Scotland pledges more protection for victims of domestic abuse

The Domestic Abuse (Protection) (Scotland) Bill is progressing through Parliament and has recently been published. The Bill aims to strengthen the protection available to victims of domestic abuse by increasing police powers to remove suspected abusers from victims’ homes and prevent them from subsequently re-entering the property.

The coronavirus outbreak and subsequent lockdown have had a stark effect on the number of domestic abuse cases being reported. Cases reported have also increased markedly since the introduction of the Domestic Abuse (Scotland) Act 2018 – Jacqueline Stroud and Marika Franceschi previously reported on the groundbreaking nature of that legislation. The 2018 Act now includes emotional and psychological abuse, along with coercive and controlling behaviour within the definition of the offence of domestic abuse.

However, the new Domestic Abuse (Protection) (Scotland) Bill goes a step further. It gives a senior constable the power to remove individuals from their homes without the case even being heard in court. The legislation as it stands will apply to people over 16 who are spouses, civil partners, living together as spouses or civil partners, or in an intimate personal relationship with each other. Under Section 4 of the Bill, a senior constable can make a domestic abuse protection notice against person A if they have reasonable grounds to believe:

  • That person A has been abusive to person B.
  • A domestic abuse protection order is necessary to protect person B.
  • Or it is necessary in order to protect person B from abuse by person A before an interim domestic abuse protection order or a domestic abuse protection order.

The protection offered by a domestic abuse protection notice can be extensive, and it can require individuals to do one or more of the following:

  • To require person A to leave the home of person B (whether or not it is also the home of person A).
  • To require person A to surrender keys to that home.
  • To prohibit person A from entering that home.
  • To prohibit person A from coming within such distance of that home as is specified in the notice.
  • To prohibit person A from excluding person B from that home.
  • To prohibit person A from approaching or contacting, or attempting to approach or contact, person B.
  • To prohibit person A from approaching or contacting, or attempting to approach or contact, any child usually residing with person B.

It is of particular note that the Bill provides the police with power to interfere with an individual’s parental rights and responsibilities without the issue being decided in a court. If Person A fails to comply with the terms of the notice, they are committing a criminal offence. Once a domestic abuse protection notice has been issued, an application for a domestic abuse protection order is made to the sheriff on the next court day. Once a hearing has taken place, the domestic abuse notice will no longer have effect, and the ruling made in the hearing will take precedence.

The domestic abuse protection order may impose such requirements and prohibitions as the sheriff considers necessary for the purpose of protecting person B from abusive behaviour by person A. The protection offered can include, but is not limited to, the list of potential requirements that can be imposed with a domestic abuse protection notice. Importantly, the victim (person B)’s consent is not required for a domestic abuse protection order to be made. The Bill as drafted also affords individuals an opportunity to apply to court to have the order extended, varied, or discharged.

Furthermore, Part 2 of the Bill as drafted provides that tenants of social housing can be evicted from their homes on the grounds that they have engaged in abusive behaviour to their partner or ex-partner. It remains to be seen how this will operate in practice.

We will be watching the progress this Bill makes in Parliament.

Family Law at MacRoberts

MacRoberts' specialist family lawyers advise on all aspects of family law, working collaboratively with our clients to help them find the best possible outcome.

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