Power for court to make a protective order
3.1 The consultation asked two questions seeking views on whether the courts should have a power to impose a protective order barring a suspected perpetrator of domestic abuse from a home they share with a person at risk. The first asked respondents whether they supported providing the courts with a power to make such orders:
Question 3: Do you agree that the courts should be given powers to make an order to protect a person at risk of domestic abuse by prohibiting the person posing the risk from returning to the person at risk's home while the order is in force?
3.2 The great majority of respondents supported providing the courts with a power to make an order to protect a person at risk of domestic abuse by removing a suspected perpetrator of abuse from their home (including a small number of those who were opposed to providing the police with a power to make an order that didn't require to be confirmed by the courts). In total, 62 respondents supported providing the courts with such powers, while 4 respondents opposed providing the courts with such a power and 4 respondents said they didn't know, or were unsure, about whether the courts should be provided with such a power. Those supporting the creation of such powers included all victims' group, housing and local authority respondents and all but one of the violence against women and gender based violence partnerships. One victims' group respondents, whose views were typical of many of the responses received, commented:
"Yes, we agree with the proposal in…the consultation document that if powers are given to the police to impose an immediate measure to protect a woman at risk of domestic abuse, a court should then be involved in considering whether protective measures should remain in place for a specified period."
3.3 For the most part, the small number of respondents who opposed providing the courts with such powers were concerned that it could encourage "false allegations", including the possibility that allegations would be made by people who are actually perpetrators of abuse. However, one health and social care respondent questioned whether the new powers would add to the courts and police's existing powers to deal with domestic abuse:
"…if Scottish Government are considering an additional power to work alongside bail, special bail and use of remand it would be useful to have sight of the research which supports the need for this and better understand what is not working in the present system."
3.4 Views were then sought on the question of how long any such order should be capable of having effect for:
Question 4: If the courts are given a new power to impose measures to protect a person at risk of domestic abuse, we would welcome views on whether there should be a maximum period of time beyond which such measures would not apply and, if so, what that period should be.
3.5 There was, again, a wide range of opinions from consultation respondents on the question of how long any court-imposed order should run for. Not all respondents provided a numerical answer to the question of how long orders should run for, but in very general terms, there was a split between those respondents who took the view that such court orders should be a short-to-medium term measure to be put in place to provide time for a person at risk of abuse to make longer-term plans for their housing needs (such as, for example, pursuing am exclusion order or removing the perpetrator from a joint tenancy).
3.6. The following table gives a broad summary of the range of views on this issue:
|Time court order should have effect for||Number of respondents|
|Short term (up to 1 month)||6|
|Medium term (1-3 months)||10|
|Long term (longer than 3 months, but for a fixed period)||6|
|Should be capable of running indefinitely||14|
3.7 Generally speaking, individual respondents and those from the housing sector were most likely to be of the view that the order should either be long-term or indefinite in length. Beyond that, there was little clear correlation between the type of respondent and how long they thought the order should be capable of running for.
3.8 Other points raised by respondents included that there should be a mechanism to review the continuing need for a protective order (this from a housing sector respondent who favoured an approach where a court order could run for a long time), and a suggestion from a justice and legal sector respondent that a court order could run until particular agreed actions had been completed, as opposed to having a specific time limit. A number of respondents commented that it was important that an order should be capable of being extended on cause shown if this was necessary to ensure that the person whom the order was made to protect was not put at risk.
3.9 The consultation asked three questions about the circumstances in which a court should be able to consider imposing such an order. It was assumed that one route would be following an application by the police. The consultation also sought views on whether others should be able to make such applications and whether it should be possible for a criminal court to make such an order on conviction. In view of the close links between these three questions, the responses are considered together below.
Question 5: We would welcome views on which bodies and/or people should be able to make an application to a court to impose measures to protect a person at risk of domestic abuse.
Question 6: Do you think a criminal court should be able to impose measures to protect a person at risk of domestic abuse that would bar a perpetrator from a shared home for a period of time, when sentencing the offender.
Question 7: Where an application is made to the court for measures to protect a person at risk of domestic abuse by someone other than the person at risk, should the consent of the person who may be at risk be required for such an order to be made?
3.10 With regards the question of whom, beside the police, should be empowered to apply to the courts for a protective order, a wide range of bodies were suggested by respondents, including the person at risk themselves, family members of the person at risk, local authorities, housing associations, organisations providing support to victims of domestic abuse, healthcare professionals and others. The most commonly suggested people/organisations and the number of respondents who referred to them is noted in the table below:
|Organisation/individual who should be empowered to apply to the court for a protective order||Number of respondents|
|Local authority/social work||34|
|3rd Sector/Domestic Abuse/Women's Aid Groups||24|
|The person at risk themselves||22|
|Restrict to the police||7|
3.11 It is worth noting that individual respondents were particularly likely to refer to local authority/social work officials as people who should be empowered to make applications on behalf of a person at risk of abuse. Of those who considered that the power to apply to the courts should be restricted to police officers, a number highlighted that they saw other bodies as having a role in advising the police where they consider a person may be at risk. For example, one local authority respondent commented:
"…there should be a clear framework for making an application and that in the interests of developing consistent effective practice it may be appropriate to have a single agency lead on the application process. We would suggest that this should be the police with referrals in from social work, housing, housing associations or a third sector organisation like Women's Aid…Other organisations could inform the individual that a Barring Order is an option and support the person on this decision."
3.12 Other respondents raised concern that allowing individuals or their family to apply directly to the courts for such orders could increase the risk that perpetrators would claim to be victims of abuse in cases where they wanted the victim to be removed from the shared home. One also questioned whether third sector organisations providing support to victims had appropriate governance arrangements in place to make decisions on whether to make an application.
3.13 However, other respondents explicitly saw advantages in widening out the pool of organisations who could apply for such orders beyond the police. For example, one justice and legal sector respondent commented:
"A person at risk, family members and local authority professionals should also be given the opportunity to apply to court for a protective order which would provide flexibility. Where a person at risk is reluctant to involve the police, this would be beneficial, and the court could act as the gate-keeper to ensure such an application is appropriate and proportionate."
3.14 Question 7 is directly linked to question 5 in that it relates to the question of whether the consent of the person at risk should be required before an application is made to the court for a protective order by a third party (whether this is the police or some other body). There were mixed views on this question. In total, 18 respondents thought that consent should be required before an application was made, while 30 respondents thought it should not be required. A further 17 respondents either said that they did not know or provided a response to this question which was ambiguous.
3.15 Amongst those who thought that the consent of the person at risk should not be required before a court application was made, there was a clear recognition of the importance of keeping the person at risk informed and providing them with an opportunity to make their views known. There was, however, a concern that if a perpetrator of abuse knew that such an order could only be made with the person at risk's consent, this could in itself put the person the order is intended to protect at greater risk. One victims' group respondent, whose response was typical of many, commented:
"it should not be required, but it should be taken into consideration. Sometimes women are concerned that if it is known by the perpetrator that they made the request, then they consider themselves to be at greater risk to further abuse. Orders should be made on the basis of risk and the perpetrators behaviour."
3.16 One individual respondent, again typical of a number of responses that were received, highlighted concerns that people at risk of abuse may not always recognise the extent to which they are at risk, and commented:
"Sometimes a victim can be unsure, as the perpetrator has worn them down so much that they no longer have the ability to make a rational decision at that time as fear can be overwhelming…Therefore it is important that for the wellbeing and safety of the victim that they are protected and decisions made for them…"
3.17 However, other respondents raised concerns that imposing an order without the consent of the person at risk may prove unlikely to be effective. One health, social work and social care respondent commented that:
"Yes [consent should be required], otherwise the person at risk may seek to make contact with the alleged perpetrator which may lead to the victim enticing (even if unknowingly) the perpetrator to breach…conditions."
3.18 Question 6 sought views on whether the criminal courts should have a power to impose a protective order on a person convicted of a criminal offence against a person at risk when sentencing the offender. A significant majority of respondents favoured providing the courts with such a power. 42 respondents said the criminal courts should be able to impose a protective order on conviction, while 11 respondents did not support providing them with such a power and 3 respondents either said they didn't know or provided an ambiguous response.
3.19 However, it is worth noting that there was a significant split between individual and organisational respondents on this question. Of the individuals who responded to this question, 27 favoured providing the courts with such a power, while only 1 opposed doing so. By contrast, 15 organisations were in favour of giving the courts such a power, while 10 organisations were opposed.
3.20 Those who favoured providing the criminal courts with such a power considered that it would provide them with a useful tool for protecting victims from further abuse that removed the need for a separate court process. One violence against women and girls/gender based violence partnership respondent commented:
"Yes, we believe that criminal courts should be able to give barring orders when issuing a community sentence or a custodial sentence. It will also reduce anxieties for the survivor, and see cost-savings and time savings as two processes are streamlined."
3.21 However, a number of respondents, particularly justice and legal sector respondents and victims' group respondents, were of the view that such a power was unnecessary and could even be counter-productive because a court can already impose a Non-Harassment Order which can be used to prohibit a perpetrator from returning to a home they share with a victim and prevent them from making contact or otherwise harassing or abusing them in such cases. One response, which was typical of those who opposed providing the courts with such a power, commented:
"No…we would not support giving the power to impose an EBO to a criminal court. The new Domestic Abuse (Scotland) Act 2018…contains a presumption on the court granting a non-harassment order (NHO) for the same by the COPFS, unless the court concludes that such protection is not necessary. Such an order can contain a direction that the perpetrator does not enter approach or be in the vicinity of the home and indeed, NHOs currently imposed in criminal proceedings can be construed equally widely.
We would therefore be concerned that the ability to impose an essentially, short-term, emergency order in the form of an EBO would confuse matters with the police, the COPFS and the courts, and interfere with the court's powers to impose a NHO under the new legislation."