A great many people are subject to restraining orders made under the Protection From Harassment Act 1997.
However, life moves on, and it is quite common for old relationships to be re-established. If this happens before an order is discharged, the person subject to the order is at serious risk of committing a criminal offence which carries a maximum sentence of 5 years imprisonment.
In other cases, an 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?
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?
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?
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.’
It follows therefore that there really must be a compelling case to persuade the court to change its mind.
Where the person protected by the order supports the discharge, the application is much 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.’
How we can assist
We will be able to advise you as to the chances of a successful variation or discharge.
If an application is to be made, we will meticulously prepare an evidence bundle and submissions for the court and present these on your behalf.
In the first instance contact Simon Morton at Mortons Solicitors to speak to us about making an application.