What are the Key Differences Between a Civil and Criminal Restraining Order?

In the complex landscape of legal protections, restraining orders serve as a vital safeguard for individuals facing harassment, threats and/or violence. In England and Wales, two primary categories of restraining orders exist: civil and criminal. While both types of orders aim to provide protection, they operate under different frameworks, with distinct processes and legal implications. Understanding the key differences between civil and criminal restraining orders is essential to determine which option might be the best for your specific situation.

Understanding Restraining Orders

A restraining order is a court-issued directive designed to limit the actions of an individual who poses a threat, ensuring the safety of the person seeking protection. These orders are particularly significant in contexts involving domestic abuse, stalking, harassment or violence.

Civil Restraining Orders

Civil restraining orders are typically sought by individuals aiming to protect themselves from perceived threats or harassment from another person. The two main types of civil restraining orders in England and Wales include Non-Molestation Orders and Occupation Orders.

Key Features of Civil Restraining Orders:

1. Application Process: The process begins when a person, known as the applicant, files for a civil restraining order in a civil or family court. The respondent, or the individual against whom the order is being sought, may not initially be present at the hearing. This allows for a swift response to urgent situations.

2. Nature and Purpose: The primary aim of a civil restraining order is to prevent harassment or harm. For instance, a Non-Molestation Order can prohibit a person from using or threatening violence or harassing the applicant. These orders focus on creating a safe environment rather than punishing the offender.

3. Burden of Proof: In civil cases, the burden of proof rests with the applicant. They must demonstrate their case on the balance of probabilities, meaning they need to show that it is more likely than not that they have been harassed or are at risk of harm.

4. Duration: Civil restraining orders can be granted for a limited time, often up to a year, but they can be renewed or extended if circumstances warrant.

5. Enforcement: If the respondent breaches a civil restraining order, the applicant can seek enforcement through the civil courts. The consequences may include additional court orders or penalties, such as fines.

6. Court Procedures: The process is generally streamlined to allow for quick resolutions in urgent cases, focusing on providing immediate protection to vulnerable individuals.

Criminal Restraining Orders

Criminal restraining orders emerge from criminal proceedings and are typically applied after a person has been convicted of a crime. They serve a different function compared to civil orders and are integrated within the broader criminal justice system.

Key Features of Criminal Restraining Orders:

1. Context and Initiation: Criminal restraining orders are issued upon the conviction of an individual for an offence, such as assault or stalking. They can also be requested during bail hearings to protect victims or witnesses from further harm.

2. Nature and Purpose: The primary purpose of a criminal restraining order is to prevent further criminal behaviour by the convicted individual. These orders are punitive in nature, aiming to deter future offences and protect victims of crime.

3. Burden of Proof: In criminal cases, the burden of proof lies with the prosecution. The standard here is beyond a reasonable doubt, reflecting the seriousness of criminal convictions and their potential implications.

4. Enforcement Mechanism: Violating a criminal restraining order can lead to serious criminal penalties, including arrest and imprisonment. Law enforcement agencies play a significant role in enforcing these orders, as they are part of the criminal justice system.

5. Court Proceedings: Criminal restraining orders are typically issued within criminal courts as part of the sentencing process for individuals found guilty of crimes.

Key Differences Summarised

To encapsulate the major differences between civil and criminal restraining orders, consider the following points:

– Initiation: Civil restraining orders are sought by individuals, while criminal restraining orders arise from criminal cases initiated by the state.

– Nature and Purpose: Civil orders are primarily preventative, aiming to stop harassment or violence, while criminal orders are punitive, aimed at addressing specific criminal behaviour.

– Burden of Proof: Civil cases require proof on the balance of probabilities; criminal cases necessitate proof beyond a reasonable doubt.

– Enforcement Mechanisms: Breaches of civil orders are managed through civil penalties, while breaches of criminal orders can lead to criminal charges and law enforcement intervention.

Which is My Best Option?

Deciding between a civil and criminal restraining order largely depends on the specific circumstances of your situation and the nature of the threat you face. Here are some considerations that may guide your decision:

1. Nature of the Threat: If you are experiencing harassment or fear for your safety, a civil restraining order may provide immediate relief. These orders are designed to act quickly and effectively to protect you.

2. Criminal Behaviour: If the threats are linked to criminal behaviour or you have already reported the incidents to the authorities, a criminal restraining order may be more appropriate. These orders are connected to a criminal conviction and serve to prevent further offences.

3. Legal Support: Seeking our advice can be invaluable in determining which route to take.  We can guide you in identifying the most suitable type of restraining order based on your evidence, circumstances and available legal protections.

4. Desired Outcomes: Consider what outcomes you wish to achieve. If you are looking for quick protection without punitive measures, a civil order may be more effective. Conversely, if you seek to address and deter criminal behaviour in a significant manner, pursuing a criminal restraining order may be preferable.

5. Emotional and Safety Considerations: Ultimately, your safety and emotional well-being should guide your decision. If you feel threatened, it is paramount to act swiftly and seek the appropriate legal protections.

Conclusion

Understanding the differences between civil and criminal restraining orders in England and Wales is crucial when facing threats to your safety or wellbeing. Knowing the application process, enforcement mechanisms and the legal implications of each type can help you choose the most fitting option for your situation. Whether you decide on a civil restraining order or a criminal restraining order, seeking our advice is always recommended to ensure your rights are protected and that you receive the support you need during distressing times. By taking informed steps, you can navigate the complexities of the legal system to secure the protection you deserve.

If you are in need of a restraining order, We can help you understand your options and navigate the process successfully. At Alexander JLO we have decades of experience of dealing with family matters especially those relating to children. Why not contact us here or call on +44 (0) 207 537 7000 for a free, no obligation consultation and see what we can do for you? Kindly note that we do not deal with Legal Aid.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 9th June 2025 and is correct at the time of publication. With over forty years of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading family lawyers. His profile on the independent Review Solicitor website can be found Here