This week, the Scottish Government announced that they would introduce a Bill to the Scottish Parliament which, if enacted, will create new protective orders to keep a suspected perpetrator of domestic abuse away from the household of someone who is at risk of abuse.

At present, there are a number of measures in the criminal and civil court processes which can be used to prohibit a person suspected of domestic abuse from entering the home of the alleged victim. In the criminal process, bail conditions can be sought by the Crown and imposed by the court requiring that the accused refrain from entering or seeking to enter the home address of the complainer. In the civil process, an individual can apply to the court to seek an exclusion order to suspend the right of a spouse or civil partner to occupy the home as well as seeking non-harassment orders or interdict.

Issues can arise where criminal proceedings are not immediately instigated and bail conditions imposed by a court. In those circumstances, the only viable option open to an alleged victim of domestic abuse to take steps to prevent the accused returning to the property at present is to raise action themselves through the civil court process. Delays in obtaining such orders and costs involved in such processes can be difficult for some.

The proposed new protective measures aim to empower the police with the ability to impose short-term orders directly to keep the suspect away from the household of the person at risk of domestic abuse. Police will also be able to apply to the court for longer-term orders, thus taking the onus away from the person at risk of domestic abuse to raise action themselves.

The aim of the legislation is to change the reality for many victims of domestic abuse, particularly women and children, that the only way to escape from their abuser is to flee their home. The government believe that the perpetrator of domestic abuse should be the person who loses their home, not the victim.

The draft Bill is yet to be published, though one expects that there will be sufficient safeguards to ensure that decisions by the police are fair and capable of being reviewed by a court. Further, it is likely that such protective orders will not necessarily be suitable for all and existing civil measures may still be more appropriate in certain cases. It may be the case that such protective orders will be helpful as short-term solutions until longer-term decisions can be made about accommodation of both parties following a separation.

It is important, in any circumstances, that an individual obtain legal advice from a family law solicitor following a separation. Brodies LLP has a team of solicitors across Scotland advising exclusively on family law. Please get in touch with any member of the team should you require specialist advice.


Garry Sturrock

Senior Associate