Protective orders for people at risk of domestic abuse: consultation

Part Two: Exclusion Orders

2.1 This part of the consultation covers exclusion orders. The purpose of this part of the consultation is to outline the existing law on exclusion orders and to seek views on whether any changes are needed to make exclusion orders more effective.

2.2 Exclusion orders are civil orders. A person can apply to court for an exclusion order which can suspend the rights of a person's spouse, civil partner or, in certain circumstances, cohabitant from living in the family home. Neither the applicant nor the other party have to be living in the property at the time the application for an exclusion order is made.

2.3 There is provision in section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 ("the 1981 Act") on exclusion orders for spouses. Section 5 of the 1981 Act makes provision on the duration of exclusion orders. The terms of sections 4 and 5 of the 1981 Act are outlined in Annex A.

2.4 Sections 104 and 105 of the Civil Partnership Act 2004 ("the 2004 Act") make provision on exclusion orders for civil partners. Sections 104 and 105 of the 2004 Act are in very similar terms to sections 4 and 5 of the 1981 Act.

2.5 There is discussion on cohabitants and exclusion orders in paragraphs 2.29-2.45 below.

2.6 An exclusion order can be granted by the court if it appears to the court that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the other party which is or would be injurious to the physical or mental health of the applicant or child. (See section 4(2) of the 1981 Act and section 104(2) of the 2004 Act. These provisions are subject to section 4(3) of the 1981 Act and section 104(3) of the 2004 Act. Potential changes to section 4(3) and section 104(3) are discussed in paragraphs 2.20-2.24 of this consultation.)

When an exclusion order is granted the court must, on application by the person seeking the order:

• grant a warrant for the summary ejection of the other party from the family home;
• grant an interdict prohibiting the other party from entering the matrimonial home without the express permission of the applicant;
• grant an interdict prohibiting the removal by the other party, except with the written consent of the applicant or by a further order of the court, of any furniture and plenishings in the family home;

unless, in relation to the first or third points above, the other party satisfies the court that it is unnecessary for it to grant such a remedy (Section 4(4) of the 1981 Act and section 104(4) of the 2004 Act). In making an exclusion order the court may—

• grant an interdict prohibiting the other party from entering or remaining in a specified area in the vicinity of the matrimonial home;
• where the warrant for the summary ejection of the other party has been granted in his or her absence, give directions as to the preservation of the other party's goods and effects which remain in the family home (Section 4(5) of the 1981 Act and section 104(5) of the 2004 Act).

2.7 A person who is applying for, or who has obtained, an interdict for the purpose of protection against abuse may apply to the courts for a power of arrest to be attached to the interdict. Where the interdict is a matrimonial interdict or a relevant interdict (under section 113 of the 2004 Act) which is ancillary to an exclusion order (or an interim order), the court must attach a power of arrest to the interdict (section 1 of the Protection from Abuse (Scotland) Act 2001.)

2.8 Under the Domestic Abuse (Scotland) Act 2011, it is a criminal offence to breach an interdict where there has been a determination (which is still in force) by the court that it is a domestic abuse interdict and there is power of arrest (which is still in force) attached to the interdict. Making the breach of a domestic abuse interdict a criminal offence was one of the issues discussed in the 2010 research referred to in the next paragraph.

Research on exclusion orders

2.9 There has been research and literature reviews on exclusion orders and research which mentions exclusion orders in a wider context. In putting forward proposals in this consultation in relation to exclusion orders, the Scottish Government has taken account of research and literature reviews. Research and literature reviews the Scottish Government is aware of is:

• AA Jackson, M Robertson and P Robson (1988) – The Operation of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 – Scottish Home and Health Department.
• Avizandum Consultants and AAJ Associates (2010). The use and effectiveness of exclusion orders under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 – Scottish Women's Aid^[14].
• Scottish Centre for Crime and Justice Research (2014). Violence against women: effective interventions and practices with perpetrators. A literature review^[15].
• Fife Domestic Abuse and Sexual Abuse Partnership (2015). Change, Justice, Fairness: "Why should we have to move everywhere and everything because of him?". Scottish Women's Aid^[16].

2.10 The 1981 Act has its origins in report number 60 by the Scottish Law Commission in 1980 on Occupancy Rights in the Matrimonial Home and Domestic Violence^[17].

Practice in relation to exclusion orders

2.11 The number of exclusion orders being applied for and granted is low.

2.12 Some of the previous research and literature reviews, whilst noting that improvements could be made in relation to exclusion orders, also noted that there could be other reasons why people do not apply for exclusion orders such as bail conditions being in place in some cases.

2.13 On when exclusion orders are used in practice, the 2010 research noted (in paragraph 4.2) that:

" In our sample, exclusion orders were not primarily sought as a method of removing an abuser from a shared home but sought as a means of keeping the abuser away after he had already left the home. In 23 (of 34) cases it was clear that the defender had already left the home; some had left because special bail conditions prevented return (4), some had separated in the recent past and a very few had lengthy separations."

2.14 There are no Scottish Courts and Tribunals Service statistics on the length of time it takes to deal with an application to court for an exclusion order. However, there are some statistics from the Scottish Legal Aid Board. These are at Annex B.

Court fees

2.15 The Scottish Government has recently made Scottish Statutory Instruments (SSIs) for court fees. These SSIs remove court fees in relation to applications for exclusion orders (and in relation to interdicts to protect against domestic abuse).

Potential changes in relation to exclusion orders

General

2.16 There are a number of potential changes in relation to exclusion orders where the Scottish Government would be grateful for your views.

Awareness

2.17 The 2010 research said in paragraph 7.4.1 that "there is a dearth of good, clear information and advice on civil remedies, particularly exclusion orders". The Scottish Government's current consultation on part 1 of the Children (Scotland) Act 1995 also noted the need for more public-facing information to be provided for those considering raising a family action in the courts and for children and young people affected by these cases.

2.18 In addition, previous research and literature reviews suggested that it might be helpful for local authority professionals (e.g. housing officers and social workers), the police and solicitors to be given more information about exclusion orders, so that they in turn can provide advice to those who may find an exclusion order helpful. Therefore, the Scottish Government would intend to produce both public facing and professional facing information on exclusion orders.

Question 16: Should the Scottish Government produce both public facing and professional facing information on exclusion orders?

If you wish, please give reasons for your answer.

Legal aid

2.19 The Scottish Government has carefully considered whether "free" legal aid (i.e. without applying the usual means test) should be given to those seeking an exclusion order. The Scottish Government is against taking this step as:

• There would be increased expenditure for the hard-pressed legal aid budget.
• Exclusion orders could be an ancillary crave to a wider family action. Free legal aid in relation to exclusion orders could lead to free legal aid for the wider family action too. This would be a major expense to the legal aid budget, given the number of family actions in court.
• If free legal aid should be given to those seeking exclusion orders, it is likely that, to ensure equality of arms, free legal aid would have to be given to those seeking to oppose the granting of an exclusion order.

Section 4(3) of the 1981 Act and section 104(3) of the 2004 Act

2.20 Section 4(3) of the 1981 Act and section 104(3) of the 2004 Act make provision on when the court is not to make an exclusion order.

Under these provisions, the court is not to make an exclusion order if it appears to it that to do so would be unjustifiable or unreasonable:

• (a). Having regard to all the circumstances including matters specified in paragraphs (a) to (e) of section 3(3) of the 1981 Act and section 103(3) of the 2004 Act. These factors relate to the conduct of the parties; the needs and financial resources of the parties; the needs of any child of the family; the extent to which the home is used in connection with a trade, business or profession of either party; and whether the entitled party is offering to make available to the non-entitled party any suitable alternative accommodation; and
• (b) Where the family home is, or is part of, any agricultural holding or is a home arising from employment the court must have regard to any requirement about parties residing in the family home and the likely consequences of excluding one of them. On this, the Scottish Government would note that where an agricultural holding or employment involves the care of livestock or other animals and where an exclusion order may impact on their care, alternative arrangements for the care of the animals must be put in place. Failure to ensure animal welfare could be an offence under the Animal Health and Welfare (Scotland) Act 2006.

2.21 The 1988 research recommended that section 4(3)(a) of the 1981 Act be repealed but that section 4(3)(b) on tied dwellings be retained.

2.22 The Scottish Government notes the following points on section 4(3)(a) of the 1981 Act and section 104(3)(a) of the 2004 Act :-

• The origins of section 4(3)(a) are discussed in paragraphs 4.3 to 4.11 of the Scottish Law Commission report which led to the 1981 Act^[18].
• The factors in section 3(3) of the 1981 Act and section 103(3) of the 2004 Act for the court to consider are varied in nature and relate to conduct; financial needs and resources of the parties; the needs of the child; whether the home is used for business purposes and the availability of alternative accommodation. It would be possible to retain some of these factors and not others.
• The research in this area is now quite old.

2.23 The Scottish Government's initial views are:

• In general terms, an exclusion order should be made if the court considers it is reasonable and justified to do so and making the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct;
• When considering whether or not to make an exclusion order, the court should take into account the needs of any child of the family;
• When considering whether or not to make an exclusion order, the court should take into account whether there would be any adverse implications for the applicant or any child of the family which would make it preferable not to make the proposed order
• There are arguments for retaining section 4(3)(b) of the 1981 Act and section 104(3)(b) of the 2004 Act, on tied housing (paragraph 2.24 below goes into more details.)
• There may be an argument for further work and analysis in this area.

2.24 On section 4(3)(b) of the 1981 Act and section 104(3)(b) of the 2004 Act, the Scottish Government considers there are specific factors in relation to agriculture tenancies which need to be considered when the court is deciding whether or not to make an exclusion order:

• an exclusion order could be detrimental to the daily management of a family farming business if that person was denied access to the agricultural holding. This could in turn raise financial hardship issues for the remaining family members, as an exclusion could have an impact on the amount of capital/income the family farming business generates; and
• where the agricultural tenancy involves the care of livestock, careful consideration should be given as to whether an exclusion order may impact on their care and, if so, whether alternative arrangements can be put in place to ensure their welfare. Failure to ensure animal welfare could be an offence under the Animal Health and Welfare (Scotland) Act 2006.

Question 17: Should any changes be made to section 4(3) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and section 104(3) of the Civil Partnership Act 2004?

If you wish, please give reasons for your answer.

Interdicts when an exclusion order is granted –wider powers needed?

2.25 Section 4(5)(a) of the 1981 Act provides that:

" In making an exclusion order the court may—

(a) grant an interdict prohibiting the non-applicant spouse from entering or remaining in a specified area in the vicinity of the matrimonial home"

Section 104(5)(a) of the 2004 Act is in similar terms.

2.26 The applicant may need as well an interdict which prohibits the person causing the risk from:

• entering a place where the protected person or any child of the family regularly visits;
• entering a place where the protected person works;
• contacting the protected person or any child of the family;
• approaching the protected person of any child of the family closer than a specified distance.

2.27 This would also seem to be in line with Article 52 of the Istanbul Convention on preventing and combating violence against women and domestic violence.

2.28 However, it is already possible to obtain an interdict (or a civil non-harassment order) which has the effects outlined in paragraph 2.26 above. Therefore, there is an argument that changes to section 4(5)(a) of the 1981 Act and section 104(5)(a) of the 2004 Act are unnecessary.

Question 18: Should the law be amended to give the court wider powers on granting interdicts when the court is granting an exclusion order?

If you wish, please give reasons for your answer.

Cohabitants

2.29 The 1981 Act and the 2004 Act make provision so spouses and civil partners without title to the matrimonial or family home gain occupancy rights. A spouse or civil partner without title to the home does not need to go to court to gain occupancy rights.

2.30 Under section 18 of the 1981 Act, a cohabitant (whether in an mixed sex or same sex relationship) without title to the home may go to court to obtain occupancy rights, for a 6 month (renewable) period.

2.31 A cohabitant suffering domestic abuse who has occupancy rights (whether because they have applied to the court for occupancy rights as outlined in paragraph 2.30 above or because the cohabitant is entitled to occupy the family home generally) can apply for an exclusion order to remove the abuser from the family home.

2.32 However, when a cohabitant suffering domestic abuse does not have occupancy rights, that person cannot obtain such an exclusion order.

2.33 Section 18(3) makes modifications to the 1981 Act so that it can work, in appropriate cases, for cohabitants.

2.34 Under section 18(4) of the 1981 Act, when an exclusion order is granted by the court to a cohabitant, it ceases to have effect:

• if one of the cohabitants is "non-entitled" (i.e. does not generally have occupancy rights but has been granted them by the court for a period, as outlined in paragraph 35 above), for a period specified in the exclusion order which cannot exceed the period(s) of occupancy rights granted by the court in line with the procedure as outlined in paragraph 35 above;
• if both or the cohabitants are entitled, or permitted by a third party, to occupy the home upon the court granting a further order.

Whether cohabitants without title should be given same occupancy rights as spouses and civil partners without title

2.35 One question arising is whether cohabitants without title to the family home should be given the same occupancy rights as spouses and civil partners without title.

2.36 This would involve making provision similar to section 1 of the 1981 Act and section 101 of the 2004 Act. Under this, non-entitled cohabitants would be given the same occupancy rights to the family home as non-entitled spouses and civil partners.

Risk of giving occupancy rights to abusers?

2.37 There may be a practical reason for not giving cohabitants without title the same occupancy rights as spouses and civil partners without title.

2.38 A person may have entered into a relationship but may have concerns about their new partner potentially being abusive. In such circumstances, the person with concerns may be prepared to cohabit with their new partner but may not wish to get married, or enter into a civil partnership, unless and until satisfied that the new partner is not abusive. If occupancy rights were granted to cohabitants without title, it is perhaps possible that abusive partners could be granted these rights.

2.39 The 2010 research noted, in paragraph 6.4, that:

" Eight women did not require an exclusion order because they had been the sole tenant or owner and had not been married to the abuser."

Definition of cohabitation

2.40 If cohabitants without title were given the same occupancy rights as spouses and civil partners without title we would need to define what is meant by cohabitation. There is already a definition in section 18(2) of the 1981 Act.

2.41 This provides that when considering an application for occupancy rights for a period (the procedure outlined in paragraph 2.30 above), in determining whether two people are a cohabiting couple the court must have regard to all the circumstances of the case including the time for which it appears they have been living together and whether there is any child of whom they are the parents or who they have treated as a child of theirs.

2.42 This definition is slightly different to the definition of cohabitant used in section 25 of the Family Law (Scotland) Act 2006 for the provisions of the 2006 Act on rights in certain household goods; rights in certain money and property; financial provision where cohabitation ends otherwise than by death and application to court by survivor for provision on intestacy. The definition of cohabitant in section 25(1) is a couple who are (or were) living together as if they were spouses^[19].

2.43 Section 25(2) then provides that in determining for the purposes of any of sections 26 to 29 of the 2006 Act whether a person is a cohabitant, the court must have regard to:

• the length of the period during which the two people have been living together (or lived together);
• the nature of their relationship during that period;
• the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.

2.44 It may be appropriate to amend the definition of a cohabiting couple in section 18(2) of the 1981 Act so that it refers to, for example:

• a couple living together as if married;
• the length of the period during which the couple have been living together.

2.45 Clearly, it is paramount for exclusion orders to protect children. However, it does not seem necessary to define cohabitants by reference to any children they may or may not have.

Question 19: Should cohabitants without title to the family home be given the same occupancy rights as spouses and civil partners without title?

If you wish, please give reasons for your answer.

Any other changes on exclusion orders?

2.46 Consultees may also have other suggestions for potential changes in relation to exclusion orders.

Question 20: Do you have any other suggestions for changes in relation to exclusion orders?

If yes, please outline these suggested changes.

Domestic Violence Protection Orders – recognition in Scotland

2.47 In England and Wales, Domestic Violence Protection Orders (DVPOs) can be issued by Magistrates' Courts, on an application by the Police, to temporarily remove a person causing risk from the family home and to stop that person from contacting the person at risk.

2.48 As DVPOs are issued by Magistrates' Courts, they are not enforceable in Scotland given the terms of section 18(3)(a) of the Civil Jurisdiction and Judgments Act 1982. The Scottish Government intends to amend the 1982 Act, when a legislative opportunity arises, so that DVPOs can be enforced in Scotland. Given the short duration of DVPOs, this may not be much of a practical issue.

2.49 However, as indicated above, the Scottish Government is aware of a consultation by the UK Government which proposes, amongst other points, that DVPOs south of the border be replaced by wide-ranging Domestic Abuse Protection Orders. These could be made in family, civil and criminal courts.

2.50 Therefore, before amending section 18(3)(a) of the 1982 Act, the Scottish Government would intend to discuss further with the UK Government what orders are made in Magistrates' Courts which might need to be enforced in Scotland.

Question 21: Do you have any comments on the Scottish Government's intention to amend section 18(3)(a) of the Civil Jurisdiction and Judgments Act 1982 so that orders made by Magistrates' Courts can be enforced in Scotland?

Longer-term review of civil protection orders to protect against domestic abuse

2.51 More generally, the Scottish Government is aware of the potential need to review civil protection orders to protect against domestic abuse, such as interdicts, to ensure that they are effective. In any such review, a number of factors would need to be considered:

• Measures must be effective.
• Measures must be clear. The name of a measure is markedly less important than what it does.
• The address of the person at risk should not be disclosed.
• Effective remedies (e.g. criminal offences) for breach of a measure are needed.
• It is generally helpful to have a power of arrest attached to a measure.
• There may be scope to simplify, clarify and improve the legislation in this area.

Any review would take some time and there would need to be close consultation with key stakeholders.

Question 22: Do you have any comments on factors to take into account in any longer-term review of civil protection orders to protect against domestic abuse?