Putting victim/survivors at the heart of civil law protections

As part of the Scottish Law Commission’s review of the legal protection available for victim/survivors of domestic abuse in the civil context, the Commission has recently published its report. Share your views by 22 January 2025.

With an aim to put victim/survivors at the heart of civil law protections, please do get involved.

As part of the Scottish Law Commission’s review of the legal protection available for victim/survivors of domestic abuse in the civil context, the Commission has recently published its Discussion Paper on Civil Remedies for Domestic Abuse. The paper sets out a wide range of consultation questions, and seeks views on options for reform of the law. The Commission is keen to hear from anyone with an interest by 22nd January 2025.

Background to the discussion paper

Police Scotland statistics show that domestic abuse is a major – and gendered – problem in Scotland, with more than 61,934 incidents recorded in the year 2022-23 (81% of which involved a female victim/survivor and a male suspected perpetrator, where gender information was recorded). While criminal law can tackle many aspects of domestic abuse, civil protection orders are a crucial tool in helping to protect victim/survivors.

From the outset of the Commission’s work on this project, it has been clear that the current law in this area in Scotland is in real need of reform. Stakeholders the Commission has spoken to have highlighted many criticisms in relation to the current civil remedies available for domestic abuse, including that:

• The legislation is unnecessarily complex and fragmented, spread over a number of Acts.
• There are multiple different protective remedies available, all contained in different statutes and with different threshold tests (and there are concerns that some of the statutory tests are too high – for example, for exclusion orders and powers of arrest).
• Even once a victim/survivor secures a civil protection order, there can be issues about enforcement; a protection order that does not require the victim/survivor to take further steps to enforce (such as raising an action for breach of that order) might be more effective.
• There is insufficient recognition of the impact of domestic abuse on children.
• There is a lack of joined-up thinking and communication between the civil and criminal courts dealing with family law actions.
• The terminology is confusing and inconsistent.
• The remedies are not working as well as they should.

It is evident that the current law fails to meet the needs of victim/survivors seeking civil protection from their abuser. Consequently, the discussion paper proposes a framework of reform to improve and strengthen the existing civil remedies available for domestic abuse, and to introduce a new regime specifically tailored to the harms suffered by victim/survivors of domestic abuse and the protection they need.

The way forward: reform of the existing law

Chapter 3 of the discussion paper seeks consultees’ views on possible options for reform of the law of occupancy rights in terms of the much-amended Matrimonial Homes (Family Protection) (Scotland) Act 1981. Questions include whether it is problematic that the current law requires cohabitants to apply to court for occupancy rights, unlike spouses and civil partners; whether the duration of an order for occupancy rights for cohabitants should be extended from six months to 12 months (subject to court discretion); and whether the court should be required to consider making an exclusion order suspending a person’s occupancy rights, where that person is convicted of a domestic abuse offence.

Chapter 3 seeks details from consultees of any case(s) where an entitled party, who is the owner or tenant, has attempted to sell the house or transfer the tenancy, in order to defeat the occupancy rights of a non-entitled party; or where one party has refused to consent to the other party giving notice to leave. We ask if consultees think reform is required to prevent this. We also seek views on the introduction of a statutory definition of ‘dealings’ in respect of the home (which are legal acts in respect of the home, carried out by an entitled party, which may adversely affect occupancy rights of the other party). Given any reforms to occupancy rights would apply beyond the context of domestic abuse, the Commission is particularly keen to hear from property lawyers in relation to the proposals contained within this chapter of the paper.

Chapter 4 is split into three parts. In Part 1, we consider the existing civil remedies for domestic abuse in more detail, identifying the problems faced by litigants seeking exclusion orders, interdicts, powers of arrest and domestic abuse determinations. At present, powers of arrest lapse after three years, regardless of the length of the interdict: we ask whether this should be reformed so that the power of arrest would be tied to the duration of the interdict. We also seek views on the level of the statutory test that has to be met for some of these orders, the difference in treatment of cohabitants in comparison with spouses and civil partners, and the consistency and complexity of the terminology used in the various pieces of legislation, and put forward proposals for reform of these aspects of the law. In Part 2, we consider non-harassment orders and other remedies under the Protection from Harassment Act 1997, while Part 3 discusses other relevant civil and criminal legislation that provide remedies relating to domestic abuse.

A new delict of domestic abuse

Beyond suggesting reform to the existing civil remedies for domestic abuse, Chapter 5 of the discussion paper, crucially, proposes the introduction of a new ‘purpose-built’ scheme, which recognises domestic abuse as wrongful conduct in the form of a civil wrong, a delict. It also puts forward (for the first time in the civil context) a proposed statutory definition of domestic abuse, based on the definition of abusive behaviour in the Domestic Abuse (Scotland) Act 2018. We also ask whether there is benefit in including some additional factors in this definition: tech abuse, immigration abuse and economic abuse.

This new law would be accompanied by a suite of remedies, available individually or in combination, and provisionally called a DACPRO: a Domestic Abuse Civil Protection and Redress Order, where domestic abuse is established in the civil court. Remedies here include a protective order to prevent future wrongful conduct; a redress order, to compensate the victim/survivor for harm suffered and any loss of or damage to property caused by the abusive behaviour; a civil barring order excluding the perpetrator from the home for a specified period; orders for the return of documents and property; and an order regulating the care of and responsibility for a pet, including its delivery to a named person for safety. We also propose enabling a victim/survivor to seek these remedies against associates of the abuser who carry out domestic abuse on behalf of or with the encouragement of the principal perpetrator, and we seek views on whether third parties should be able to seek a DACPRO on a victim/survivor’s behalf.

In Chapter 6, we consider who is deemed to be a victim/survivor of domestic abuse and evaluate if that category of person should be extended beyond intimate partners/ex-partners to include family members. This chapter also discusses intersectionality and the compounding risk of domestic abuse for victim/survivors who belong to one or more marginalised group, and explores the particular issues raised by honour-based abuse.

Chapter 7 of the paper considers the impact on children of domestic abuse that takes place between their parents, as well as in their own relationships, and the degree to which domestic abuse is considered by the court in contact and residence decisions. Some suggested reforms are proposed, including that children should be recognised as ‘adjoined victim/survivors’ where they have a family connection with the abuser and/or the victim/survivor. This would help ensure they can seek the new remedies proposed, or an existing civil protection order, in their own name. We also put forward suggested reforms to the Children (Scotland) Act 1995, to ensure that courts consider the impact of domestic abuse in all Section 11 order decisions.

Access to justice issues are considered in Chapter 8, in particular whether special measures should be more widely available to victim/survivors of domestic abuse in civil courts; and the lack of integration between the criminal justice system and the civil justice system in cases involving domestic abuse. Suggested reforms are again proposed. Other issues, such as the training of solicitors and the judiciary in trauma informed practice, legal aid and the difficulties experienced by victim/survivors in rural and island communities, are explored.

Responses invited

The Scottish Law Commission welcomes responses to the discussion paper from anyone with an interest in this area, to ensure our eventual recommendations for law reform are informed by the profession and by those working in the field of domestic abuse. There are 58 questions across the 10 chapters in the paper, but there is no requirement to answer all of them: consultees should feel free to respond to as many of the questions as they feel able to. The deadline for responses is 22nd January 2025.

Details of how to respond to the consultation are available on the inside cover of the discussion paper and on the Aspects of Family Law project page on the Scottish Law Commission website.

Written by Professor Gillian Black, Commissioner, Scottish Law Commission, and Natalie Fowler, Legal Assistant