When we think about the law on domestic abuse, we often think about criminal offences and the role of the criminal courts in bringing perpetrators to justice. However, in 2023, SPICe published a blog post looking at the contribution of civil law to available protections for victims/survivors of domestic abuse. This latest blog post provides an update for 2025.
This blog post revisits important legislation, which is still unimplemented, as well discussing new proposals from the independent statutory law reform body, the Scottish Law Commission. These proposals are currently out to consultation, until 5 February 2025.
What is civil law and how can it help victims/survivors of domestic abuse?
Civil law is the branch of law which aims, among other things, to manage relationships and conflicts between people in society, through the courts if necessary. While one of its aims is to protect people, civil law does not criminalise behaviour to achieve that. It leaves this to the criminal law.
In the context of domestic abuse, as well as other forms of abuse and harassment, civil law offers a range of court orders, sometimes called civil protection orders.
These court orders aim to prevent harm and distress. They prohibit a person named in the order from doing certain things, such as repeatedly phoning or messaging someone on social media or approaching them or coming to their place of work.
An interdict and a non-harassment order are two well-known types of civil protection orders, but there are a range of others.
Notably, in 2022 to 2023, there were at least 1,200 applications for civil protection orders in family cases.
Issues with the current system
Complexity
One issue with the existing system of civil protection orders is that it is regrettably complex, with numerous pieces of legislation to be navigated.
There is a proliferation of different statutory terms – for example, matrimonial interdicts, relevant interdicts, or domestic interdicts – with the term used depending on whether the people concerned are or were spouses, civil partners, or living together as a couple. Separately, to add a further layer of complexity, if an interdict meets certain statutory criteria, the court can classify the order as a domestic abuse interdict.
The overall system clearly has the potential to be bewildering for victim/survivors and their supporters. Even legal practitioners working in the area can struggle at times to successfully navigate it. As far back as 2005, a justice committee of the Scottish Parliament recommended that the consolidation of existing civil protection orders should be explored “as a matter of urgency.”
The person at risk has to start the court action
Another key issue is that civil protection orders often must be obtained through the civil courts at the initiative of the person at risk of harm.
This court application has the potential to be expensive. Costs may be covered by legal aid, but this system is currently under significant pressure, with an acute shortage of legal aid solicitors in some parts of Scotland.
A court process initiated by the person at risk can also be very stressful. Indeed, if the civil court fails to respond appropriately to the needs of victims/survivors, it can be retraumatising to encounter a perpetrator in the court room.
Not suited to emergency protection
Finally, it has been argued in Scotland and elsewhere that an entirely court-based system of civil protection orders – with an in-built element of delay – cannot respond effectively to an emergency situation.
It is possible for a person at risk to obtain from the court an interim interdict, that is, a temporary one, pending a final decision. However, this is of little help when, as can be the case, a delay of even hours can risk serious injury or even loss of life.
Overall, the current system is better suited to medium- and long-term protection.
Domestic Abuse (Protection) (Scotland) Act 2021 – a policy innovation
Against this backdrop, Part 1 of the Domestic Abuse (Protection) (Scotland) Act 2021, not yet in force, represented something of a policy innovation in the field of civil protection orders. Part 1 ‘borrows’ the criminal law’s enforcement mechanism, the police, 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.
What happened to the 2021 Act?
In 2023, SPICe wrote in the original blog post:
“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.”
This statement holds true today.
A 2024 update to the Equalities, Human Rights and Civil Justice Committee
Towards the end of 2024, there was an update from the Scottish Government. This was to the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee on 10 December 2024.
In advance of the Committee’s session, the Committee received written submissions from key stakeholders, including from Scottish Women’s Aid and the Scottish Women’s Rights Centre. These submissions emphasised the potential importance of implementation of Part 1 of the 2021 Act (hereafter ‘Part 1’).
However, the submissions, along with the committee session itself, shed some light on the difficulties the Scottish Government has faced around implementation.
In particular, Police Scotland argued there were significant operational challenges. For example, Part 1 requires that the views of any child whose interests are relevant to the DAPO application be considered by the court. Police Scotland said it is not clear who should arrange, facilitate, or fund the process of taking those views.
Police Scotland explained in its written submission that, in March 2024, it had thought that the Scottish Government would be considering draft amendments to the legislation, which would be “disseminated to partners”. However, Police Scotland was now not clear on what legislative amendments, if any, will be made.
While not exploring the details of the ongoing work, the Scottish Government acknowledged some of the challenges for Police Scotland in the committee session. The Government suggested it would provide further information on implementation in the New Year (Official Report, col 16).
2025 and still no news
2025 has now arrived and the Scottish Government’s follow-up letter to the Committee on 14 January 2025 simply states:
“We will … continue to discuss the implementation of Part 1 with key agencies and stakeholders, with a view to providing more details on next steps.”
Disappointingly, there are no timescales set out for these next steps.
The Scottish Law Commission’s consultation
As mentioned earlier, separately, the Scottish Law Commission, the independent statutory body tasked with making recommendations for law reform to Scottish Ministers, is currently consulting on proposals relating to civil law and domestic abuse. This is important because the focus of the 2021 Act is on short-term protection. Longer-term measures may still be required.
Policy challenges associated with the 2021 Act
One concern about the current situation is that it may be somewhat challenging for the Commission to complete its domestic abuse project while the fate of Part 1 of the 2021 Act remains unknown. For there is a clear policy need to ensure that short-term and longer-term legal remedies work together as an integrated whole.
However, regardless of what happens to Part 1, the Commission’s work in this area is still very important, not least of which is the very thorough consideration it gives to the existing system.
A new civil law
In terms of possible law reforms, the Commission is proposing a specific civil law wrong (a delict) related to domestic abuse.
The Commission also wants to see a definition of abusive behaviour in the civil law. There are already relevant definitions of prohibited conduct in existing civil law statutes, such as harassment. However, in a modernising effort, the proposed definition of abusive behaviour would explicitly refer to types of abuse like tech abuse, threats to a person’s immigration status, and economic abuse (where the perpetrator controls access to resources, financial and otherwise).
In terms of legal remedies, the Commission proposes that a new civil law would be able to offer a range of remedies that would help protect not only victims/survivors but also their children, property, and pets.
Disputes about children
Notably, the Commission wants to ensure that children of families affected by domestic abuse are better protected when there are disputes about a child’s contact with a parent, and about where a child should live.
The Domestic Abuse Civil Protection and Redress Order
An interesting feature of the Commission’s project is that it wants to add another type of court order to the statute books.
This is provisionally entitled the Domestic Abuse Civil Protection and Redress Order (‘DACPRO’).
The intention is that, in one order, the court could deliver a range of different protections and redress for a victim/survivor, tailored to the circumstances of the individual case.
Accordingly, there appears to be a clear aim to consolidate and simplify the law.
A possible need for further reforms
Yet it seems that, if the Commission’s proposals were implemented, the other civil protection orders would not disappear from the law as a result.
One issue here, which the Commission itself highlights in its Discussion Paper (at para 5.155), is that civil protection orders are needed for types of abuse and harassment other than domestic abuse. This, the Commission argues, limits the capacity to repeal the existing law (see paras 5.156-5.157 of the paper on this).
However, if the existing regime of civil protection orders is to mostly remain, that arguably means that there is a need for a further, separate law reform project. This could aim to consolidate civil protection orders for all types of harm. Otherwise, the risk is the law’s overall complexity will continue to be a concern.
Responding to the consultation
As a key audience for the Commission is lawyers, its current Discussion Paper is at times a very technical read. However, SPICe is flagging this consultation and encouraging organisations and victims/survivors to respond, as this project deserves the widest policy input possible.
Helpfully, there is an Executive Summary. There is also the option to answer just one or a few consultation questions which are central to the interests of the person or body responding.
As mentioned earlier, the consultation closes very shortly, on 5 February 2025.
Sarah Harvie-Clark, Senior Researcher (Civil Law), SPICe