Other Key Provisions on Post-Hearing Orders for Protection

Last updated May 2010

Legislation on post-hearing orders for protection should:

·      Not allow officials to remove complainant/survivor from her home against her will.

·      Not allow for mutual orders for protection. A mutual OFP implies that both parties are responsible for the violence and it makes both parties liable for violations of the order. Advocates found that police faced with a mutual order often did not determine who was the primary aggressor and consequently either failed to enforce the order or arrested both parties. When a mutual OFP was enforced against a complainant/survivor, the consequences were dire:  the complainant/survivor might lose child custody or her employment, or be evicted by a landlord. See: The Toolkit to End Violence Against Women, Ch. 3; StopVAW, The Advocates for Human Rights.

·      State that the offender may not obtain a mutual order for protection against the complainant/survivor for economic violence because she or her family has failed to meet the demands for dowry (where order for protection laws include “economic violence” in domestic violence definitions).

            See: UN Handbook 3.10.8.1; and Family Violence:  A Model State Code, Sec 310.

·      Not allow officials to cite complainant/survivors for “provocative behavior.”  See: UN Handbook 3.10.8.1.

·      Orders for protection should be effective and enforceable throughout a country.

Promising practices: The law of Philippines has a provision which mandates that orders for protection are enforceable throughout the nation. The law of India likewise contains a provision that states that an order for protection is enforceable throughout the country (Article 27(2)).

Orders for protection should be part of a national registration system so that police and law enforcement personnel can quickly and efficiently determine the existence of the order. See: Report of the Intergovernmental Expert Group Meeting to review and update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Bangkok, 23-25 March 2009. IV, 16 (h)

Legislation should not contain any references to mandatory treatment for rehabilitation of complainant/survivors.  Rather, legislation should provide for counseling services for a complainant/survivor if she determines she needs them. Many domestic violence complainant/survivors do not need psychiatric counseling or rehabilitative services, with the exception of employment services.  Rehabilitation services which are offered to victims are provided only at the request of the victim.  These services should never be compulsory or imposed on victims by government agencies or officials.  Counseling should not be a requirement in domestic violence cases involving child custody. Laws should not use counseling to mediate or resolve the matter between the parties. Laws should not make counseling a precondition to obtaining an order for protection remedy from the court.

Legislation should provide that a complainant/survivor may seek a protection order without the aid of an attorney. Laws should also address the role of advocates. See: Section on Advocates.

Promising Practice: Laws that define the role of advocates and provide complainant/survivors with advocate assistance and access to a standardized application form will facilitate her access to protection orders. India’s Protection of Women from Domestic Violence Rules, 2006 include Form II, a template application form to the magistrate, which allows the applicant to check the forms of relief she is seeking. Form I is a template domestic incident report form, which provides sections for documenting different forms of domestic violence, as well as the date, place and time; perpetrator of the domestic violence; types of violence and other remarks. A section on dowry-related harassment is included, requesting details on demands for dowry made, other dowry details and allows for the applicant to append a description of dowry items and stridhan to the form. Standardized forms such as these that prompt the applicant on details of the violence, including background on dowry, will help facilitate the protection order process.

Child custody provisions in orders for protection

Legislation should include a provision that grants temporary custody of minor children to the non-violent parent. For example, the law of Bulgaria  allows the court to do the following:

temporarily relocating the residence of the child with the parent who is the victim or with the parent who has not carried out the violent act as stake, on such terms and conditions and for such a period as is specified by the court, provided that this is not inconsistent with the best interests of the child. h 1, S. 5 (1) 4

The legislation should contain a presumption that visitation by the violent parent should be supervised, and should not occur if it is against the will of the child.  See: law of Spain; UN Handbook 3.10.8.2, and 3.13; and OFPs and Family Law Issues, StopVAW, The Advocates for Human Rights.

For example, the law of Sierra Leone states that a protection order may contain:

(f)    a provision temporarily-

(i)             forbidding contact between the respondent and any child of the applicant;

(ii)           specifying that contact between the respondent and a child of the applicant, must take place only in the presence and under the supervision of a social worker or a family member designated by the court for that purpose; or

(iii)          allowing such contact only under specified conditions designed to ensure the safety of the applicant, any child who may be affected, and any other family members;

            if the court is satisfied that that is reasonably necessary for the safety of the child

            in question; Part III 15 (f)

See: law of Namibia.

Drafters should enact separate laws on child abuse rather than attempt to address it within the domestic violence legislative framework.  See United Nations Economic and Social Council, Intergovernmental Expert Group Meeting to Review and Update the 1997 Model Strategies and Practical Measures on the Elimination of Violence Against Women in the Field of Crime Prevention and Criminal Justice, Report of the Intergovernmental Expert Group Meeting to review and update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Bangkok, 23-25 March 2009, II 14 (d).