Orders for Protection
last updated October 2014
 

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.

Copy of Order for Protection to Law Enforcement Agency

An emergency order for protection shall be forwarded by the court administrator within 24 hours to the local law enforcement agency with jurisdiction over the residence of the child.

Each appropriate law enforcement agency shall make available to other law enforcement officers through a system of verification, information as to the existence and status of any order for protection issued.

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.

Hearing by Court

  Legislation should provide that a parent, parents or guardian may request a hearing on the emergency order for protection to determine whether the child shall continue to reside at a shelter, refuge, or foster home. 

  Legislation should provide that the hearing shall occur within 3 days of the removal of a child to a shelter, refuge, or foster home.

  Legislation should provide that hearings by the court on an emergency order for protection shall be without a jury and may be conducted in an informal manner. In all court proceedings involving a child alleged to be in need of protection, the court shall admit only evidence that would be admissible in a civil trial.

  Legislation should provide that allegations of a petition alleging a child to be in need of protection must be proved at trial by clear and convincing evidence.

Right to Participate in Proceedings

Legislation should provide that a child who is the subject of an emergency order for protection hearing, and the parents, guardian, or legal custodian of the child, have the right to participate in all proceedings on an emergency order for protection hearing.

Testimony of Child

    Legislation should provide that in the hearing for the order for protection, the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so.

    Legislation should provide that informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom.

   Legislation should provide that the court may also require counsel for any party to the proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed.

  Legislation should provide that the court may excuse the presence of the child's parent, guardian, or custodian from the room where the child is questioned. 

CASE STUDY:  United States, Minnesota

The Child Protection Statutes for the State of Minnesota in the United States provide protective provisions regarding the examination and testimony of a child within the child protection services.     

2009 Minnesota Statutes, Child Protection, Minn. Stat. 260C.163 – Hearing:

Subd. 6. Examination of child.
In any child in need of protection or services proceeding, neglected and in foster care, or termination of parental rights proceeding the court may, on its own motion or the motion of any party, take the testimony of a child witness informally when it is in the child's best interests to do so. Informal procedures that may be used by the court include taking the testimony of a child witness outside the courtroom. The court may also require counsel for any party to the proceeding to submit questions to the court before the child's testimony is taken, and to submit additional questions to the court for the witness after questioning has been completed. The court may excuse the presence of the child's parent, guardian, or custodian from the room where the child is questioned in accordance with subdivision 7.

Subd. 7. Waiving presence of child, parent.
The court may waive the presence of the minor in court at any stage of the proceedings when it is in the best interests of the minor to do so. In any proceeding, the court may temporarily excuse the presence of the parent or guardian of a minor from the hearing when it is in the best interests of the minor to do so. The attorney or guardian ad litem, if any, has the right to continue to participate in proceedings during the absence of the minor, parent, or guardian.

Child Protection Advisory Body

    Legislation should mandate the formation of a child protection advisory board consisting of experts in the field who will be able to identify problems with implementation of the law and areas in which more research is needed.

   Legislation should require that the advisory board be charged with the duty of researching customary laws, community practices, and attitudes so that evolving practices may be noted and amendments to the law may be drafted as needed.

Data Collection on Emergency Orders for Protection

    Legislation should require data collection on specific aspects of the implementation of the new law, such as number of emergency orders for protection sought, granted, denied, cancelled, or appealed. 

   Legislation should require that the data be able to disaggregated by the type of order for protection sought so as to be able to identify an order for protection on the basis of forced and child marriage, as well as the general identity of the petitioner (the individual at risk, family member, or other aware individual).

     Legislation should require that this data be kept and made available publicly.

    Legislation should require qualitative data about the effectiveness of orders for protection to be gathered on a regular basis from police, courts, child protection agencies, counseling centers, shelters, schools, and from survivors.

     Legislation should require that this data be compiled by the relevant government ministry and be published on an annual basis.