Civil vs Criminal Protection Orders Explained

In the context of domestic abuse and harassment in England and Wales, courts can issue a variety of protective orders designed to limit abusive behaviour and safeguard victims. These orders generally fall into two broad categories: civil protection orders, typically applied for through family or civil courts, and criminal protection orders, made in the course of criminal proceedings. Although both types aim to prevent harm, they differ significantly in terms of legal basis, application process, enforcement mechanisms and consequences of breach. This article explains those differences, how each operates, and what victims and respondents should understand about their purpose and effect.

What Are Civil Protection Orders?

Civil protection orders are injunctions obtained through family or civil courts to prevent abusive behaviour. Common examples include:

• Non‑molestation orders – protect individuals (and their children) from threats, intimidation, harassment, violence or unwanted contact by someone they are related to or have lived with.
• Occupation orders – regulate who may live in or enter the family home and can require an abusive partner to leave the property.
• Domestic Violence Protection Orders (DVPOs) and Domestic Abuse Protection Orders (DAPOs) – civil orders with police involvement giving short‑term or longer‑term protection.

Application and Legal Basis

Civil orders are generally applied for by the victim or a representative such as a solicitor or domestic abuse support worker. For instance:

• Non‑molestation orders are made under section 42 of the Family Law Act 1996.
• Occupation orders similarly arise under Part IV of the Family Law Act 1996.
• DVPOs are created under the Crime and Security Act 2010, frequently following immediate police action.
• DAPOs are being piloted under the Domestic Abuse Act 2021 with expanded protective powers.

Civil orders are often used in family law contexts where ongoing relationships, children's welfare, and co‑habitation complicate protective needs.

Burden and Standard of Proof

Applications for civil orders are usually determined on the balance of probabilities - meaning the court assesses whether it is more likely than not that the behaviour occurred and that protection is necessary. This is a lower standard than in criminal courts.

Enforcement and Breach

Although civil protection orders are obtained through a civil process, many include criminal sanctions for breach:

• Non‑molestation orders and certain DVPO/DAPO provisions carry a criminal offence if breached, with powers of arrest and penalties including imprisonment.
• Occupation orders do not automatically criminalise breach unless the court attaches a power of arrest; without it, breach may be enforced via civil contempt proceedings, with fines or imprisonment for contempt.

Civil protection orders aim to regulate behaviour proactively, providing victims with legally enforceable boundaries outside of criminal proceedings.

What Are Criminal Protection Orders?

Criminal protection orders are issued by criminal courts as part of criminal proceedings or in the course of dealing with a defendant. The most common example is a restraining order.

Restraining Orders

A restraining order can be made under:

• Section 360 of the Sentencing Act 2020 (when a defendant is convicted) or
• Section 5A of the Protection from Harassment Act 1997 (when necessary for protection even after acquittal).

These orders are preventative and protective and prohibit specified conduct, such as contacting or approaching the victim, whether directly or indirectly.

How They Are Applied

Restraining orders arise automatically when the court deals with a criminal offence. For example:

• Following conviction for harassment, assault, stalking or domestic abuse‑related offences.
• After acquittal if the court considers protection necessary even without a conviction.

Victims do not apply directly for restraining orders; the police and Crown Prosecution Service take the lead in making applications or inviting the court to consider them.

Standard of Proof

Since restraining orders follow criminal proceedings or are attached to acquittals, the criminal court applies different standards depending on the context:

• After conviction, the assessment aligns with the criminal case evidence.
• After acquittal under the Protection from Harassment Act 1997, the court may apply the civil standard of proof for the protective order element.

Enforcement

Breaching a restraining order is itself a criminal offence. Police can arrest a person without a warrant for suspected breach and courts may impose significant penalties, including imprisonment of up to five years and/or an unlimited fine.

Key Differences Between Civil and Criminal Protection Orders

The main distinctions between civil and criminal protection orders include:

1. Who Makes the Order

• Civil orders are made by family or civil courts, usually on application by a victim or authorised third party.
• Criminal orders are made by criminal courts in the course of prosecuting or disposing of a criminal case.

2. Purpose and Context

• Civil orders focus on preventing abuse, harassment or harm in family and civil contexts.
• Criminal orders aim to protect following criminal behaviour and during criminal justice processes.

3. Application and Evidence

• Civil orders: applicants must persuade a civil court based on balance of probabilities.
• Criminal orders: arise in the context of criminal evidence and can also be imposed on acquittal to protect victims.

4. Enforcement of Breach

• Civil orders may include power of arrest and breach can trigger criminal prosecution, but some civil violations require contempt proceedings instead.
• Criminal orders are enforced as criminal offences, with arrest powers and significant penalties for breach.

5. Scope and Flexibility

• Civil orders focus on domestic or personal relationships and may regulate living arrangements as well as conduct.
• Criminal orders focus specifically on conduct arising from criminal behaviour that justifies protective conditions.

When Each Type Is Used

Civil Protection Orders

Civil orders are often used:

• Where a victim seeks protection against ongoing harassment, threats or abuse from a partner, ex‑partner, family member, or close acquaintance.
• To obtain immediate temporary protection (e.g., DVPOs) or longer‑term protection (e.g., non‑molestation or DAPOs).
• When criminal proceedings are not in place or when additional regulatory conditions are needed in a family law context.

Criminal Protection Orders

Criminal orders are typically made:

• As part of criminal prosecutions for offences against person, harassment, stalking or violence.
• Where a restraining order is necessary to protect the victim even after an acquittal.

Common Questions

Can the same behaviour lead to both orders?
Yes. The same abusive behaviour can result in a civil order for protection and a criminal prosecution resulting in a restraining order, depending on evidence and context.

Are breaches always criminal?
Breaches of most civil orders (for example non‑molestation or certain DVPO/DAPO conditions) are criminal offences, whereas some civil orders without an arrest attachment may require contempt proceedings.

Can restraining orders last indefinitely?
Yes. Criminal courts can make restraining orders for specified periods or until further order, depending on the circumstances.

Final Thoughts

Civil and criminal protection orders are essential legal tools in England and Wales for preventing abuse, harassment and harm. Civil orders, such as non‑molestation and occupation orders, are obtained through family or civil courts and focus on protecting personal relationships and living arrangements. Criminal orders, including restraining orders, arise within criminal proceedings and impose protective conditions in response to criminal behaviour. Understanding the differences in jurisdiction, application process, standards of proof, enforcement and consequences of breach helps victims, advisers and solicitors choose appropriate remedies and navigate the legal system effectively.