Publication - Research and analysis

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

Published: 31 Jul 2020
Justice Directorate
Part of:
Children and families, Law and order

An analysis of responses to a consultation on the creation of new protective orders to provide greater protection for people experiencing domestic abuse

30 page PDF

453.3 kB

30 page PDF

453.3 kB

Protective orders for people at risk of domestic abuse: consultation analysis
Equal Opportunities, Financial Implications, and other impacts

30 page PDF

453.3 kB

Equal Opportunities, Financial Implications, and other impacts

5.1 The consultation also sought views and information from consultation respondents on matters that will inform the preparation of impact assessments for any future legislation which is brought forward to implement a protective orders scheme.

5.2 There were two questions about the impacts of the proposed scheme on equality issues:

Do you consider that any of the reforms proposed in this paper will have a particular impact - positive or negative - on a particular equality group (e.g. gender, race, disability, sexual orientation)

Are there any other issues relating to equality which you wish to raise in relation to the reforms proposed in this paper?

5.3. The most frequently made point in response to this question was that new powers to remove suspected perpetrators of domestic abuse from a home they share with a person at risk are likely to be of particular benefit to women and children, as it is known that women are disproportionately likely to experience domestic abuse. In total, 19 respondents made reference to this, and it was particularly likely to be made by groups representing victims and violence against women and gender based violence partnerships. One victims' group respondent whose comments reflect those made by many, stated:

"the reforms proposed in this consultation are likely to have a positive impact on women (and their children). Homelessness resulting from domestic abuse is gendered, women make up almost 80% of homeless applicants in this category. These reforms can lead to the prevention of women and children's homelessness by removing the perpetrator from the home for a period of time allowing women time and support to consider their options. These reforms can reduce the considerable and additional impact of homelessness on women and children's health and wellbeing who have experienced domestic abuse. As well as prevent the disruption to children's education, access to support networks and enormous financial and emotional cost of losing home and possessions."

5.4 Six respondents made the point that, as anyone can experience domestic abuse, it was important that the law should treat all victims the same irrespective of their protected characteristics. This should not be seen as necessarily contradicting the view expressed by others that women are at a significantly greater risk of domestic abuse. One local authority respondent stated:

"As the reforms proposed will, if adopted, apply to individuals in all protected characteristic groups they are considered to be neutral in terms of their impact on all equality groups.

In practice however as the majority of instances of domestic abuse are perpetrated by man against women, it is anticipated that the measures proposed will be of particular benefit to women and children at risk of domestic abuse."

5.5 Other points raised by a smaller number of respondents included 3 individual respondents who expressed concerns about particular issues facing male victims of domestic abuse, two respondents who highlighted the particular issues facing victims of domestic abuse who have insecure immigration status, and two respondents who stated that LGBT people have the same risk of experiencing domestic abuse as women in heterosexual relationships and over 80% of transgender people have experienced domestic abuse. They stated that it was important that communications on this took account of the experiences of LGBT people and do not focus solely on men's violence against women.

5.6 Other matters that were raised by a single respondent included noting that people with disabilities are, in their view, at increased risk of experiencing domestic abuse and, in the case of people with physical disabilities, may face greater difficulty in finding suitable housing and that people from some minority ethnic groups are much more likely to experience domestic abuse in the context of forced marriage.

5.7 The consultation sought views on consultees' views on the financial implications of the protective orders scheme proposed in the consultation paper.

Do you have any comments or information on the likely financial implications of the introduction of protective orders for the Scottish Government (Police Scotland, Scottish Courts and Tribunals Service, Scottish Prison Service, COPFS), local government or for other bodies, individuals and businesses?

5.8 Responses to this question were inevitably quite general and high-level for the most part, both because the majority of respondents may not be in a position to offer views on the detailed financial implications of the proposals, and because the exact costs of the scheme would depend on how it is implemented.

5.9 Eleven respondents drew attention to what they saw as either the potential for a protective orders scheme to produce long-term savings by enabling intervention to prevent domestic abuse to be taken at an earlier point, or the fact that the costs of implementing such a scheme require to be set against the costs, both financial and in terms of the impact on victims of abuse and society more generally, of failing to take action.

5.10 Six respondents from a variety of groups said that there was a need to increase resources and support for victims of domestic abuse to deal with what they anticipate will be an increase in demand for support arising from the introduction of any scheme for protective orders.

5.11 Four respondents specifically highlighted the issue of access to legal aid or advice for persons at risk of abuse, to enable them to take appropriate steps to secure their longer-term safety. Respondents raising this issue highlighted that without such support, any protective orders scheme may not succeed in ensuring that persons at risk of abuse are able to take action to address their longer-term housing needs and one respondent said that, as a matter of fairness, it was not appropriate that people experiencing abuse should be expected to meet the cost of legal action required to secure their safety.

5.12 Other points made by respondents included the need for funding for training for those involved in administering the scheme, and for work to raise public awareness to encourage those at risk of abuse to come forward to seek help. Two respondents also noted that there could be costs for individuals who are barred from returning home as a consequence of their need to secure alternative accommodation. Some respondents, particularly justice and legal sector respondents, also made specific points about the likely financial impact of the scheme their organisation.

5.13 The consultation paper also sought input on how the proposals would impact on island communities, human rights, local government and sustainable development.

Do you consider that any of the proposals would have an impact on island communities, human rights, local government or sustainable development?

Island communities

5.14 In total, 18 respondents comments on how the proposals contained in the consultation paper could impact on island, remote and rural communities. The most commonly highlighted issues were concerns that either a lack of support services or increased difficulties in accessing support services, could make the implementation of protective orders more difficult in island, remote and rural communities (a point made by 7 respondents, the majority of which were from victims' groups and violence against women or gender-based violence partnerships). One victims' group respondent commented:

"These proposals may have a particular impact on island communities in Scotland. This is due to potential barriers in accessing services, including police, social services, solicitors and support services, particularly in small rural communities and/or remote communities…For example, in a small rural community, there may only be one firm of solicitor undertaking this type of work and accordingly a conflict could arise if both parties were to seek to instruct them."

5.15 Another point that was raised by a number of respondents (6 in total, from a range of backgrounds) was that the nature of some small island, remote and rural communities may make victims of abuse more reluctant to report or seek help. One individual respondent commented that in island communities:

"…anonymity is rare and having to cross paths with the accused and their family/friends plays a big part in reporting to the police."

5.16 A number of respondents also took the view that the nature of life in some small island and remote communities could make the operation of protective orders more difficult. Points made by respondents included that the small size of some such communities could make it difficult of the suspected perpetrator was excluded from certain geographic locations or required not to enter particular streets. It was also noted that particular difficulties could arise where the individuals work and live together on e.g. a croft, smallholding or farm. One housing sector respondent commented:

"On island communities it may be harder for people to adhere to some aspects of exclusion orders due to size of area, location and availability of service, work opportunities etc and there may be limited alternative housing / accommodation available."

5.17 However, five other respondents, while noting the difficulties faced by those experiencing domestic abuse in island, remote and rural communities, took the view that protective orders could be especially useful for people experiencing abuse in these communities, by providing another means of protecting them from the risk of abuse. One victims' group respondent commented:

"Hopefully by ensuring the appropriate introduction of EBOs and a strengthening of civil protection orders, victims in rural and island communities will have more options available. Victims in rural or island communities face particular issues relating to their geography and can be under far greater pressure than those in an urban context. We are aware that some of our clients have faced particular challenges and difficulties being safe in their communities that the provisions of EBOs could help alleviate."

5.18 The other issue concerning island, remote and rural communities made by four respondents was that any scheme which requires one or other party to find alternative housing may create particular difficulties in small, remote communities where there is a shortage of housing in the area. One housing sector respondent commented:

"On island communities it may be harder for people to adhere to some aspects of exclusion orders due to size of area, location and availability of service, work opportunities etc and there may be limited alternative housing / accommodation available.

Councils and other landlords may need to provide alternative accommodation for abusers and there may be increased demand on homeless services / temporary accommodation."

Human Rights

5.19 Sixteen respondents referred to matters relating to human rights in their response to this question.

5.20 The most common observation made by respondents, particularly those representing victims groups or violence against women and gender-based violence groups, raised by 7 respondents in total, was that the introduction of a scheme of protective orders for people at risk of domestic abuse that enables a suspected perpetrator to be barred from returning to their home is required to meet Scotland's obligations under the Istanbul Convention on Violence Against Women. One victims' group commented:

"In the Istanbul Convention (article 52) it states that victims of domestic abuse are protected from immediate danger without having to vacate their homes. This includes EBOs and this would enable Scotland to meet its human rights obligations in relation to Article 52"

5.21 Four respondents made comments noting that any scheme will need to balance the rights of a person who is suspected of domestic abuse (bearing in mind that the order will impact on their right to private and family life) and the rights of a person believed to be at risk of domestic abuse, and in particular the need to ensure they are protected from abuse. One local authority respondent commented:

"The proposals have potential implications for the rights of perpetrators / suspected perpetrators e.g. they make become homeless and lose access to family life as a consequence of an order barring them from living in their previous home. This has however to be balanced against the need to protect the rights of victims of domestic abuse, including children particularly regarding personal safety."

5.22 Two individual respondents expressed specific concerns relating to how any such protective orders would impact on child contact arrangements, highlighting what they said was the risk that false allegations would be made by people wishing to prevent their ex-partner from contacting their children, while one respondent said that they considered there were particular concerns about human rights if it is to be possible for an order to be made contrary to the wishes of the person whom it is intended to protect (see question 7 above).

Local authorities

5.23 The impact of the proposals on local authorities housing was raised by 4 respondents.

5.24 All respondents who referred to the impact of the proposals on local authorities in answering this question referred to its potential to impact on local authorities with regards the responsibility they may have for finding alternative accommodation for persons barred from returning to their home.

5.25 Three respondents also referred to the impact on local authorities which may result from the need to review and update processes, procedures and guidance associated with domestic abuse as a result of the introduction of protective orders, while one respondent said local authorities may have to provide additional funding to support people experiencing domestic abuse if more people come forward as a result of the introduction of protective orders. One violence against women and gender-based violence partnership respondent noted:

"The proposals are considered to have potential implications for local government in terms of the need to review current practice in supporting victims of domestic abuse including, working with and funding partner organisations to do this. They may also have direct resource implications for local authorities in respect of the potential need to provide accommodation for individuals barred from their former family home."

Sustainable development

5.26 No respondents indicated that they considered the proposals had any implications for sustainable development.