Scottish Women’s Aid

1. Scottish Women’s Aid Domestic Abuse and the Law Louise Johnson SYLA November 2013

2. Types of interdict • Prevent a person doing anything as set out in the Order from the court e.g. • Abusive or threatening behaviour towards the woman • Approaching person in particular area- children’s school, woman’s workplace • Keeping away from the woman’s house, in certain situations, or another residence • Matrimonial Homes Act Interdicts ( as amended by the Family Law (Scotland) Act 2006) • Matrimonial Interdict s.14 - available only to spouse s • Domestic Interdicts- s.18A- available only to cohabiting couples ( same or opposite sex) • Civil Partnership Act 2004- section 113 – “relevant interdict” • Common law interdicts- not derived from legislation- for women not living with their partner

3. Powers of Arrest under the Protection from Abuse (Scotland ) Act 2001 • Any person who is applying for, or who has obtained, an interdict for the purpose of protection against abuse may apply to the court for a power of arrest to be attached to the interdict under this Act • Definition of “abuse“ ” and “conduct” • Power of arrest is only effective once served on the abuser & the police • Means that the police may detain the person breaching the interdict with the power of arrest attached without a warrant • What happens after the police arrest the person in breach? • How long does a power of arrest last?

4. “Domestic Abuse” interdicts • Domestic Abuse (Scotland) Act 2011- section 2- applies to interdicts made on or after 20th July 2011 • Act provides that where an interdict has been “determined” by the court to be a “domestic abuse interdict” andthe interdict has a power of arrest attached, which is still in effect, then breach of that domestic abuse interdict will be a criminal offence. • How does the court determine that an interdict is a “domestic abuse interdict?” • Process • Penalties upon conviction for breach • Summary procedure = Up to 12 months imprisonment, or a fine, or both • Conviction on indictment = Up to 5 years imprisonment, or a fine, or both. • What happens if the court does not “determine” that the interdict is a “domestic abuse interdict?”

5. Non harassment orders- Protection from Harassment Act 1997 • Section 8 - Granted in a civil court - available to anyone • If specifically sought in relation to domestic abuse, now no need to demonstrate “course of conduct”–section 8A, introduced by the Domestic Abuse (Scotland) Act 2011, section 1- only one incident of harassing behaviour would be required • What does an NHO do? • Penalties upon conviction for breach • Summary procedure = Up to 6 months imprisonment, or a fine, or both • Conviction on indictment = Up to 5 years imprisonment, or a fine, or both.

6. Staying in the home and keeping the abuser out Exclusion Orders • Matrimonial Homes (Family Protection) (Scotland) Act 1981-(s.4) • Civil Partnership Act 2004 (s.104) Occupancy rights for spouses or civil partners • Sole or joint tenant or owner = occupancy rights & entitled • Not sole/joint tenant or owner = occupancy rights but non –entitled • Need an Exclusion Order to keep spouse/civil partner out of home • How long do they last? Occupancy rights for cohabs • Sole/ joint tenant or owner = occupancy rights • Not sole/joint tenant or owner = no occupancy rights • If the other cohabiting partner does not have occupancy rights, do not need an Exclusion Order to them out of home • BUT- Note- the other party can apply to the court for O Rights!

7. Forced Marriage Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 Enables court to make a FMPO for the purposes of “protecting a person from being forced, or from any attempt to force the person, into a marriage, or protecting a person who has been forced into a marriage” Court can also issue a Declarator of Nullity