On 5th October 2020, the Scottish Government announced the publication of the hotly anticipated Domestic Abuse (Protection) (Scotland) Bill, following extensive consultation.
The ethos of the Bill is to extend protections available to those at risk of domestic abuse. The Bill, inter alia, seeks in part one to introduce 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 intended legislation is aimed at spouses, civil partners, those living together as if they were spouses or civil partners, ex-partners and those "in an intimate personal relationship with each other."
Section 4 of the Bill seeks to introduce a 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 person B, that a domestic abuse protection order is necessary for the protection of the individual at risk (person B) from person A's abusive behaviour 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 take into account any representations made by person A, the views of person B and the welfare of any child deemed by the officer to be relevant. A domestic abuse protection notice can be made without the consent of person B.
Such a notice can do one or more of the following things:- (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 last of these powers is a particularly unusual one in terms of our existing law, given that this could interfere 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 intended 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 and that such an order is necessary to protect person B from abusive behaviour by person A. The sheriff has to consider the same factors as the senior officer making a domestic abuse protection notice and can impose the same conditions as a domestic abuse protection notice. 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. Given that such an order can involve serious deprivation of a person's rights in relation to their place of residence and/or their child, it is curious to note that the test in the legislation is whether on the "balance of convenience" it is "just" to do so. If this legislation is enacted, it will be interesting to note the evidential requirements expected by courts before granting such an important interim order.
Part two of the Bill, if passed, will allow social landlords to end or transfer a tenancy of a perpetrator of domestic abuse to prevent a victim becoming homeless and enabling them to remain in the family home.
The Bill will now make its way through the various stages in the Scottish Parliament. We will be keeping a close eye on the Bill's progress over the coming months.
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Senior Associate
