MSPs voted unanimously to pass the Domestic Abuse (Protection) (Scotland) Bill at stage 3 on Wednesday 17th March 2021. It strengthens the remedies available to protect those at risk of domestic abuse.
The Bill, amongst other things, introduces two new measures into Scots law: a domestic abuse protection notice and a domestic abuse protection order.
The Bill begins by defining those entitled to the proposed legal protections, the meaning of abusive behaviour and what constitutes abusive behaviour. The legislation will protect partners (whether spouses, civil partners or those in an "intimate personal relationship with each other") and ex-partners who live together some or all of the time.
Section 4 of the Bill introduces the power for a "senior constable" (holding the rank of Inspector or above) to make a domestic abuse protection notice in respect of an individual who has engaged in abusive behaviour towards a partner or ex-partner. The senior officer must be satisfied that the individual (person A) who is to be the subject of the notice has engaged in abusive behaviour towards the individual at risk from person A's abusive behaviour (person B), that a domestic abuse protection order is necessary for the protection person B from person A's abusive behaviour, that there is a risk of person A engaging in further behaviour of person B immediately (i.e. before a sheriff can make an interim domestic abuse protection order or domestic abuse protection order) and that the notice is required in the meantime for such protection before the court can consider whether or not to make an order. The senior officer, when deciding whether to make a notice, must establish whether person A and person B have any views in relation to the notice which they wish to be taken into account. They must consider any such views expressed and the welfare of any child deemed by the officer to be relevant when making their decision in relation to a domestic abuse protection notice. It ought to be noted that a domestic abuse protection notice can be made without the consent of person B, which empowers the state to protect those who may not be in a position to actively seek such protection.
A domestic abuse protection notice can do one or more of the following s:- (a) require person A to leave the home of person B (whether or not it is also the home of person A), (b) require person A to surrender keys to that home, (c) prohibit person A from entering that home, (d) prohibit person A from coming within such distance of that home as is specified in the notice, (e) prohibit person A from excluding person B from that home, (f) prohibit person A from approaching or contacting, or attempting to approach or contact, person B and/or (g) prohibit person A from approaching or contacting, or attempting to approach or contact, any child usually residing with person B.
The latter is a particularly novel power when considering the existing law, given that it interferes in an unprecedented way with person A's parental responsibilities and rights in relation to a child.
The notice, which must be in writing, takes effect once delivered personally to person A by a constable. A breach of the notice will be a criminal offence. Once a notice has been served, there must be a court hearing before a sheriff at which an action for a domestic abuse protection order is presented on behalf of the Chief Constable before the end of the next court day. Person A will be given notice of the hearing and can participate in proceedings. The court can permit person B to be a party to the proceedings. The notice ceases to have effect if the sheriff makes a domestic abuse protection order or interim domestic abuse protection order or otherwise when the hearing ends.
Section 8 of the Bill discusses the court process involved in the making of the second power introduced by the Bill, a domestic abuse protection order. Only the Chief Constable is permitted to seek such an order, which is surprising given the consultation terms and responses regarding other organisations e.g. Women's Aid that may have an interest in seeking such orders on behalf of victims of domestic abuse. The Chief Constable is obliged to apply for an order where a domestic abuse protection notice has been made and has discretion to apply for an order in other cases. The sheriff may only make the order if satisfied that person A has engaged in behaviour which is abusive of person B, that there is an immediate or imminent risk of person A engaging in further behaviour which is abuse of person B and that such an order is necessary to protect person B from abusive behaviour by person A. The sheriff can make such an order without the consent of person B. The sheriff must give the Chief Constable, person A and person B the opportunity to make representations about the application. When determining the application, the sheriff must take account of the views of person B, including whether or not B wishes an order to be made and any reasons for that, representations by person A and representations by the chief constable. The sheriff can impose the same conditions as outlined above for domestic abuse protection notices. If granted, a domestic abuse protection order can last up to two months, which can be extended by the court for one further month if deemed necessary. The sheriff can make an interim order whilst a decision on a "full" order is pending, which can last up to three weeks. The standard of proof required is whether on the "balance of convenience" it is "just" to do so. This is arguably a much lower threshold when compared to existing civil remedies, such as exclusion orders.
Part two of the Bill allows social landlords to end or transfer a tenancy of a perpetrator of domestic abuse to prevent a victim becoming homeless and enable the victim to remain in the family home.
The Bill, once enacted and in force, will build on existing legal measures in Scots law to target those who engage in domestic abuse and protect those at risk of domestic abuse. It is hoped that it will alleviate the pressure on those at risk of domestic abuse who may feel the need to flee their home and, instead, shift the focus on removing the suspected perpetrator from the shared home.
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