Civil-restraint order applicants now face costs

Applicants for civil-restraint orders are increasingly facing costs consequences if their applications fail, Keith Walsh SC has told the Law Society Family & Child Law Conference (25 September).

The figure currently being awarded in some courts is around €3,000, he said, which could represent a significant sum for many applicants.

“That obviously has a fairly chilling effect on those people for whom that might be a significant amount of money, which is probably 90% of the population,” Walsh said. 

“This creates its own issues,” he said.

The development comes as the courts deal with a sharp increase in applications under section 28 of the Criminal Law Miscellaneous Provisions Act 2023.

More than 1,800 orders were granted in 2025, the first full year of operation, while 13 cases were listed in Dublin on one day, with a number expected to take at least 45 minutes.

Walsh said the volume of applications was slowing down the District Court, particularly outside Dublin, where civil-restraint order cases could compete for court time with family and other proceedings.

No significant additional resources had been allocated to the District Court to deal with the new workload, he added.

‘Unwelcome conduct’

Civil-restraint orders were introduced to allow victims of stalking and other “unwelcome conduct” to obtain protection through the civil courts.

“They're incredibly wide orders in that they really can greatly restrict people's liberty and ability to carry out their normal day-to-day functions,” Walsh said.

Unlike under the Domestic Violence Act, there is no requirement for a pre-existing relationship or other connection between the applicant and respondent.

The court must have reasonable grounds for believing that the respondent has engaged in relevant conduct and that an order is necessary and proportionate to protect the applicant's safety and welfare.

Walsh noted that civil restraint orders required a “lower standard of proof” than criminal cases. 

He said: “In a lot of cases, my concern would be that the guards are simply passing on matters that could potentially be criminal and putting the onus on people for the civil prosecution instead.”

That question was particularly relevant where the conduct potentially amounted to stalking or harassment, he said.

The civil route also transferred the risk and cost of bringing proceedings on to the applicant.

The orders themselves can be wide-ranging, including prohibiting violence or threats, following or communicating with a person, or engaging in other specified relevant conduct.

Distress

“It's a relatively low bar,” Walsh explained. “It's either fear of violence, or it will cause serious alarm or distress.”

However, he continued, it must also have the second element of “substantial adverse impact on their usual day-to-day activities”.

The orders can last for up to five years and can be made ex parte.

For practitioners, the ex parte procedure can have a significant practical advantage.

An ex parte application must return to court within eight days, whereas a straightforward application for a section 28 order could take months to be heard.

However, he pointed out, this also meant that such applications could move ahead of other cases.

Civil-restraint orders can also have a role in family proceedings.

“These cases are relatively easy for family lawyers to deal with because the framework for the section 28 order and the procedure mirrors exactly the Domestic Violence Act 2018 procedure”.

Amendments to the Domestic Violence Act allow a court hearing a domestic violence application to simultaneously grant a section 28 civil-restraining order, even if it was not officially applied for beforehand.

Walsh said that, although he had not seen it done often, one of the “very handy things” introduced with section 28 orders was that, when applying for domestic-violence relief, “in theory, you can also deal with matters of access, custody, and maintenance”.

He stressed, however, that the orders were not a replacement for domestic-violence orders and that a judge would generally expect a practitioner to consider the Domestic Violence Act first in a family-law case.

There are also practical issues around representation.

Civil legal aid is available for civil-restraint orders, “but unlike domestic violence applications, you won't get civil legal aid on the private-practitioner scheme because there is no private-practitioner scheme,” Walsh said.

Applicants therefore must go through the law-centre system, where waiting lists “are huge”.

Walsh said the breadth of the legislation had contributed to applications arising from neighbour disputes and disputes between relatives or in-laws.

Vexatious applications

He suggested that the courts' growing concern about the number of applications, particularly vexatious ones, might lead to the number falling as the implications of costs became clearer.

He also suggested that the breadth of the orders meant that it was “only a matter of time” before there was a constitutional challenge, particularly considering the restrictions they could place on individuals.