Domestic abuse or intimate partner violence is recognised as a widespread and serious problem in Scotland. It has a profound impact on the victim and their wider family and community. Domestic abuse takes many forms and is not limited to violent behaviour. We at Miller Samuel Hill Brown are committed to helping our clients respond in the most effective way available to them.
All too often, as family solicitors, we hear clients say they have spoken with the Police and have been told, 'it is a civil matter; contact a solicitor'. Matters are not that simple, however, and there are many situations that merit police involvement.
This article will discuss the different remedies available to people suffering from Domestic Abuse, within both the criminal and civil spheres in Scotland.
Domestic Abuse is defined under the criminal law within The Domestic Abuse (Scotland) Act 2018. The Act stipulates that an offence is committed if a course of behaviour is displayed that is abusive, and this behaviour would be found by a reasonable person to cause the victim to suffer physical or psychological harm. It must also be proven that the perpetrator of this behaviour either intended to cause such harm or was reckless as to whether the behaviour caused harm. Offences under this legislation are very broad and are not limited to physical or verbal altercations. It can be behaviour over time that results in a person being isolated from their family or being overly controlled (either financially or in day-to-day life).
If you feel that your partner or former partner has perpetrated the above behaviour, they may be guilty of a criminal offence. The correct avenue to take in this situation is to call Police Scotland to schedule an interview with a trained officer to discuss bringing charges against your partner or former partner. If you feel as though you are in immediate danger, call 999.
A criminal charge in respect of domestic abuse will likely lead to bail conditions being put in place, prohibiting contact between both parties until the case has finished, resulting in either a conviction or acquittal.
In recent weeks, there has been public scrutiny in relation to the sentencing of former Scotland Rugby captain Stuart Hogg, who admitted to abusing his estranged wife over a 5-year period. He was sentenced to a Community Payback Order with one year of supervision and a 5-year Non-Harassment Order. He was also fined £600 and a £40 victim surcharge. A Non-Harassment Order is in place to protect victims, and if the Order is breached by the perpetrator and contact is made, this is a separate criminal offence.
It often takes upwards of a year for a Domestic Abuse case to result in a Trial, and it can be difficult for victims to continuously be subjected to delays and continuations, often attending Court to be told the Trial has been moved to a new date. As such, many people are now turning to civil remedies to have their day in Court sooner rather than later.
Criminal proceedings may seem overwhelming, but there are support services available to guide you through the court process.
There are several ways in which the Civil Law in Scotland can protect victims. Unfortunately, the governing law in this area can be confusing and our dedicated lawyers at Miller Samuel Hill Brown are happy to assist through the whole process. There are different Protective Orders that we can assist in applying to the Court for consideration. We will address some of the Orders available to you below. Such orders as governed by the Matrimonial Homes (Family Protection) (Scotland) Act 1981, Protection from Abuse (Scotland) Act 2001, and Children (Scotland) Act 1995.
- Exclusion Orders
You can apply to the Court for an abusive partner to be removed from the family home notwithstanding their ownership or legal tenancy. There is a strict test to be satisfied before such an order is granted, namely that the Court is satisfied that it is necessary for the protection of the applicant or any child of the family in respect of any conduct from the abuser that would be injurious (mentally or physically). In practice, if this Order is granted, the Court will grant an Ancillary Order to remove the abusive spouse from the property and an interdict prohibiting them from re-entering the home without the express permission of the applicant. If required, the Court can make further, more specific orders in relation to the movement of the abuser and their access to the property. The aim of this order is to protect applicants and their children and allow their own home to be a safe space.
- Matrimonial Interdict
An
Interdict is a Court Order preventing a person from doing something that is
causing harm or distress to another person. It is open to a spouse to apply for
a Matrimonial Interdict, which prohibits the conduct of one party towards their
spouse and any child or prohibits them from entering the matrimonial home, the
workplace of the applicant and any school attended by the child. This can be
granted on an Interim basis, meaning it is not a final Court Order.
There
are a wide variety of Interdicts available, and you can specifically ask the
Court to prevent an abusive partner from doing a particular action. For
example, if you have a reasonable belief your partner is going to remove your
child from the country or move them from school without your permission, you
can apply the Court to stop this from taking place. In situations such as
these, it is important to act fast, as, in reality, it is harder (although not
impossible) to reverse situations rather than proactively take action to stop
them.
-
Power
of Arrest
Under
Section 1 of the Protection From Abuse (Scotland) Act 2001, a Power of Arrest
can be attached to a Matrimonial Interdict if the Court is satisfied that the
person the order is to be made against has been given the chance to be heard by
the Court, and that the Power of Arrest is necessary to protect the applicant
from risk from a potential breach of the Interdict. This will allow a Police
Constable to make an arrest for any breach of the order. An important point to
note in relation to Powers of Arrest is the distinguishment between spouses and
cohabitants. A cohabitant can still apply for an Exclusion Order, but they are
not automatically granted a Power of Arrest. Cohabitants must meet an
additional, higher threshold.
Although a criminal case can take a long time to be heard in Court, there are critics of the civil remedies available also. Although Interim Interdicts can be heard by a Sheriff and granted on the same day, there is still the requirement to raise Court proceedings, which itself comes with a cost and the time involved with providing a solicitor detailed instructions to allow the action to be raised at Court. It may be argued that it is not fair that the person subjected to abuse is the person required to take action to protect themselves.
The Domestic Abuse (Protection) (Scotland) Act 2021, which is yet to come into force, goes some way in tackling current practical issues with the above Orders. This Act attempts to merge the remedies available under both the criminal law and the civil law by awarding more powers to the Police to allow for emergency orders to be put in place. The Act provides that a senior Police officer can impose a Domestic Abuse Protection Notice (DAPN) on a suspected abuser without the permission of the Court. The Act also gives the Police the power to apply to the Court to grant a Domestic Abuse Protection Order (DAPO). The DAPN would protect the party until the Court has had the opportunity to fully consider the requirement for a DAPO. It appears to have the same intended aim as the role and scope of bail conditions in criminal proceedings. Only time will tell if this results in more protection and is utilised by Police Scotland in the intended way.
If you believe you require urgent assistance, please call 999. Connecting with Police Scotland can be a crucial first step in addressing any criminal behaviours you may be facing. Additionally, a family law solicitor can offer the support you need to secure civil protection, ensuring a safer and more empowering environment for yourself and your loved ones.
We recognise that seeking help can feel daunting, but it is a vital step toward regaining control and fostering safety in challenging times. If you would like to discuss options for civil remedies, please reach out to our team at 0141 221 1919 or This email address is being protected from spambots. You need JavaScript enabled to view it.. We understand the complexities of domestic abuse, genuinely care about your situation, and are committed to helping you quickly identify all available ways to protect yourself and your family.
