Operation of Protective Orders
4.1 The consultation also sought views on a number of matters relating to the scope of any scheme of protective orders and how they will operate in practice. These are considered below.
Question 8: We would welcome views as to which persons should be capable of being made subject to measures to protect a person at risk of domestic abuse. Should such protection be limited to providing protection from abuse by a partner or ex-partner? If not, what other relationships or circumstances should be covered by such provisions?
4.2 There was a mix of views with regards the question of what relationships should be covered by the proposed protective orders. As set out in the table below, in general terms, consultation respondents' views can be characterised as falling into one of three categories: they either thought that the power should be restricted to cases involving partners and ex-partners, or that it should cover family members living in the same household, or that it should cover anybody living in the same household (so including, for example, unrelated people living in houses in multiple occupation):
|Relationships that should be covered by the protective orders||Number of respondents|
|Partners and ex-partners only||28|
|Any family members in the same household||9|
|Cohabitants/anyone living in a shared home||14|
4.3 Respondents representing victims' groups and violence against women and gender-based violence partnerships were particularly likely to support restricting the scope of the power to partners and ex-partners. Respondents supporting this approach often cited the Scottish Government's definition of domestic abuse and the fact that the domestic abuse offence in the Domestic Abuse (Scotland) Act 2018 is also restricted to partners and ex-partners. A number of respondents caveated this by commenting that the conditions that can be imposed by such orders should be capable of being widely drawn enough to ensure that protection is provided to the children or other family members of that partner or ex-partner. Some respondents said that, while they thought the power should only cover partners and ex-partners, there may be a need to separately consider whether legislation is needed to address intra-familial abuse. One victims' group respondent commented:
"Persons subject to measures should be limited to partners or ex-partners.
The definition of domestic abuse recognised in Scotland identifies domestic abuse as occurring in an intimate relationship between a current or former partner. It does not include abuse from other family members including adult children or extended family members. This is a challenging and complex issue and the dynamics should be explored in a separate consultation."
4.4 Set against this, some other respondents, highlighted that abuse could occur between, for example, parents and adult children, or people living in shared accommodation and thought that the powers should be wide enough to enable action to be taken in such cases. This view was more frequently held by individual respondents, though a number of organisational respondents from across different sectors also took this view. For example, one housing sector respondent commented:
"Domestic abuse does not just happen between partners, therefore all vulnerable persons / victims should be protected from abuse in and around their home, no matter the relationship to the abuser."
4.5 The consultation sought views on what the test should be that is applied by the courts (or the police) for making such an order.
Question 9: We would welcome views on what you think the test should be for deciding whether to impose measures to protect a person at risk of domestic abuse. In particular, do you think it should be a requirement that the person against whom the order is sought must have used or threatened violence against the person to be protected by the order, or do you think a wider test covering our modern understanding of what constitutes domestic abuse (i.e. behaviour likely to cause psychological, as well as physical, harm) should be used?
4.6 A number of themes emerged from responses to this question. Many individual respondents, in particular, referred to the importance of ensuring that the test covered controlling behaviour, financial abuse, emotional abuse and psychological abuse as well as physical harm. A significant number of respondents (23 in total) referred to the definition of a course of abusive behaviour in the offence contained in the Domestic Abuse (Scotland) Act 2018 as a starting point for any definition used in determining whether to impose a protective order.
4.7 Victims' group respondents were particularly likely to refer to the importance that any test of 'harm' to the person at risk does not impose a 'severity threshold' (for example, requiring that the victim is at risk of 'serious harm'). A number of respondents referred to risk indicator tools currently used by the police and others to assess the risk posed to someone by their partner/ex-partner such as the 'SafeLives checklist'.
4.8 There were also a minority of respondents who specifically referred to the importance of ensuring that the test was not more wide-ranging than necessary. A small number of individual respondents (4) stated that it was important that any test was objective and designed in such a way as to deter false or malicious allegations. One justice and legal sector organisation stated that if it is to be made a criminal offence for such an order to be breached, it is important that the test for imposing an order is "a high one".
4.9 The consultation sought views on what the scope of any prohibitions imposed by protective orders should be, including whether, as well as barring the suspected perpetrator from approaching or entering the home of the person at risk, they should be capable of being used to put in place other restrictions or prohibitions intended to prevent the subject of the order from abusing the person at risk, and whether the orders should be capable of making provision with respect to any children living with the person at risk.
Question 10: We would welcome views as to whether, as well as prohibiting the subject of the order from entering the person at risk's home, it should also be possible to impose conditions on the subject of the order to prevent them from contacting or approaching the person at risk, or prohibiting them from entering other specified locations (such as the person at risk's place of work or relatives' homes).
Question 11: Do you agree that, as well as enabling measures to be imposed to protect the person at risk, it should also be open to the police and courts to impose conditions requiring the subject of the order not to approach or contact any children living with the person at risk?
4.10 With regard to the question of whether the order-making power should enable the imposition of wider conditions than simply barring the subject of the order from returning to the person at risk's home, 65 respondents agreed that it should and 2 respondents said it should not. Consultation respondents highlighted in particular, that it was important that such orders should be capable of barring the subject of the order from making contact with the person at risk, or from approaching their place of work, college, or the homes of family members or close friends.
4.11 A number of respondents also highlighted the importance of ensuring that such orders can be used to make what might be regarded as supplementary provision with regards barring a person from returning to the person at risk's home. This might include requiring them to hand over any keys, prohibiting them from damaging or removing the property or personal effects of the person at risk, and prohibiting them from evicting or otherwise excluding the person at risk from the property.
4.12 There was also very widespread support for allowing these orders to be used to put in place measures to protect any children living with the person at risk. Of those respondents who answered this question, 55 respondents supported such an approach, while 4 respondents opposed doing so and 6 respondents said they didn't know or were unsure.
4.13 A number of the respondents referred to the aggravation concerning harm to a child contained in the Domestic Abuse (Scotland) Act 2018 and indicated that they thought that in order to be consistent with that Act in terms of recognising the harm caused to children by domestic abuse, provision should be made in this area. One children's group respondent commented that:
"It is critical that the proposed enabling measures are available to protect any child involved in the domestic abuse situation, as well as the adult victim. If this is not the case, the measures will be significantly out of step with the provisions to protect children in the new offence and the child's best interest's principle at the heart of the joint COPFS/ Police Scotland protocol on domestic abuse."
4.14 A number of respondents highlighted their view that children in such a situation will face direct risk of harm. For example, one victims' group respondent commented:
"Children experience all the same effects and risks as the non-abusive parent, and should be subject to the same protections. Children are also often used as part of the abuse, especially where there is on-going contact. Children exposed to domestic abuse need the protection of the courts."
4.15 Three respondents raised the question of how any protective order put in place would interact with existing child contact orders that may be in place. One respondent said that they considered it important that the requirements of any protective order should take precedence if there was any conflict between the requirements contained in it and in any child contact order.
4.16 The consultation sought views on whether breach of a protective order should be a criminal offence and, if so, what the maximum penalty should be.
Question 12: We would welcome views on whether it should be a criminal offence to breach measures put in place to protect a person at risk of domestic abuse.
Question 13: If you think breach of such measures should be a criminal offence, we would welcome views on what you think the maximum penalty should be.
4.17 Almost all respondents to the consultation thought that breach of a protective order should be a criminal offence. Of those who answered this question, 63 respondents supported making breach a criminal offence, while 2 respondents were opposed and 3 respondents said they did not know.
4.18 In setting out why they favoured making breach of an order a criminal offence, many respondents highlighted what they saw as the deterrent effect that it could have, as well as noting that it would provide the police with greater powers to intervene. One justice and legal sector respondent commented:
"Any breach should be treated as a criminal offence otherwise there would be little the police could use in terms of enforcement and it would also appear to send a weak message to the public regarding deterrence."
4.19 A number of respondents drew attention to the fact that breach of other, similar orders, such as non-harassment orders, and breach of bail conditions, are both criminal offences. One issue that attracted mixed views from the small number of respondents who commented on it was whether breach of a police-imposed order, as well as a court-imposed order, should be a criminal offence. One local authority respondent specifically stated that it should depend on whether the order was made by the police or courts, but another 'other' respondent noted that there was precedent at section 26 of the Anti-social Behaviour (Scotland) Act 2004 for breach of a non-court issued order being a criminal offence.
4.20 There were mixed views on what the maximum penalties should be for breach of a protective order. A significant number of respondents (20 in total), particularly those representing victims' groups and gender-based violence and violence against women partnerships, drew attention to the maximum penalty for breach of other court orders. Most commonly cited examples were the penalties for breach of a bail order and breach of a non-harassment order. One victims' group respondent, whose response was typical of many, commented:
"In line with other civil protective orders, and in recognition of the fact that this will be a short-term order, we would suggest a penalty, on summary conviction of imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both."
4.21. Many individual respondents highlighted what they saw as the importance of ensuring that breach of a protective order could result in a prison sentence. Suggestions as to the maximum penalty ranged from 3 months to 5 years. One justice and legal sector respondent suggested that where the breach of an order amounts to a substantive criminal offence in itself, consideration should be given as to whether any breach should be treated as a separate aggravation, as is the case where an offender breaches their bail conditions.
4.22 The consultation sought views on whether any legislation creating such protective orders should place a statutory duty on the police to refer a person at risk to support services.
Question 14: We would welcome views on whether there should be a statutory duty on the police, when making an application to the courts, or putting in place protective measures, to refer a person at risk to support services and, if so, how this should operate
4.23 There were mixed views on this proposal. Of those who answered this question, 29 respondents supported creating such a duty. A further 12 respondents were of the view that there should not be a statutory duty, but that as a matter of operational practice, the police should offer to refer a person at risk to support services if they wish to be. 8 respondents either provided an ambiguous response or said they didn't know, while 3 respondents simply stated that there should not be such a statutory duty.
4.24 Victims' groups, in particular, often made the point that while the police service (or others) should offer to refer a person at risk to support services if they wish such a referral to be made, it was important that the person at risk should retain control as to whether a referral is made. One victims' group respondent commented:
"The Police should always speak to the woman about making a referral to support services but it should not be 'forced' on her. Women will be at different stages of acceptance etc. and those who are not ready to accept help from support services should not be made to accept the referral."
4.25 Those who did not support a mandatory requirement being placed on the police to refer persons at risk to support services expressed a range of other concerns, including whether it would be compatible with their obligations under the General Data Protection Regulation (GDPR) and whether support service provision was sufficiently comprehensive in some parts of the country to make such a requirement practical. On the other hand, some of those who supported a duty to refer persons at risk to support services were concerned that there was a risk that the imposition of a protective order without accompanying support could actually increase the person at risk's longer-term risk of abuse.
4.26 The consultation also provided an opportunity for respondents to make any other comments that were not covered by the other questions about protective orders.
Question 15: Do you have any other comments you wish to make regarding the introduction of protective orders for people at risk of domestic abuse?
4.27 The following table summarises the issues most commonly raised by consultation respondents in response to this question:
|Summary of issue being raised||Number of respondents|
|Need for legal aid or other financial support for person at risk to address their longer-term housing needs when a protective order has been put in place||11|
|Need for training and guidance to be in place for those administering any protective orders scheme and/or persons at risk||8|
|General welcome for the idea of introducing a protective orders scheme||7|
|General doubts about the idea of introducing a protective orders scheme||7|
|Issues relating to transition between protective orders and any longer-term orders such as exclusion orders or non-harassment orders||6|
|Practical issues relating to the implementation of any protective orders scheme||5|
|Need to consider 'service generated risks' in implementing protective orders||4|
|Wider issues around access to housing and housing law||4|
4.28 As can be seen from the above table, the most frequently raised issue related to access to legal aid for the person at risk. Respondents who raised this were concerned that if protective orders are to be effective in helping to resolve a person at risk's longer term housing situation and ensure that they were able to choose not to continue living with their abusive partner, it is important that these people have access to financial support to bring a case in the civil courts if this is their preferred course of action. One victims' group respondent commented:
"Access to free legal advice and representation around obtaining civil protection orders should be available from the very beginning of an EBO and emergency applications to the court allowed and prioritised. Free legal advice and representation is crucial for women to achieve access to justice, realise their right to protection, and effectively provide support and empower women during this transitional stage."
4.29 The importance of ensuring training and guidance is in place to accompany any scheme of protective orders was also highlighted by a significant number of respondents. Different respondents highlighted different areas where such training or guidance may be helpful. For example, one justice and legal sector respondent noted the importance of ensuring that guidance for people for whose protection an order has been made on their possible options would be very important if the scheme was to ensure that long-term protection is provided:
"The proposals envisage a mix of civil and criminal options. The multiplicity of options for seeking protective orders runs the risk of leaving individuals unsure what orders they should seek. It will be important to have clear, publicly available advice and guidance."
4.30 Other respondents referred to the need for training to be in place for members of the judiciary and police forces. One gender-based violence and violence against women partnership commented:
"Training of the police will be crucial to embed an understanding of how EBOs fit into the appropriate police response to domestic abuse. This should link into wider police training particularly that related to the new Domestic Abuse offence as recognising and responding to coercive behaviours will be important. For the judiciary the ongoing training on the civil and criminal aspects of domestic abuse will be important in their assessment of whether or not to grant a continuation of an EBO."
4.31 Some respondents used their answers to this question to reiterate either their support or their doubts or opposition to the introduction of protective orders for people at risk of domestic abuse. One individual respondent whose response was characteristic of many who wished to emphasise their support for the introduction of the orders, commented:
"I think that this would be a positive step in providing safety for women and children from further exposure to domestic violence."
4.32 Those who expressed doubts about, or opposition to, the proposals contained in the consultation paper in their answer to this question typically highlighted either concerns that the existence of such orders might encourage false allegations of abuse, including from those who are themselves perpetrators of abuse. One response from a gender-based violence and violence against women partnership respondent, that highlighted both of these concerns, said the following:
"…we have to bear in mind that a man could, presumably, make an allegation against his female partner that he was at risk, and she would be the subject of ejection or whatever is proposed. There are very effective remedies available, very quickly, through the civil courts now, and there is a zero tolerance approach to allegations of domestic abuse in place for the police, so they now take action with criminal sanctions all the time. I'm not sure what apparent unmet need is driving this move to greater powers by the police."
4.33 A point made by several victims group respondents concerned the need to ensure that any protective order put in place by the courts was in place for long enough to ensure that there was no gap between that order expiring and any longer-term court order coming into effect to ensure the person at risk's protection. This was often linked with the issue of access to free legal advice referred to at paragraph 4.28 above. One victims' group respondent, whose concerns were typical of those who raised this issue, commented:
"It is important that no gap in protection exists between an EBO ending and the commencement of a relevant protective order a woman will need to obtain through the court."
4.34 A number of respondents raised issues relating to how any protective orders scheme is implemented. These ranged from very general points, such as the importance of ensuring effective information sharing between different agencies, the need for consistent support to be available to persons at risk to assist them in considering their longer-term accommodation options and the possibility of learning from the implementation of domestic violence prevention orders in England and Wales to more specific questions, for example, highlighting the need to address how any order affects the parental rights of a person made subject to an order.
4.35 Several respondents drew attention to either the general need to ensure that adequate resourcing/funding is in place to enable implementation of any protective orders scheme, or to specific funding issues that would require to be addressed when any scheme is implemented. These included a general need to ensure that organisations which provide support to people experiencing domestic abuse are sufficiently resourced to assist those for whose protection an order is made in addressing their longer-term housing needs, and specific pressures, such as the impact of an increase in civil applications to courts on court business more generally.
4.36 A number of respondents highlighted the need to be mindful of what are sometimes described as 'service generated risks' – that is to say, any increase in risk to a victim that may be caused by an intervention, in implementing protective orders. One gender-based violence and violence against women partnership noted that the scope for perpetrators of abuse to make allegations against victims with the intent of having them removed from a shared home had to be considered, while a housing respondent and an individual respondent both drew attention to what they saw as the risk that the very act of making an order against a suspected perpetrator of abuse could, in some circumstances, increase the risk of repercussions for the person at risk.
4.37 Four respondents, three of which were local authorities, raised issues relating to housing. Two of these related to the issue of joint tenancies with two local authority respondents stating that there should be reform of the Housing (Scotland) Act to enable a joint tenancy to be converted to a sole tenancy where one of the joint tenants has perpetrated domestic abuse against the other. One health, social care and social work respondent suggested that housing tribunals, rather than civil courts, could be made responsible for taking decisions on whether to make a protective order and one local authority respondent said that consideration should also be given to financial support for those remaining in the home in terms of e.g. access to universal credit and delays associated with change of circumstances.
4.38 A number of other matters were raised by a small number of respondents (three or fewer) in answering this question. These included the need for an awareness raising strategy to ensure those at risk knew that they could approach the police about having an order put in place, issues relating to the right to appeal a court's decision on an application for a protective order, the need for monitoring and evaluation of how any scheme put in place works in practice, the importance of considering the particular issues facing male and LGBT victims of domestic abuse, as they considered that they can be overlooked given the focus on women in heterosexual relationships when developing policy on domestic abuse, and a suggestion that a 'domestic abuse register', similar to the so-called 'sex offenders register' could assist in tackling domestic abuse.