Applying for a Protective Order
last updated January 2015
 

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Standing to Apply for Order for Protection

  • Legislation should provide that any reputable person, such as a family member, teacher, neighbor, or counselor, having knowledge of a child who appears to be in need of protection, and having reason to fear imminent harm for the child from forced and child marriage, may petition the court for an order for protection from forced and child marriage.
  • Legislation should provide that a girl or woman over the age of 10 who has reason to fear her own imminent harm from forced and child marriage also has standing to apply for an order for protection.

Evidence Needed to Obtain Order for Protection

Legislation should state that the testimony of those with standing to apply for an order for protection from forced and child marriage, in court or by sworn affidavit, is sufficient evidence on its own for the issuance of the order for protection.  No further evidence should be necessary.

Petition for Emergency Order for Protection

  • Legislation should provide that the petition for an emergency order for protection shall allege the existence of or immediate and present danger of forced and child marriage.
  • Legislation should provide that the court has jurisdiction over the parties to a matter involving forced and child marriage, notwithstanding that there is a parent in the child's household who is willing to enforce the court's order and accept services on behalf of the family.  This ensures continued protection in cases where parents may be divided on the issue of whether their daughter should be forced to enter into a forced and child marriage.   
  • Legislation should provide an emergency order for protection remedy for a female in need of protection from forced and child marriage. See: Domestic Violence. 
  • Legislation should state that there is no waiting period necessary for the emergency protection order to take effect.

The emergency order for protection should include:

  • Injunction against the forced and child marriage;   
  • Suspension of parental authority if the court determines that a parent or parents are considering authorizing the forced and child marriage of a minor child or that the child or a responsible adult has a reasonable fear that the parents are considering authorizing a forced and child marriage; and 
  • Suspension of travel authority if the court determines there is risk that the child will be taken out of the country to enter into a forced and child marriage.

Travel Restrictions

Legislation should provide authorization for courts to suspend travel authority for the child if the court determines that the parents are considering authorizing a forced and child marriage or that the child or a responsible adult has a reasonable fear that the parents are considering authorizing a forced and child marriage. 

Promising Practice:  South Australia’s Children’s Protection Act, Section 26B(1)

In South Australia, a court that suspects a child is at risk of undergoing FGM may make an order for the protection for the child. The order may prohibit the removal of the child from the state and require that the child’s passport be held by the court. 

Protection of children at risk of genital mutilation

26B. (1) If the Court is satisfied that there are reasonable grounds to suspect that a child may be at risk of female genital mutilation, the Court may make orders for the protection of the child.

Examples — The Court might for example make an order—

(a) preventing a person from taking the child from the State; or

(b) requiring that the child’s passport be held by the Court for a period specified in the order or until further order; or

(c) providing for the periodic examination of the child to ensure that the child is not subjected to female genital mutilation.  (Emphasis added). 

 

Parental Intervention and Education Program

Legislation should provide that the parent, parents, or guardian of a child in a shelter, refuge or foster care home shall attend an intervention and education program on the issue of forced and child marriage and its adverse consequences. Legislation should require that the intervention and education program be established by NGOs with experience in this field. Legislation should require that the state fund the intervention and education program.


Review of Status of Child in Shelter, Refuge or Foster Care Home

  • When an emergency order for protection is in effect and a child is residing in a shelter, refuge, or foster care home, the court shall periodically review the status of the child and of the parent or guardian regarding the issue of forced and child marriage.  (See Hearing by Court below).
  • If the court finds that it is in the best interest of the child, the court may order that the child may return home to her parents. 
  • Legislation shall provide that all other terms of the order for protection, including the injunction against travel and the injunction against forced and child marriage, shall remain in place until the court finds that it is in the best interest of the child for each injunction to be lifted.
  • Legislation should require follow-up monitoring of the child who returns to her parents to ensure that a forced and child marriage does not take place later. 
  • Legislation should provide that if the court finds that it is in the best interest of the child to remain in the shelter, refuge or foster care home, the court may continue the child’s placement in the facility.


Violation of Order for Protection

Legislation should state that violation of the emergency order for protection is a crime.


No Time Limit on Order for Protection

Legislation should state that an emergency order for protection should be left in place permanently, or until lifted by decision of the court after a hearing, or until the child attains the age of majority.