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New regime on restraining orders welcomed

30 September 2009

Solicitors have welcomed a change in the law which will allow the criminal courts, from tomorrow, to make restraining orders against the perpetrators of domestic violence, whether they have been convicted of a criminal offence or not.

Criminal courts have until now only been able to make an order after a conviction for harassment or putting someone in fear of violence.

Following implementation of section 12 of the Domestic Violence, Crime and Victims Act 2004, orders can be made following a conviction for any offence where the court believes it is necessary to protect people from harassment or conduct that is likely to put them in fear of violence.

They can also be made after an acquittal, though in this case only to protect people from harassment. In both cases, courts will need to see “sufficient evidence” that an order is necessary.

Ministers hope the change will reduce delay and cut legal aid costs.

Jane Wilson, chair of Resolution’s domestic abuse committee, described the extension of the courts’ powers as “a very good idea, in theory” but the practicalities were a concern.

“The question is whether the order will be in the appropriate terms. If a perpetrator has children, there will be problems if he cannot pick them up from and take them to school.

“The victim is unlikely to be in court unless there is a not guilty plea, so the victim impact statement will provide important evidence of harassment when the court decides whether to make an order.”

Wilson said the extension in the courts’ powers would save the fees involved in the client making a separate application for a civil non-molestation order and the time spent waiting for the criminal proceedings to end.

Neeta Desor, principal of Desor & Co in Hayes, Middlesex, said that in general increasing the powers of the courts was a good thing, but she had reservations about the criminalisation of the process.

“Victims often do not want the fathers of their children to be imprisoned,” she said.

She added that the motive for the changes could be “economically driven”, rather than inspired by the need for greater protection of victims.

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