, any application to vary or discharge.
What are the criteria for discharge of the order?
There aren’t any statutory criteria for the court to apply, but case law sets out 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.’
Where the person protected by the order supports the discharge, the application is much stronger. In this context 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.’
How we can assist with your application
Firstly we will take your instructions and advise you as to the chances of a successful variation of discharge of your restraining order.
If we represented you in the original hearing then we will already have the information relating to your case. If another firm of solicitors dealt with your case then we will be able to contact them to seek the papers relating to that case.
Please contact the office most convenient to you. Alternatively you can use the contact form below.