Family Justice Modernisation Strategy

Part 4: Protecting victims of domestic abuse Background

4.1 The consultation on the review of the 1995 Act sought views on a number of areas in relation to protecting victims of domestic abuse and their children in family court cases including:

• banning of personal cross examination of domestic abuse victims in family court cases and Children’s Hearings court proceedings;
• protection of victims and vulnerable parties in Child Welfare Hearings;
• preventing repeated litigation;
• ensuring the civil courts are provided with information on domestic abuse in actions under section 11 of the 1995 Act; and
• improving interaction between criminal and civil courts in the context of domestic abuse.

4.2 In addition to the consultation on the 1995 Act, work in this area is being led by the Scottish Government’s Violence Against Women and Girls & Barnahus Justice Unit in relation to trauma training for professionals.

4.3 The Scottish Government also consulted from December 2018 – March 2019 on protective orders for people at risk of domestic abuse.^[15] This consultation sought views on creating new protective orders to keep people at risk of domestic abuse safe by banning perpetrators from their homes.

Banning of personal questioning of domestic abuse victims

4.4 Currently, there is no ban on individuals who have been convicted of domestic abuse or who have allegations of domestic abuse against them personally questioning their victim or alleged victim or their children during a contact and residence case. This could put vulnerable adults and children at risk of continuing abuse.

4.5 At present, not many contact and residence cases go to proof (the stage of court proceedings at which the court determines question of fact after hearing evidence).^[16] Instead, such cases tend to go through a series of Child Welfare Hearings.

4.6 As the consultation on the 1995 Act indicated, a number of other jurisdictions have introduced provisions restricting personal cross examination of domestic abuse victims for family court cases including New Zealand. In England and Wales the Domestic Abuse Bill which was introduced to the House of Commons on 16 July 2019 includes provisions restricting cross examination in person in family proceedings.^[17]

4.7 The Domestic Abuse (Scotland) Act 2018^[18] prohibits someone accused of domestic abuse from personally conducting their own defence. Similar prohibitions already exist for some other types of offences (for example those involving certain sexual offences). Where the prohibition applies, the defence must be conducted by a lawyer.

Protection of victims and vulnerable parties in Child Welfare Hearings

4.8 Concerns were raised by domestic abuse victims during stakeholder events and consultation responses that in Child Welfare Hearings they have to sit at the same table as their abusers. This matter was discussed at the FLC’s sub-committee on case management in family actions which reported in October 2017.^[19]

4.9 As part of the work by the FLC, the SCTS conducted a short survey of 15 courts of various sizes throughout Scotland.^[20] A third of the courts surveyed indicated that there was an automatic separation of parties at all Child Welfare Hearings, whilst the remainder said that suitable arrangements could be made if advised by solicitors or parties in advance of the hearing. The courts rely on parties bringing to their attention possible issues in relation to domestic abuse. More than half the courts surveyed did not receive any formal applications by parties for excusal on the basis of a domestic abuse context. Only two of the 15 courts surveyed had received applications from individuals to use a live television link to avoid being in the same room as the other individual.

Preventing repeated litigation

4.10 During stakeholder meetings as part of the consultation on the 1995 Act, the Scottish Government heard that domestic abusers can seek to continue their abuse by introducing repeated court actions without merit. However, others noted that an order can only be varied on a relevant change in circumstances. In some situations, varying an order may be in the best interests of the child as circumstances may have changed.

Ensuring the civil courts are provided with information on domestic abuse in actions under section 11 of the 1995 Act

4.11 The Scottish Government is aware that research has shown that domestic abuse is alleged in half of all court actions over contact raised by a parent in Scotland.^[21]

4.12 Parties may indicate in their initial pleadings or defences that they have been subjected to domestic abuse. In addition, a child welfare report may note any allegations of domestic abuse. However, there is no guarantee that information on domestic abuse is available to the court when they are dealing with a case under section 11 of the 1995 Act.

Improving interaction between criminal and civil courts in the context of domestic abuse

4.13 As noted in the consultation on the review of the 1995 Act the Scottish Government is aware that integrated domestic abuse courts exist in some other jurisdictions.

4.14 Different models of Integrated Domestic Abuse Courts are in operation in a number of other jurisdictions.

Trauma training for professionals

4.15 In Programme for Government 2018-19 the Scottish Government committed to developing an adversity and trauma informed workforce that are able to respond to the needs of everyone affected by psychological trauma, including victims of domestic abuse.

4.16 The National Trauma Training Programme was launched in 2018 to support the Scottish workforce to respond to psychological trauma. The programme is led by NHS Education for Scotland and is consistent with “Transforming Psychological Trauma”, the first Knowledge and Skills Framework for the Scottish workforce (2017) and the Scottish Psychological Trauma Training Plan (2019), which offers practical guidance to employers on how to develop, commission and embed the use of high quality trauma training to support the development of a trauma-informed workforce.

Consultation on protective orders for people at risk of domestic abuse

4.17 Research by Scottish Women’s Aid highlights that domestic abuse is a significant cause of homelessness in Scotland.^[22] It was also noted during the passage of the Domestic Abuse (Scotland) Bill through Parliament that it can be very difficult for those suffering or at risk of suffering from domestic abuse, the majority of whom are women often with caring responsibilities for children, to remain in their

own home when attempting to leave an abusive partner.

4.18 The 2018 Programme for Government committed the Scottish Government to consult on the creation of new protective orders in this area and on whether any changes are needed to the existing provisions on exclusion orders.

Aim

4.19 A key aim is to ensure that vulnerable parties, especially individuals who have experienced domestic abuse and their children, are protected in cases under section 11 of the 1995 Act. The Scottish Government is aware that attending court can be a stressful experience and recognises there is a need to reduce the stress of attending court and ensure that parties are able to participate fully in the court proceedings.

4.20 A further aim is to ensure that the civil courts are aware of any allegations or convictions for domestic abuse when considering whether to make an order under section 11(1) of the 1995 Act.

4.21 The aim of the consultation on protective orders for people at risk of domestic abuse and the trauma informed training is to further protect victims of domestic abuse.

Actions

Banning of personal cross examination of domestic abuse victims

4.22 Section 4 of the Children (Scotland) Bill introduces a new special measure into the Vulnerable Witnesses (Scotland) Act 2004 prohibiting a party from personally conducting the remainder of their case in certain circumstances. This special measure is available in proceedings where the court is considering making an order under section 11(1) of the 1995 Act and in Children’s Hearings court proceedings.

4.23 If a party has been prohibited from personally conducting the remainder of their case they may appoint a lawyer themselves (either privately funded or through applying in the usual way for legal aid). If the party fails to appoint a lawyer themselves the court has a duty to appoint a lawyer. The party will not bear the cost of this legal representation.

4.24 Section 6 of the Bill also gives the Scottish Ministers the power to establish a register of lawyers from whom a lawyer is to be appointed if a party fails to appoint one. The Scottish Ministers may by regulations specify the criteria a lawyer must meet to be eligible to be on the register and may also make provision about other matters, such as the fee rates payable.

Protection of victims and vulnerable parties in Child Welfare Hearings

4.25 Section 7 of the Bill gives the court the power to order a range of special measures in relation to a party if attending or participating in hearings is likely to cause the party distress which could be alleviated by use of a special measure. The court may order that the proceedings be conducted with the use of video link, with the use of screens or with a supporter. The measures in the Bill are similar to existing special measures used in the different context of assisting vulnerable witnesses when giving evidence in other civil and criminal proceedings.

Preventing repeated litigation in family cases

4.26 The Scottish Government proposes to make regulations under section 102 of the Courts Reform (Scotland) Act 2014 (the 2014 Act) in relation to family cases under section 11 of the 1995 Act. Section 102 of the 2014 Act enables the Scottish

Ministers, after consultation with the Lord President, to make regulations allowing the Court of Session, the sheriff court or the Sheriff Appeal Court to make an order in relation to a person who has behaved in a vexatious manner in civil proceedings.

Ensuring the civil courts are provided with information on domestic abuse in actions under section 11 of the 1995 Act

4.27 The Scottish Government proposes to submit a policy paper to the next meeting of the FLC which will include discussion of this issue. The Scottish Government will then consider next steps based on the outcome of the FLC meeting.

Improving interaction between criminal and civil courts in the context of domestic abuse

4.28 The Scottish Government has conducted research into the operation of integrated domestic abuse courts in other jurisdictions. This research has been published alongside this strategy.

4.29 The research found that there are a variety of different court models which share the desired outcomes of improving interaction between the criminal and civil justice system.

4.30 The process of scheduling criminal and family court matters together to be heard by one judge in Scotland entails a number of practical considerations. There are issues of legal prejudice, rights of audience, consent and information sharing. The Scottish Government considers that these issues need to be considered further.

4.31 As indicated in paragraph 4.27 above the Scottish Government will produce a policy paper for the FLC covering domestic abuse. In due course the Scottish Government will also prepare a general discussion paper for key stakeholders on improving interaction between criminal and civil courts.

Trauma training

4.32 The Judicial Institute for Scotland has launched training for all sheriffs and judges to support the implementation of the new domestic abuse legislation which came into force in April this year. All judges in Scotland will also be allocated to one of eight face-to-face domestic abuse courses taking place in the Institute’s purpose- built judicial learning suite over the course of 2019.

4.33 The face-to-face courses will build on online learning, and focus on the practicalities and issues arising for the judiciary, from investigation and prosecution to conviction and sentencing.

4.34 A number of external contributors, including representatives from Healthcare Improvement Scotland (who produced the Trauma Training Framework), Scottish Women’s Aid and the Caledonian System, will be involved in the face-to-face training to assist judges in understanding how the new offence will be investigated and prosecuted, as well as gaining an insight into the impact of the criminal behaviour on victims and children.

4.35 A bespoke, on-line, trauma-informed training resource for solicitors and other key legal professionals is in development. Drawing on a broad range of key stakeholders, this resource will provide a short insight via animation of the scenarios that solicitors may face in domestic abuse cases within a civil context. Such training will also assist technical understanding of the new provisions in the Domestic Abuse (Scotland) Act 2018 and most importantly promote a common understanding the impact of trauma on victims who have been subject to coercive and controlling behaviours. The Scottish Women’s Rights Centre have developed a face-to-face training package to complement this on-line resource, and the Law Society of Scotland will support its promotion through the requirement on solicitors to complete CPD and through road show events.

4.36 The Crown Office and Procurator Fiscal Service, who prosecute criminal cases, has developed an in-house package of training for prosecutors, including workshop training and self-completion e-learning.

Consultation on protective orders for people at risk of domestic abuse

4.37 The Scottish Government will publish the responses to the consultation in this area^[23] where we have permission to do so and also an analysis of responses in due course.

4.38 Initial consideration of the responses received to the consultation indicates that there is widespread support for the creation of protective orders which a third party, such as the police, can apply for to bar a suspected perpetrator of domestic abuse from a home that they share with a person at risk of abuse.

4.39 However, initial consideration of those responses also reveals that there is a wide range of differing views on a number of practical questions concerning how such a scheme should be put in place. Some of the key questions include:

• how long such orders should have effect for, both before and after being approved by a court; and the test to be applied in deciding whether to make a protective order;
• which bodies or individuals should be able to apply for such an order on behalf of a person at risk; and
• what safeguards may be required to protect the rights of a person against whom an order is sought, in view of the fact that such a person may not have been convicted of any domestic abuse-related offence.

4.40 The Scottish Government is still considering if more or new legislation is required in relation to exclusion orders. However, one clear point emerging from the consultation is that 84% of respondents were in favour of the Scottish Government providing further information on exclusion orders.

4.41 At the launch of domestic abuse good practice guidance for social landlords on 26 August 2019, the Cabinet Secretary for Communities and Local Government announced that the Scottish Government will take steps to raise awareness of exclusion orders. The precise steps to be taken will be discussed with the Chartered Institute of Housing and Scottish Women’s Aid. The Scottish Government’s aim is to issue material either later in 2019 or in 2020.