Protective orders for people at risk of domestic abuse: consultation analysis

Introduction

1.1 The Scottish Government published a consultation paper, 'Protection Orders for People at Risk of Domestic Abuse', on 21 December 2018. The consultation ran until 29 March 2019.

1.2 A number of jurisdictions across Europe have introduced protective orders for people at risk of domestic abuse, often referred to as 'emergency barring orders'. These are short-term orders which can be used to remove a suspected perpetrator of abuse from the home of a person at risk of abuse. They may also prohibit that person from contacting the person at risk.

1.3 They are intended to provide protection to a person at risk of abuse in the immediate term. The consultation paper contained proposals for protective orders which would not require the person at risk to make an application to the court themselves. In the longer term, the person at risk may consider seeking a civil protective order, such as an interdict, non-harassment order or exclusion order. These existing civil protective orders are applied for by the person seeking protection.

1.4 In the context of a criminal investigation or prosecution, there are a number of existing powers that the police and courts can use to protect a person at risk of domestic abuse. In addition, the disposal upon conviction for a criminal offence may include measures to put more long-term protection in place for the person at risk.

1.5 The purpose of the consultation was to seek views on whether the police and the courts should be provided with additional powers to impose a protective order to remove a person suspected of abusing their partner from the home of the person at risk and, if so, on how such a scheme should operate.

1.6 The consultation found that the great majority of respondents who expressed a view supported providing the police with a power to impose emergency protective orders to remove a suspected perpetrator of domestic abuse from the household of a person at risk of domestic abuse. There was almost unanimous agreement that the courts should have a power to impose a protective order that could run for a period longer than those imposed by the police.

1.7 However, there were differing views on the details of how any such scheme should operate. For example, there were a range of views on how long any police-imposed emergency orders and court-imposed protective orders should be able to run for, whether others besides the police should be able to make an application to the courts for a protective order, and whether the scheme should be restricted to people at risk of abuse from a partner or ex-partner or should cover other adult family members or unrelated individuals living in shared housing.

1.8 A great majority of respondents also thought that such orders should be sufficiently widely drawn to enable them to be used to protect any children connected to the person at risk.

1.9 Almost all respondents who expressed a view were of the view that it was vital that if protective orders are to provide effective protection to people at risk of abuse, then as well as removing a suspected perpetrator from a family home, they should also be capable of being used to impose restrictions similar to those which can be imposed by interdicts or non-harassment orders, such as not attempting to contact the person to be protected and not approaching their place of work or study.

1.10 A number of consultation respondents highlighted what they saw as the importance of people at risk of domestic abuse having access to support services which can assist them in making long-term decisions in order to ensure their personal safety if the creation of shorter-term protective orders are to be effective. Several of these specifically highlighted access to legal advice. Other issues raised by respondents included the importance of clear training and guidance being made available to professionals working in this area if any new scheme of protective orders is to be effective and of sufficient resources being made available to support services to enable them to provide effective support to people at risk of abuse.

1.11 This report presents a summary of the consultation responses received and the main points raised by those responses. Where permission has been given to do so, individual responses have been published and can be viewed at: https://consult.gov.scot/justice/people-at-risk-of-domestic-abuse/consultation/published_select_respondent. This consultation also sought views on matters relating to reform of exclusion orders. However this analysis is limited to consideration of the proposal to introduce new protective orders for people at risk of domestic abuse.

Background to the Consultation

1.12 In February 2018, the Scottish Parliament passed the Domestic Abuse (Scotland) Act 2018, which provides for a specific statutory offence of domestic abuse. During the Parliament's consideration of the Domestic Abuse (Scotland) Bill, a number of third sector respondents raised concerns that there is a gap in protection available to victims of domestic abuse. They were concerned that a person wishing to obtain immediate or long-term protection, particularly in relation to keeping a perpetrator away from their home, can only obtain such protection if the perpetrator enters the criminal justice system or if the victim takes out a civil order against the perpetrator.

1.13 As part of their consideration of the Bill, the Justice Committee held an evidence session^[1] on these issues in October 2017, taking evidence from Police Scotland, Scottish Women's Aid, the Law Society of Scotland, and Professor Mandy Burton.

1.14 Following that evidence session, the then Cabinet Secretary for Justice stated that a consultation would be published which would seek views on questions about how policy to provide for relevant powers to protect those at risk of domestic abuse might be developed.

Profile of respondents

1.15 There were 78 responses to the consultation. Of these responses, 32 were received from individuals and 46 were from organisations.

1.16 The organisations which responded to the consultation can be broken down into the following broad categories:

• Violence Against Women and Gender-based Violence Partnerships (10)
• Third sector groups representing victims (8)
• Justice and legal sector groups (6)
• Local Authorities (4)
• Health, Social Work and Social Care groups (6)
• Housing (5)
• Children's groups (4)
• Others (3)

1.17 The majority of individual responses came from people who said that they either had experienced domestic abuse or were recounting the experiences of a close friend of relative who had experienced domestic abuse. A minority came from individuals who said that they either had been, or knew someone who had been, falsely accused of perpetrating domestic abuse.

1.18 Further information on the organisations which responded and how they have been classified for the purpose of this analysis is set out at Annex A.