Restraining Order V Non-Molestation Order.

What is the difference?

Photo by Sherise VD on Unsplash

Many people ask me - “what is the difference between a restraining order and a non-molestation order? It confuses many and with good reason. And to add even more confusion there are orders called Undertakings as well! but I will deal with Undertakings in my next blog. For now, lets concentrate on Restraining Orders and Non-Molestation Orders.

The main difference between a restraining order and a non-molestation order is that a restraining order is given in the criminal court, so a Magistrates Court or Crown Court, and a non-molestation order is granted in the civil or family court. Both do roughly the same thing. They can both have various clauses within them to stop them doing things such as:

• Contacting someone in any way

• Physically assaulting someone

• Harassing someone over the phone or via social media

• Following someone on the street

• Anything else that puts someone in fear of their safety

The fundamental difference between the two is:

A restraining order can be given by a criminal court after a conviction for any criminal offence. They are made in respect of the alleged perpetrator or what is known in a criminal court as ‘the defendant’ - not the victim. They are appropriate where the victim and the defendant are known to each other. A restraining order is a preventative and protective measure. A restraining order can also be given when someone is acquitted. This is known as a Section 5A PHA 1997 and was introduced for when it is clear that a victim needs protection but there is not enough evidence to convict on the evidence brought before the court. Restraining orders on acquittal are civil behaviour orders and therefore the standard of proof is a civil one*. A restraining order can last for 12 months but could be longer and/or indefinite, given the degree of severity for which it has been given in the first place.

A Non-Molestation order is given in a civil or family court. They are made in respect of the victim, not the perpetrator. A non-molestation order does not involve the police unless it is breached by the perpetrator. It has a ‘power of arrest’ and if the order is breached the police can arrest the perpetrator and take them to court. If the breach is proven, the perpetrator can then be charged with a criminal offence which could mean a prison sentence of up to 5 years or a fine or both. A prison sentence may not be given for what is deemed a minor breach but should still be reported as if there are many minor breaches, this can sometimes constitute a major breach over time. A non-molestation order usually lasts from between 6-12 months but sometimes they can be ‘until further notice’.

*It is worth noting that there are two ‘standards of proof’ and they are different for criminal and civil courts. The standard of proof for a criminal court is of a higher position than of a civil court and is ‘beyond reasonable doubt’. The standard of proof for a civil court is of a lower position and is a ‘balance of probabilities’.