Restraining Orders in Family Cases and Their Legal Effect

In England and Wales, a restraining order is a court order designed to prevent a person from engaging in conduct that could harm, harass or intimidate another. In family law contexts - especially where there has been domestic abuse, harassment or violence - restraining orders are used to protect victims and manage risk. Unlike some family law injunctions, restraining orders are most often made in the criminal courts and carry criminal sanctions for breach, giving them significant legal force. This article explains how restraining orders work, when they are used in family cases, their legal effect, how they are enforced, and common questions about their impact on victims and those subject to them.

What Is a Restraining Order?

A restraining order is a court order imposed following criminal proceedings or acquittal that prohibits the recipient (usually a defendant) from engaging in specified behaviour towards one or more individuals. It is intended to protect victims from further harassment, threats or abuse. Restraining orders may be imposed when a person is convicted of an offence, or in some cases where they have been acquitted, if the court considers it necessary to protect someone from harassment.

Although restraining orders serve a protective purpose, they are distinct from civil injunctions such as non‑molestation orders under the Family Law Act 1996. Restraining orders are rooted in criminal law, and breach is a criminal offence with potential penalties including imprisonment, fines, or both.

Legal Framework

Restraining orders arise from two primary legal sources:

• Criminal courts following conviction - under sections 359–364 of the Sentencing Act 2020, the court may impose a restraining order when sentencing a person for a criminal offence. The order can be for a fixed period or “until further order” and aims to protect the victim or other named individuals from conduct that amounts to harassment or would cause fear of violence.
• After acquittal - under section 5A of the Protection from Harassment Act 1997, the court can make a restraining order after a defendant is acquitted if it considers the order necessary to protect a person from harassment, irrespective of the acquittal. This procedure uses a lower civil standard of proof (balance of probabilities) because no conviction has been recorded.

Restraining orders are preventative and protective in nature, not punitive in themselves, although breach attracts criminal sanction. Courts must determine that an order is necessary based on the evidence before them and consider the interests of those to be protected when setting duration and conditions.

When Are Restraining Orders Used in Family Cases?

Although restraining orders are criminally based, they are frequently used in family contexts, particularly where criminal offences overlap with family abuse or harassment. Typical scenarios include:

• Domestic violence cases where the offender is convicted of assault, harassment, stalking or similar offences against a partner or ex‑partner.
• Harassment or stalking within families or relationships, even if the perpetrator is acquitted.
• Protective measures following threats, intimidation or repeated unwanted conduct that causes fear or distress to a victim.

In family cases, a restraining order can be tailored to prohibit direct or indirect contact, approaching the victim's home, workplace or other specified locations, or engaging in behaviour likely to cause fear or harassment.

Legal Effects of a Restraining Order

Prohibitions and Restrictions

A restraining order imposes legally binding prohibitions or restrictions on the recipient's behaviour. Common prohibitions include:

• Not to contact the protected person directly or indirectly.
• Not to approach or be near the protected person's home, school, workplace or other specified locations.
• Not to engage in conduct that would constitute harassment or cause fear of violence.

The specific terms vary based on the evidence and the perceived risk to the victim. Crucially, restraining orders are not limited to physical proximity; they can cover communication by any means, including digital contact.

Criminal Sanctions for Breach

Breaching a restraining order without a reasonable excuse is a criminal offence. The penalties can include:

• Imprisonment (up to five years in serious cases)
• Unlimited fines
• Both imprisonment and fines, depending on the severity of the breach and the harm caused

As this is a criminal offence, the police can investigate and the Crown Prosecution Service (CPS) can prosecute breaches. The victim's views, risk assessments and evidence help inform whether prosecution is appropriate.

Duration and Variation

There is no fixed maximum duration for restraining orders set by statute; the court decides on a specified period or until further order based on the evidence and necessity for protection. Orders can be varied or discharged on application by the prosecutor, the defendant, or any person named in the order if circumstances change. This flexibility allows the court to adjust protections as required.

Relationship with Family Law Protective Measures

Restraining orders intersect with but differ from civil protective orders available in family law:

• Non‑molestation orders under the Family Law Act 1996 are civil injunctions that protect against harassment and abuse in domestic contexts and can be obtained through family courts. Breach of a non‑molestation order is also a criminal offence with penalties similar to restraining orders.
• Occupation orders regulate who may remain in or be excluded from a family home; these are civil orders under the Family Law Act 1996 and are not criminal in themselves. Breach may be dealt with as contempt of court rather than a specific criminal offence.

While civil protective orders are often sought by victims in family courts, a restraining order arising from criminal proceedings can provide additional layer of protection, particularly where criminal conduct has been established or is strongly evidenced. Victims may pursue both civil injunctions and criminal restraining orders depending on their circumstances.

Rights and Participation in the Process

Victim Involvement

Victims have a role in the restraining order process:

• In criminal cases, police and prosecutors consider the victim's views, risk assessments and evidence when deciding whether to seek a restraining order as part of sentencing or post‑acquittal proceedings.
• Victims can raise concerns with prosecutors and provide information about ongoing risk to support applications or variations.

The court must consider whether the order is necessary and proportionate to protect the victim's safety before imposing it.

Rights of the Person Subject to the Order

The person against whom a restraining order is made:

• Has the right to know the terms and be informed of the order.
• Can apply to vary or discharge the order if circumstances justify change.
• Must comply strictly with the prohibitions, as breach carries criminal consequences.

Courts balance the need for protection with fairness, ensuring that orders are evidence‑based and narrowly tailored to the risk identified.

Enforcement and Practical Implications

Because restraining orders are criminal instruments:

• Police are empowered to enforce breaches, investigate allegations of non‑compliance and work with the CPS on prosecution.
• Victims who experience breaches should report incidents promptly to police with supporting evidence.
• Records of breaches and patterns of offending can influence decisions on prosecution, sentencing, or extension/variation of the order.

Restraining orders may also be referenced in bail conditions or other court orders to manage ongoing risk while criminal or civil proceedings continue.

Common Questions

Can a restraining order be made without conviction?
Yes. Under the Protection from Harassment Act 1997, a restraining order can be made after an acquittal if the court considers it necessary to protect a person from harassment, even though no conviction has been recorded. The standard applied in such cases is civil rather than criminal.

Does a restraining order expire automatically?
No. The court decides the duration of the order, which can be time‑limited or until further order. There is no statutory default expiry date. It can be varied or discharged on application to the court if circumstances change.

Is a restraining order the same as a non‑molestation order?
No. A restraining order arises mainly from criminal proceedings and focuses on protective restrictions defined in law, whereas non‑molestation orders are civil injunctions under the Family Law Act 1996 that protect against domestic abuse and have their own enforcement mechanisms. Both, however, can carry criminal sanctions for breach.

Key Takeaways

Restraining orders are court‑imposed protective measures that prohibit specific conduct by a person - usually following criminal proceedings or acquittal - to safeguard victims against harassment, violence or intimidation. In family law contexts, these orders are frequently used alongside civil injunctions like non‑molestation orders to provide comprehensive protection from abusive behaviour. Restricting contact, proximity, or communication, restraining orders carry criminal penalties for breach and can be tailored in duration and scope based on ongoing risk. Victims and respondents both have roles in the process and rights to seek variation or discharge where justified. By combining civil and criminal protections, the justice system seeks to prevent harm and support safety for individuals caught up in family conflict or abuse.