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July 16, 2020

Pupils at Albion Chambers are, almost uniquely, still required to undertake a mixed common law practice. Years ago this would have been commonplace at the Bar, but more recently the norm has been for pupils to specialise in a given area of law from the outset. I trained in both Family and Criminal law (amongst other areas!), before refining my practice in recent years. In doing so, I bucked a trend for junior tenants to give up crime in favour of family and did the opposite.

Family law is often thought of as the poor relation to crime, with much made of the different rules of evidence and other aspects. There is, however, one area where the Family Court far outperforms the criminal courts and that is in their experience of drafting restraining orders.

As a family practitioner, there is nothing more frustrating than a case where the Family Court has to work around a poorly-drafted restraining order, drafted in the criminal courts. The reason, in my experience, is that in crime, the orders are often drafted in absolute terms, either prohibiting all forms of contact between a couple who may still be trying to share childcare arrangements, or, conversely, not imposing any restrictions whatsoever in circumstances where the couple wish to continue their relationship. Both approaches are anathema to Family Court practitioners, who learn from an early stage to draft orders which are better designed to regulate contact in a domestic-abuse context, rather than shut it down completely, or do nothing. The nadir of my experience with poorly-drafted criminal restraining orders was the one which stated that ‘the defendant is prohibited from: Not to contact X directly, or indirectly.’ Which arguably criminalised him from not remaining in constant contact with his former partner!

There was once perhaps an argument that the Family Court’s more nuanced approach was because enforcement of those orders was undertaken by the Family Court itself, but such arguments died a death with the enactment of section 42A of the Family Law Act 1996. That provides that breaches of a non-molestation order were are now criminal offences, to be tried in the criminal courts, meaning that there is now no practical difference between the enforcement of a breach of a restraining order under the Protection from Harassment Act 1997, or a Non-Molestation Order under the FLA 1996.

However, while we may have imported the Non-Molestation Order into the criminal courts, in terms of enforcement and punishment, the lessons that can be learnt from those orders when the criminal courts draft their own restraining orders don’t appear to have made the same journey. This is despite the fact that within the definitive guideline on sentencing domestic abuse cases there is a key paragraph which relates to restraining orders, one which I believe is often overlooked:

‘If the parties are to continue or resume a relationship, courts may consider a prohibition within the restraining order not to molest the victim (as opposed to a prohibition on contacting the victim).’

This means, that if a breach of a Non-Molestation Order, drafted by the Family Court, providing protection from simple ‘harassment alarm or distress’ is capable of being tried, proven and sentenced by the criminal courts, then so is a restraining order drafted in exactly the same terms by the criminal courts themselves.

What though is the practical effect? Well, it means that an order, drafted in the criminal courts would provide for contact to take place in a more regulated manner, while still restricting one side from, for instance, ‘using or threatening violence against the complainant’, and prohibiting them from ‘instructing, encouraging or in any way suggesting that any other person should do so.’

But, that’s just a public order offence I hear you cry. Why should we draft an order which just replicates the criminal law? Well, the advantage of the example term above is that it applies to all contact between the complainant and the defendant; it applies to telephone contact, text contact and also it applies in the home; not just in public places (which is rarely where domestic abuse takes place). The real benefit is that restraining orders can be put in place which enhance the quality of protection given to a complainant over and above that offered by the criminal law.

Another prohibition often included in family but not criminal orders, is that ‘the defendant, must not damage, attempt to damage or threaten to damage any property owned by or in the possession or control of the complainant/victim’.

How many times have you seen a case where one partner damages property in use by the complainant, but no charges can be brought under the Criminal Damage Act 1971, because the damaged item was actually owned by the damager? Well, this term would prevent that by ensuring that items which were owned by the person who caused the damage, but used by the complainant, would be protected for the duration of the order. Indeed, a prohibition could be drafted to protect the entire contents of the family home. All perfectly sensible provisions, well within the power of the criminal courts to grant.

Another example of how effective drafting can enhance the protection of victims or complainants is this term, used by the Family Court, to protect addresses:

‘The defendant must not go to, enter or attempt to enter any property where he knows or believes the complainant/victim to be residing.’

One of the problems with a restraining order which prevents a defendant from going to a specific, named address, is that if the complainant stays at another address for a short period, they may not be protected. Even worse, if the complainant moves address permanently, they may need to apply to amend the order in order to include the new address, which may then inform their abuser of the new address in circumstances where they would not otherwise have known of its existence. This term prevents people from going to any address, without needing to define it, albeit whilst protecting the defendant against accidental visits by the requirement to prove knowledge or belief on the part of the prosecution.

It is also important to note that the decision whether or not to impose a restraining order, is that of the court, not of the complainant. The Court of Appeal was clear in R v Khellaf ([2016] EWCA Crim 1297; [2017] Cr App R (S) 1 (1); Blackstone’s E21.32) that although the court should take into account the views of the complainant, those views are not determinative. Despite that, my experience, is that a lack of imagination in terms of the drafting possibilities, usually leads to a situation where opposition to the complainant’s views results in no order being made in circumstances where one could and should be.

It seems to be that the criminal courts should be more willing to impose restrictive orders, as opposed to absolute bars on contact, in those cases where future domestic abuse is feared. Such orders offer a greater degree of protection than the criminal law alone and can be carefully drafted with the particular claimant in mind. In that manner, these orders may also give the police more ammunition to pursue future abuse prosecutions, even where the complainant later retracts their support.

But the advantages of properly drafted restraining orders are not just for the benefit of the complainant. Defence advocates should be particularly wary of blanket ‘no contact’ provisions in respect of defendants who may (unsurprisingly) wish to continue to see their children. Orders which only allow contact ‘via social services’ are, in my experience, utterly pointless. I’m yet to see a case where social services have facilitated child contact without being ordered to do so by the Family Court. Similarly, orders which only allow contact ‘via solicitors’ are very expensive for clients who have to pay for those services privately.

Instead, the parties should consider whether there is an acceptable named third party who could facilitate contact, such as a grandparent, as often happens in family proceedings. Orders can also be drafted which allow contact but restrict its content to only the topic of arranging such contact, extraneous discussion being a breach.

Finally, orders should be careful not to remove any discretion on the part of the Family Court. The Family Court is far more experienced at enabling contact using its own orders and should not be fettered without good reason. That means that orders must be drafted using simple terms which allow such contact ‘as ordered by the Family Court.’ That has the advantage of maintaining any other restrictions which are put in place, whilst allowing the Family Court to proscribe its own terms, without constraint.

Included with this article is a link to a proforma template for a restraining order, based on the template used by the Family Court and drafted by Mr Justice Mostyn, it has been adapted to be used as a template for criminal restraining orders, but the terms are essentially unchanged. Few cases will need to use all of the paragraphs, but they are all terms which are in use by the Family Court, and capable of fair enforcement within the criminal courts. Practitioners should be aware of them as part of a toolbox to enable the drafting of more targeted, practical restraining orders. Prosecutors in particular, should be referring police officers to these terms so that they can discuss them with complainants, and provide targeted feedback to the criminal courts, in accordance with Khellaf.

Alec Small