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

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 section 113 – “relevant interdict” Common law interdicts- not derived from legislation- for women not living with their partner

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?

“Domestic Abuse” interdicts  Domestic Abuse (Scotland) Act section 2- applies to interdicts made on or after 20 th July 2011  Act provides that where an interdict has been “determined” by the court to be a “domestic abuse interdict” and the 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?”

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.

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!

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