Ending conversion practices in Scotland: consultation

Part 15: Civil Orders – Considerations

Breaching a conversion practices civil order

190. We believe that there must be a criminal penalty for breaching a civil order. This will ensure they are effective as a deterrent, therefore working towards our overall goal of ending conversion practices in Scotland.

191. Having this preventative effect and the ability to progress with prosecution if a protection order is breached can empower persons to come forward and to rely on the state to positively end their ordeals. We therefore propose that civil orders relating to conversion practices carry a criminal penalty for a breach to ensure they act effectively as deterrents.

192. In line with Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 and the Prohibition of Female Genital Mutilation (Scotland) Act 2005 (as amended by the Female Genital Mutilation (Protection and Guidance) (Scotland) Act 2020), we propose the following sentencing range for breaching a conversion practices civil order:

• on summary conviction: imprisonment for a period not exceeding 12 months, a fine not exceeding the statutory maximum, or both
• on conviction on indictment (solemn procedure): a sentence of imprisonment not exceeding 2 years, a fine, or both

Who would be able to apply for an order?

193. Due to the nature of conversion practices, persons at risk may be reluctant to come forward and request a protection order. That is why it is essential that family, friends, or a support organisation are able to apply for an order in relation to a person at risk. This is particularly important as individuals may not be aware that they are victims of conversion practices. For example, if the conduct is being carried out by a family member or trusted member of their community.

194. Our proposal is that the following people could apply for a new conversion practices civil order when it is in relation to a specific person to be protected:

• the person to be protected
• the police
• local authority
• a third party (only with leave of the court)

Leave of the court means permission of the court. The court would need to establish the applicant’s connection to those involved in the case and decide whether or not to grant them permission to apply for an order. A third party refers to a person or organisation other than the individuals primarily involved in the case, for example, a friend or support worker.

195. If a third party person or organisation seeks leave of the court in order to apply for a conversion practices protection order the court must take into account their connection with the person to be protected, their wishes and feelings and why they have not made an application themselves. In deciding what weight to give their views, the court will consider their age and understanding. This allows the court to consider all of the information in situations where the protected person may not want an order to be made on their behalf.

196. Where an order is being applied for to address systemic conversion practices, or to protect the community as a whole (rather than a specific individual), we propose that only the following people should be able to apply:

• the police
• local authority

197. Draft Section – application for conversion practices protection order

11. Application for conversion practices protection order

(1) The following persons may apply to the court for the making of a conversion practices protection order—

(a) where the application is for an order to be made for the purpose mentioned in section 10(2)(a)—

(i) any person who would, were the order made, be a protected person,

(ii) a relevant local authority,

(iii) the chief constable,

(iv) with the leave of the court, any other person,

(b) where the application is for an order to be made for a purpose mentioned in section 10(2)(b)—

(i) a relevant local authority,

(ii) the chief constable.

(2) In deciding whether to grant a person (“the applicant”) leave to make an application for a conversion practices protection order as mentioned in subsection (1)(a)(iv), the court is to have regard to all the circumstances, including—

(a) the applicant’s connection with any person who would, were the order made, be a protected person,

(b) the applicant’s knowledge of that person and the person’s circumstances,

(c) the wishes and feelings of such a person so far as they are reasonably ascertainable,

(d) any reason why the application is being made is being made by the applicant and not such a person.

(3) The court is only required to have regard to a person’s wishes and feelings as mentioned in subsection (2)(c) so far as it considers it appropriate to do so, having regard to the person’s age and understanding.

(4) The court may permit—

(a) any person who would, were the order made, be a protected person to be a party to proceedings relating to an application made under subsection (1).

(b) any other person mentioned—

(i) in subsection (1)(a) to be a party to proceedings relating to an application made, for the purpose mentioned in section 10(2)(a), by another person mentioned in that subsection,

(ii) in subsection (1)(b) to be a party to proceedings relating to an application made, for the purpose mentioned in section 10(2)(b), by another person mentioned in that subsection.

(5) In this Part, a “relevant local authority” is—

(a) the local authority in the area of which a person who would, were the order made, be a protected person is present, or

(b) any local authority in the area of which there is a risk of behaviour of the type mentioned in section 10(3) being engaged in.

12. Determination of application

(1) A court to which an application under section 11 is made must hold a hearing prior to determining the application.

(2) The hearing must include an opportunity for any of the following persons who wish to make representations to the court about the application to do so—

(a) the person who made the application,

(b) any person who would, should the application be granted, be a protected person,

(c) any person on who any requirement or prohibition would be imposed, should the application be granted,

(d) any other person who is a party to the proceedings.

(3) In determining the application (including what requirements and prohibitions to impose, should the application be granted), the court must have regard to all the circumstances, including in particular the need to secure the health, safety and well-being of any person who would, should the application be granted, be a protected person.

(4) In ascertaining the well-being of any such person the court must——

(a) to such extent as the court considers appropriate having regard to the person’s age and understanding, have regard to the person’s wishes and feelings (so far as reasonably ascertainable), including whether the person wishes the application to be granted, and

(b) where the person does not wish the application to be made, any reasons for that view of which the court is aware.

29. Do you agree or disagree with the proposals for who should be able to apply for a conversion practices civil order?

Agree

Do not agree

Don’t know

30. Please explain your answer to Question 30.

Extra-territorial effect

198. The Scottish Government believes that it is essential for conversion practice protection orders against conversion practices to protect individuals from being taken either elsewhere in the UK, or overseas for the purpose of conversion practice, and also to be based on conduct that took place elsewhere in the UK or overseas. Forced Marriage protection orders and Female Genital Mutilation protection orders allow for individuals to be protected from being taken overseas. They can be based on conduct that took place overseas against someone who is resident in Scotland. Therefore, in relation to the new order, we propose the courts will be able to:

• Include conditions preventing a person from being taken out of Scotland for the purpose of conversion practices
• Include requirements or prohibitions in relation to conduct that takes place outside of Scotland.

Children and young people

199. It is important that any new legislation does not put any child at risk or interfere with the existing multi-agency framework that currently exists to protect children.

200. When dealing with children, multi-agency child protection processes must be followed in-line with the National Guidance for Child Protection in Scotland.

201. We believe that if the facts and circumstances of an act of conversion practices can be demonstrated, a local authority, or other person, will be able to obtain a Child Protection Order under sections 37-39 of the Children’s Hearings (Scotland) Act 2011 (asp 1). It will be open to the Local Authority, based on the facts of the case, whether to apply for a conversion practices protection order, or a Child Protection Order. If a conversion practices order is chosen, it will likely still be appropriate for multi-agency child protection processes to proceed in instances where there is potential risk to the child.

202. We also propose that, as is the case with Forced Marriage Protection Orders and Female Genital Mutilation Protection Orders, a new civil order for conversion practices should be considered ‘relevant proceedings’ for the purposes of section 62(5) of the Children’s Hearings Act 2011. This means that during an application for a conversion practices protection order, the Court itself can refer the case to the Principal Reporter if it considers that one of the grounds for referral set out in that legislation might apply. This can include, for example, situations where the child is at risk of abuse and harm.

31. Do you have any other comments regarding the civil order as set out in Parts 13 – 15?