Ending conversion practices in Scotland: consultation

Part 14: The Purposes of a Conversion Practices Protection Order

178. Civil orders will be able to be used to prevent the harmful conduct associated with conversion practices from taking place. The conduct addressed by the civil orders will align with those in the criminal offences, so that they will address the provision of a service or a coercive course of behaviour undertaken with the intention to change or suppress the sexual orientation of a specific individual. The purpose of the civil protection order is to prevent or reduce the likelihood of the harm that arises from this conduct, whether to a specific identified individual or people in Scotland more generally. In situations where the order is being used to protect a specific, identified individual, there does not need to be evidence that conversion practices have already taken place. Instead, there needs to be evidence of a risk of conversion practices taking place, as defined in the conversion practices criminal offences, and a consequent risk of harm to the person to be protected. It will, though, remain possible to apply for a civil order to protect an individual where conversion practices have already taken place.

179. In instances where the order is being used to protect the wider community, it needs to be demonstrated that the person has on one previous occasion either provided in a service or engaged in a course of coercive behaviour or has caused someone to leave Scotland for the purpose of conversion practices.

The person to be protected is the individual whom the order is designed to protect from harm. The proposed civil order may also protect the community at large. The person or persons to be protected must be habitually resident in Scotland.

180. In addition to the route for applying for an order set out in paragraph 194 below, an order could also be granted where criminal conduct has been carried out. For example, we propose that an order could be granted at sentencing following a conviction for a criminal offence.

181. Civil orders would be considered by the civil courts on a case-by-case basis looking at the specific risk. The court would need to be satisfied that the order, and any prohibition or requirement in it, was necessary to protect either an individual or the wider community.

182. The same intent requirement applies to the civil orders as to the criminal offence and the avoidance of doubt provisions set out above at paragraph 118 will also apply to the civil protection order. As with the criminal offences, the civil orders will therefore not include behaviour that is not intended to change or suppress a person’s sexual orientation or gender identity. For example, advice, guidance and support for an individual to explore their thoughts, feelings, or manage any distress, and which does not direct a person towards a particular pre-determined outcome. They will not encompass practices offered through regulated healthcare services provided in line with the practitioner’s professional opinion, and which complies with medical, ethical and legal rules and guidelines, or practices that are supportive of a person’s expressed sexual orientation or gender identity.

183. Draft section – Conversion Practices Protection Order

10. Conversion practices protection orders

(1) A “conversion practices protection order” is an order—

(a) which, for a purpose mentioned in subsection (2), requires persons specified in the order to do, or prohibits persons so specified from doing, things described in the order, and

(b) which is made on an application to a court under section 11.

(2) A court may make a conversion practices protection order only if satisfied that the order is necessary for one of the following purposes—

(a) to prevent, or reduce the likelihood of, a person who is habitually resident in Scotland and who is identified in the order being harmed by behaviour mentioned in subsection (3) being engaged in in relation to the person,

(b) to otherwise prevent or reduce the likelihood of persons, who are habitually resident in Scotland, generally being harmed by behaviour mentioned in subsection (3) being engaged in.

(3) The behaviour is behaviour (whether a course of behaviour or behaviour on a single occasion)—

(a) which—

(i) constitutes (or is part of) provision of a service to another person, or

(ii) is coercive of another person, and

(b) which is engaged in with the intention mentioned in subsection (4).

(4) The intention is that any sexual orientation or gender identity which (at the time the behaviour is engaged in)—

(a) the person in relation to whom the behaviour is engaged considers is (or may be) the person’s sexual orientation or gender identity, or

(b) the person engaging in the behaviour presumes to be the sexual orientation or gender identity of the person in relation to whom the behaviour is engaged,

will be changed or suppressed.

Part 14: The Purposes of a Conversion Practices Protection Order

(5) A conversion practices protection order may impose a requirement or prohibition on a person only if—

(a) the court considers the particular requirement or prohibition to be necessary for the purpose for which the order is made,

(b) where the requirement or prohibition is imposed on an individual, the individual is aged 18 or over,

(c) where the order is made for the purpose mentioned in subsection (2)(b), the court is satisfied that the person has, on at least one previous occasion—

(i) engaged in behaviour mentioned in subsection (3), or

(ii) with the intention mentioned in section 6(1)(c), caused a person who is habitually resident in Scotland to leave Scotland.

(6) The requirements and prohibitions which may be imposed on a person by a conversion practices protection order include—

(a) a prohibition on approaching or contacting, or attempting to approach or contact, any protected person,

(b) a prohibition on engaging in behaviour mentioned in subsection (3),

(c) a prohibition on attending such place as is specified in the order,

(d) a prohibition on taking any protected person from, or to, such place as is specified in the order,

(e) a requirement to facilitate or otherwise enable any protected person to return or go to such place as is specified in the order within such period as is so specified,

(f) a prohibition on causing any protected person to leave Scotland,

(g) a requirement to submit to the court such documents as are specified in the order (which may include passports, birth certificates or other documents identifying a person and travel documents),

(h) a prohibition on advertising or promoting a service mentioned in subsection (3).

(7) A conversion practices protection order may include requirements and prohibitions relating to behaviour outside (as well as, or instead of, behaviour within) Scotland.

(8) In this Part, “protected person” means a person identified in a conversion practices protection order as mentioned in subsection (2)(a).

27. What are your views on the purposes of the proposed conversion practices protection order?

Support

Do not support

Don’t know

28. Please explain your answer to Question 28.

What powers will the courts have?

184. Based on conversations we have had with stakeholders and those with lived experience, we appreciate that each victim’s experience is unique. We therefore propose that the courts are given a broad power to impose any requirements and prohibitions that are required to protect the individual. No requirement or prohibition could be imposed on a person by a court where it was not necessary for the protection of another person, or the protection of people in Scotland generally, who are at risk of harm from conversion practices. The court will only be able to place a requirement or a prohibition on a person who is over 18 years old.

185. This flexibility will enable the courts to address the complex and varied nature of conduct associated with conversion practices. For example, an order could put in place certain restrictions on a person who has been identified as posing a risk of harm to another person by undertaking conversion practices, This could include stopping them from engaging in the harmful behaviour, contacting the person at risk, taking them to a certain place, or taking/retaining them outside of Scotland.

186. Where an order was made to protect the community, the court would be given the power to place any necessary restrictions and/or requirements on an individual whose conduct is considered to place others at risk of harm from the carrying out of conversion practices. This would include refraining from the acts involved, or the advertising and promoting of the conversion practices.

187. It will be necessary to prove on the balance of probabilities that the organisation or individual concerned had carried out conversion practices on at least one occasion before or had caused a person to leave Scotland for the purpose of conversion practices.

188. The court would also have the power to determine the duration of the order or any conditions or requirements within it. However, this will be subject to the necessity of the conditions or requirements. It would also be possible to apply to the court to have the order lifted or varied. We intend for the court to have the power make an interim order where it considers this necessary. This follows the approach of other civil orders, including forced marriage, female genital mutilation and interdicts.

189. The court must hold a hearing before deciding whether to grant an application. This will allow all relevant parties to present their views to the court. In deciding whether to grant an order and what conditions to include, the court must take account of all of the circumstances of the case. It must particularly consider the need to secure the health, safety and well-being of a person to be protected by the order.