Responding to Domestic Abuse - Guidelines for Health Care Workers in NHSScotland

RESPONDING TO DOMESTIC ABUSE - GUIDELINES FOR HEALTH CARE WORKERS IN NHSSCOTLAND

GLOSSARY OF TERMS

The following provides an explanation of legal terms. It does not offer advice on which option a woman should pursue. This will depend on her individual circumstances and advice should be obtained from a solicitor.

Court order

This is the blanket name given to written instructions or decisions made by the court, some of which may give protection against domestic abuse. Some court orders can be granted on an emergency basis and a court can grant one or more order at the same time. For example, the court can be asked to grant an Exclusion Order on an emergency basis and at the same time as a Matrimonial Interdict is being sought.

Before considering applying for a court order, advice should be obtained from a solicitor, as this is a complex area of law. In order to obtain a court order, evidence will be needed in addition to the woman's own statement to satisfy the court that it is reasonable for the woman to be afraid of abuse or further abuse from the abuser. Evidence might come from a friend, a neighbour or relative who has witnessed or heard the abuse or seen the injuries, or can be provided from a medical report and police records.

Most court orders can be obtained quickly if the applicant is at risk. However, applications to the court must be prepared and also paid for. The woman may be eligible for Legal Aid to help with legal expenses, but this is only free for those in receipt of Income Support or income-based Job Seeker's Allowance, or whose income is below certain defined levels. If the woman's income is above this level she will be required to make a financial contribution, which can be high. The Scottish Legal Aid Board will allow contributions to be paid over 20 months.

Criminal Injuries Compensation

If a woman has contacted the police for protection against domestic abuse in the past, it is worth contacting the Criminal Injuries Compensation Authority (CICA) for information on making an application for compensation for any injuries sustained. It must be pointed out, however, that compensation is not available to anyone who continues to live in the same household as the abuser. CICA can be contacted as follows:

Criminal Injuries Compensation Authority (CICA)

Tay House
300 Bath Street
GLASGOW
G1 4JR
Tel: 0141-331 2726

Exclusion Order

This is a court order, which suspends the occupancy rights of the partner, against whom it is granted, to live in the family home. It is available to all married people and to some unmarried cohabitants. Unmarried women will need to ask advice from Scottish Women's Aid or from a solicitor to find out whether they might be entitled to an Exclusion Order. Exclusion Orders are not available to those in same sex relationships.

In order to obtain an Exclusion Order the court must be satisfied that it is necessary to protect the woman and/or her children from any behaviour of the partner which is potentially harmful, physically or mentally. The woman will be required to make a sworn statement about the way her partner has behaved in the past, and whether that behaviour is likely to occur again. She will need a medical report, or a sworn statement from another person, confirming what she says. The courts are cautious about making Exclusion Orders because it would be wrong to put someone out of their home without good reason. Exclusion Orders can be granted on an emergency basis, but usually take at least 2 or 3 weeks to be dealt with, because the partner must be given the opportunity to oppose the application.

Interdict

This is a court order, which prohibits a person from a particular action or behaviour and can prevent a person behaving unlawfully towards another. The unlawful behaviour can be of any kind and includes domestic abuse. This might include physical violence, threats and/or verbal abuse. Anyone who is affected by the unlawful behaviour of another person can apply to the court for an ordinary Interdict. It does not matter whether the applicant is married or unmarried, or in a same sex relationship.

After 6 February 2002, anyone applying for any Interdict for the purpose of protection from abuse or anyone who already holds one, can seek to have a power of arrest attached to that Interdict under the terms of the Protection From Abuse (Scotland) Act 2001. This enables the police to arrest an interdicted person without warrant, if he has breached the terms of the interdict and there would be a risk of further abuse if he were not arrested.

Matrimonial Interdict

This is a special type of Interdict granted in terms of the Matrimonial Homes Act, which prohibits abusive behaviour by a partner and allows police discretion to arrest if the Interdict is breached. It is available to married people and unmarried people living together as man and wife, if the court has given them occupancy rights. It is not available to people in same sex relationships.

Matrimonial Interdicts are often granted along with Exclusion Orders, but they can stand alone. Exclusion Orders can be used to order the partner not to come near the family home, to prohibit the removal or destruction of furniture from the home, and to prohibit violence, verbal abuse, threats and harassment.

The advantage of a Matrimonial Interdict over ordinary Interdicts is that a power of arrest may be attached, at the discretion of the court. Powers of arrest make interdicts more effective in deterring abusive behaviour. Powers of arrest are available to married people but unfortunately they are not always available to unmarried people, unless the court has given the occupancy rights. Matrimonial Interdicts under the Matrimonial Homes Act can only be granted to those who qualify under the Act. An unmarried woman will need to ask advice from Scottish Women's Aid or from a Solicitor to find out whether she might be entitled to powers of arrest.

Non-Harassment Order

This can be obtained to prevent a person from behaving in a way which is not on the face of it unlawful, but which is designed to cause fear or distress to another person. This might include following a person, sending letters or unsolicited gifts, telephoning repeatedly, etc. There must have been at least two incidents of harassment before the order can be made. It can be made either in a civil court on the application of the woman, or in a criminal court on the application of the Procurator Fiscal.

A Non-Harassment Order may be more complicated and difficult to obtain than an interdict, because a breach of a Non-Harassment Order is a criminal offence, punishable by up to 5 years in prison or an unlimited fine. This type of order can be made in favour of anyone who has been harassed. It may therefore be of use to people who are not able to obtain Exclusion Orders and Matrimonial Interdicts, such as couples in same sex relationships, former partners or other relatives.

Occupancy rights

These are the legal rights established in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (the "Matrimonial Homes Act") which entitle people to live legally in their home. Occupancy rights are important because the right to stay in or return to the home is dependent on them. Occupancy rights also entitle a person to return to and live in the home, even after having left for any reason or for any period of time up to 5 years.

If a woman is married, she has an automatic right to stay in her house and it does not matter if she does not own or rent the house. Even if her name is not on the title deed or lease, she cannot be evicted without a court order. However, occupancy rights of married couples end on divorce.

If the woman lives with her partner and they both own or rent the house, they both have occupancy rights and if the house is owned or rented in one name only, the other partner does not have any occupancy rights and would have to go to court to get these.

Matrimonial Interdicts with powers of arrest attached can only be granted to persons qualified in terms of conditions laid down in the Matrimonial Homes Act. For further information please see A Guide to the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

People in same sex relationships can only get occupancy rights if they own or rent the house either in their own name or jointly with their partner. They cannot go to court to have occupancy rights established.

Protection from Abuse (Scotland) Act 2001

This allows the power of arrest to be attached to any interdict for the purpose of protection from abuse. It enables the police to arrest an interdicted person without warrant, if he has breached the terms of the interdict and there would be a risk of further abuse if he were not arrested. However, a person cannot be subject at the same time to powers of arrest attached to both a Matrimonial Interdict and any other interdict under the Protection from Abuse (Scotland) Act. Attaching a power of arrest to an interdict to protect against abuse can be applied for by anyone at risk, regardless of his or her relationship with the potential abuser.