Know your protection

On 20 July 2011 the Domestic Abuse (Scotland) Act 2011 became law. For those of us who practise in the area of domestic abuse, it was a welcome addition to the protective orders available to those fleeing domestic abuse. Despite this, it has become apparent since this time that many practitioners are unaware of the changes introduced by the Act, and hence, the additional remedies available to clients seeking advice in this very sensitive and challenging area. It is imperative that we are all aware of the full range of protective orders available via our civil courts, including the new provisions introduced by the 2011 Act.

Protective orders for those fleeing domestic abuse take the form of exclusion orders and interdicts in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (for cases where the parties are married or cohabitants; for civil partners mirror provisions are contained in the Civil Partnership Act 2004), non-harassment orders, lawburrows, common law interdicts and powers of arrest in terms of the Protection from Abuse (Scotland) Act 2001.

Additional protection

The 2011 Act introduced a further protective measure and the concept of a “domestic abuse interdict”. Section 2 provides that, where a determination has been made under s 3(1) that an interdict granted by a court is a “domestic abuse interdict” and that determination is in effect, and where a power of arrest has been attached to such an interdict in terms of the 2001 Act and the power of arrest is also in effect, a person who breaches such an interdict will be guilty of an offence. “Interdict” includes interim interdict.

It therefore follows that anyone who breaches such an order will be subject to criminal proceedings for breach of a domestic abuse interdict. If found guilty of such a breach on a summary basis, the penalties are imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum, or both. Where the conviction is on indictment, the penalties are imprisonment for a term not exceeding five years or a fine, or both of these penalties.

This is an important change to the pre-2011 position. Prior to this, if a client obtained an interdict with power of arrest and this was breached by the person interdicted, it was necessary for the client to raise separate breach of interdict proceedings, involving further civil court procedure and associated costs. For those clients eligible for legal aid it also required them to apply for separate civil legal aid and, where appropriate, meet a further legal aid contribution. This is no longer necessary, provided of course there has been a determination that the interdict with power of arrest is a domestic abuse interdict in terms of the 2011 Act. Indeed, where such a determination is in place, separate contempt of court or breach of interdict proceedings cannot be raised in connection with the same matter (s 2 (4) and (5)).

Procedural points

Section 3 of the 2011 Act details the procedure that requires to be followed to have an interdict looked upon as a domestic abuse interdict. It is therefore important that, when raising proceedings for interdict with power of arrest where the orders are likely to fall within the definition of a domestic abuse interdict, a determination is sought in this regard.

Section 3(2) provides that “The court may make the determination if satisfied that the interdict is, or is to be, granted for the protection of the applicant against a person who is (or was) –
(a) the applicant’s spouse,
(b) the applicant’s civil partner,
(c) living with the applicant as if they were husband and wife or civil partners, or
(d) in an intimate personal relationship with the applicant.”

From a practical point of view, a crave requires to be included within the initial writ craving that a determination be made in terms of the 2011 Act. At the pre-warrant hearing where interim interdict is usually sought, and a further hearing assigned in connection with the powers of arrest etc, it is necessary that this further hearing also be assigned in relation to a determination that the interdict sought is a domestic abuse interdict.

This is important because, for the court to make a determination that an interdict falls within the definition of a domestic abuse interdict, the person against whom the orders are sought must be granted the opportunity to make representations (s 3(3)). Therefore, when the initial writ and warrant are being served on such a person, he/she requires to be aware that a determination is sought in terms of the 2011 Act, in order that he/she can make any necessary representations.

It should also be borne in mind that a determination in terms of the Act cannot be made unless both an interdict and power of arrest are granted. Such a determination cannot be made if interdict only is granted. Once granted, the determination is not effective until a copy of the relevant interlocutor containing the determination has been served on the person against whom the orders have been granted (s 3(4)). As with other protective orders, a certificate of service of the orders on the person against whom the orders have been granted must be lodged with the court process.

The interlocutor and certificate of service must also be intimated to the chief constable of the relevant police authority, so that the orders and determination can be recorded. A certificate of intimation of the documents on the chief constable must also be lodged in process. It should also be noted that as powers of arrest can only be granted for periods up to a maximum of three years, the orders will fall after the time limit specified, unless they are extended by the court.

Where the court varies an interdict in relation to which a determination has been made in terms of the 2011 Act, the court must review whether the interdict, as varied, continues to be a domestic abuse interdict and, if not, recall the determination (s 3(5)). Where such a determination is recalled and an interim interdict with power of arrest is breached, this will not be looked upon as liable for criminal prosecution, and separate breach of interdict/contempt of court proceedings will require to be raised.

Extending non-harassment

The 2011 Act also makes provision in connection with non-harassment orders. Prior to the Act, the person seeking such an order required to show that the person against whom the order was sought was pursuing “a course of conduct” which amounted to harassment (s 8(1) and (3) of the Protection from Harassment Act 1997). Where the behaviour complained of is harassment amounting to domestic abuse, there is now no requirement to demonstrate that there has been a course of conduct amounting to harassment.

In terms of the new s 8A of the 1997 Act, inserted by s 1 of the 2011 Act, provision is made that conduct “may involve behaviour on one or more than one occasion and includes speech and presence in any place or area”. Harassment of a person is defined as including “causing the person alarm or distress”. For cases which do not involve domestic abuse, the requirement to show a course of conduct to obtain a non-harassment order remains.

The cost hurdle

Although the provisions of the 2011 Act provide those seeking protective orders with an additional remedy, practical difficulties remain. In particular, the cost of obtaining such orders remains prohibitive. Although the bill which introduced the 2011 Act contained provision for automatic eligibility for civil legal aid in cases where the orders sought fell within the definition of a domestic abuse interdict, this provision did not proceed to the final stages and did not form part of the final Act.

For many this was seen as a missed opportunity. Although we can pride ourselves on having a robust legal system which provides effective protective orders for those fleeing domestic and other types of abuse, the reality is that many who seek such orders are simply unable to access the courts because they cannot afford to do so. Civil legal aid is available to those seeking such protective orders; however, where a client requires to pay a contribution towards his/her legal aid entitlement, many find that they simply cannot afford to pay the costs involved. In the current economic climate it is unlikely that provision will be made for automatic civil legal aid eligibility with a nil contribution for those seeking protective orders. However, this is something which may, and in the author’s opinion should, be revisited in the future.