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Domestic abuse – a civil law perspective 

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This blog post revisits the Domestic Abuse (Protection) (Scotland) Act 2021, an important piece of as yet unimplemented legislation from the end of Session 5 of the Scottish Parliament. It also explores the potential need for wider-ranging reforms in this area and highlights an interesting law reform project by the Scottish Law Commission.  

Note that this blog post is the second one from SPICe in recent weeks on government legislation from Session 5. The earlier post, from 27 September, considers the Children (Scotland) Act 2020

Domestic abuse and civil law 

Before exploring the specifics of the Domestic Abuse (Protection) (Scotland) Act 2021, it is probably helpful to provide an overview of the law and policy in this area more generally. 

Often when we think about domestic abuse, or other forms of harassment or harm, the focus is on criminal offences. The high-profile Domestic Abuse (Scotland) Act 2018, which created a specific criminal offence relating to domestic abuse, is a good example of this. 

However, it is important not to lose sight of the fact that the Scottish response to domestic abuse, and other related harms, is a genuine legal ‘hybrid.’ Civil law also offers a range of legal remedies which aim to benefit vulnerable individuals.  

Broadly, civil law is the branch of law which aims to manage relationships in society, through the courts if necessary. While one of the aims of civil law is to protect people, it does not criminalise behaviour to achieve that aim. It leaves that to the criminal law

Civil protection orders 

There are a range of civil protection orders available through the courts which are designed to help people at risk. 

These court orders aim to prevent harm and distress. They stop a person named in the order from doing certain things, such as repeatedly phoning or texting someone or coming to their place of work. 

Interdicts, of which there are various types, and non-harassment orders are the best-known examples of civil protection orders, but there are other types as well

The ‘burden of proof’ 

To establish whether a criminal offence has been committed, the criminal law requires proof to be ‘beyond reasonable doubt’, which can be a high bar to clear in practice.  

On the other hand, a court applying civil law will make a civil protection order if satisfied ‘on the balance of probabilities’ this is appropriate, a lower bar for a person at risk to clear.  

Issues with the current system

However, some stakeholders think the current civil law system has flaws.  

One issue is that it is often the person at risk who must apply to the court for the order rather than a public body doing it on the applicant’s behalf. Such an application can be stressful. There are also potential legal costs unless these are entirely met by legal aid.  

Court cases also involve an element of delay. This is significant because the UK is also party to an international treaty, usually referred to as the Istanbul Convention. The treaty relates to violence against women, including domestic violence. Article 52 of that Convention says countries must ensure protection to victims of domestic violence via a short-term protective order, suitable for situations of “immediate danger.”  

The argument which has been made in Scotland and elsewhere is that, if the person at risk must wait for the relevant order, even for 24 hours, this may be too long in cases of immediate danger. 

The Domestic Abuse (Protection) (Scotland) Act 2021 

For those with concerns about the existing system, the Scottish Government Bill which became the Domestic Abuse (Protection) (Scotland) Act 2021 (‘the 2021 Act’) was an interesting development.  

Part 1 of the 2021 Act introduces two new short-term civil protection orders. In a policy innovation, Part 1 ‘borrows’ the criminal law’s enforcement mechanism, namely using the police to enforce the law. The aim is to enable urgent action, not led by the person at risk.  

Specifically, Part 1: 

  • empowers a senior police officer to impose a Domestic Abuse Protection Notice (DAPN) on a suspected perpetrator of abuse, without resort to the courts 
  • gives the civil court, on application by the police, power to grant a Domestic Abuse Protection Order (DAPO) in relation to a perpetrator of abuse.  

Any DAPN lasts until the civil court reaches a decision about a DAPO. The DAPO can last up to three months in total.

When will the 2021 Act be implemented? 

The 2021 Act is a potentially useful piece of legislation, but at this stage there is quite a significant catch – Part 1 of the Act is not in force, and it is not known when it will be brought into force by the Scottish Government.  

Last month, in a written response to a Parliamentary Question, the Scottish Government highlighted ongoing work on Part 1 but provided no target implementation date associated with it. The Government commented: 

“Together the detail is being worked through to consider how a number of aspects of the legislation can best be implemented including how the views of children can be captured in a way that does not cause additional harm or trauma.” 

On the other hand, the Scottish Government hopes to implement Part 2 of the 2021 Act in early 2024. Part 2, which is not the focus of this blog post, gives a new power to social landlords to end a tenancy when there has been domestic abuse. 

The need for further reforms 

The Scottish Government did not intend DAPOs under the 2021 Act to replace the longer-term civil protection orders currently available, such as interdicts and non-harassment orders. These will cover the period beyond which a DAPO might apply. 

The Government’s approach is important because there have been suggestions for a long time, from legal professionals and others, that this system of longer-term court orders needs an overhaul. The system has evolved piecemeal through successive reforms over a period of nearly thirty years. The result is a very complex system. It is arguably difficult for people at risk, and even the professionals advising or supporting them, to navigate.  

Another key issue is the scope of some of the available orders. Interdicts and non-harassment orders can only impose restrictions, not require people to do something. This means, for example, that, unlike a DAPN or DAPO, they cannot empower the removal of a perpetrator from a home they own or have a right to occupy. 

An interesting new law reform project 

The Scottish Law Commission is the independent law reform body which makes recommendations for reform to the Scottish Government. One of its current projects is a review of the civil law as it applies to domestic abuse. This will look at available civil protection orders. Ultimately, the Commission might make recommendations to remedy any flaws associated with these orders it identifies. 

The Commission is an important body in terms of keeping Scotland’s legal system up to date. Yet its consultations often don’t attract the political interest, media coverage or response rate associated with government consultations on criminal law issues. Nevertheless, here there is an opportunity for vulnerable people, as well as their advisors and supporters, to respond to a future consultation and help shape any civil law reform proposals.  

We don’t have an expected date for that consultation yet, but SPICe will be watching developments with interest. 

Sarah Harvie-Clark, Senior Researcher (Civil Law), SPICe