Chapter 13: Banning and temporary banning orders
1. This chapter provides guidance on applications for banning orders and temporary banning orders. These orders will only be granted where the adult at risk is in danger of being seriously harmed, and where banning the subject of the order from a specified place is likely to safeguard the adult's well-being and property more effectively than would the removal of the adult at risk. Any decision to grant or refuse to grant a banning or temporary banning order can be appealed to the sheriff principal.
What is a banning order or temporary banning order?
2. A banning or temporary banning order, which bans the subject of the order from a specified place, may have other conditions attached to it, and may last for a period of time not exceeding 6 months. The purpose of these orders is to better safeguard the adult at risk's well-being and property more effectively than would removing the adult from a place where they are at risk of harm from another person.
3. There is no requirement under the Act for the council to have previously arranged a visit under Section 7, an interview under Section 8, or medical examination under Section 9 or to have applied for either an assessment or removal order. Protection orders may be applied for at any time in the process, depending on the individual case. Any proposed action must be judged on a case by case basis, including the use of other legislation, and be necessary to provide benefit to the individual.
4. Section 19 provides for the granting of a banning order, and attachment of conditions to such an order, by the sheriff. A banning order bans the subject of the order ("the subject") from being in a specified place. The subject of the order may be a child. Section 21 allows the sheriff to grant a temporary banning order pending determination of an application for a banning order.
5. A banning or temporary banning order may:
- ban the subject from being in a specified area in the vicinity of the specified place;
- authorise the summary ejection of the subject from the specified place and the specified area;
- prohibit the subject from moving any specified thing from the specified place;
- direct any specified person to take specified measures to preserve any moveable property owned or controlled by the subject which remains in the specified place while the order has effect;
- be made subject to any specified conditions; and
- require or authorise any person to do, or to refrain from doing, anything else which the sheriff thinks necessary for the proper enforcement of the order.
6. A condition specified in an order may authorise the subject of the order to be in a place or area from which they are banned, but only in specified circumstances, for example while being supervised by another person or during specified times.
What to consider before applying for a banning order or temporary banning order?
7. Action can only be considered where an adult is an adult at risk for the purposes of the Act. In terms of the order, the adult in these circumstances becomes the "affected adult at risk" in terms of section 41 of the Act. (For further information on what constitutes an adult at risk please refer to Chapter 3).
8. Before the council or any person makes a decision or undertakes any function under the Act, they must have regard to the principles of the Act, in particular that any action will be the least restrictive option and be necessary to provide benefit to the adult. The adult's wishes and needs must always be considered. (For further information on the principles of the Act, please refer to Chapter 3).
9. Where a Council is applying for an order it must consider whether the adult at risk should be referred to an independent advocacy organisation or provided with other services. (For further information on advocacy and other support services, please refer to Chapter 5).
10. The use of other legislation may also be considered, for example, social work, child protection, mental health, civil law or criminal justice legislation.
11. It would be good practice to ensure, wherever practicable, the adult is kept fully informed at every stage of the process e.g. whether an order has been granted, what powers it carries, what will happen next, whether they have the right to refuse, what other options are available etc.
12. If it is considered that the adult will refuse consent to the granting of the order the council should re-consider the merit of the application. This may be in the form of a multi-disciplinary multi-agency meetings. Protection orders should be only used when all other options have been explored and exhausted.
13. If the council decides to pursue an application where the affected adult has capacity to consent and has made known their refusal to consent, then the council must prove that the adult has been "unduly pressurised" to refuse to consent to the granting of an order.
14. Where the adult does not have capacity to consent, the requirement to prove undue pressure does not apply. However evidence of lack of capacity will be required by the Sheriff. Where the adult is, or appears to be, incapable of consent, it would be good practice to approach the Office of the Public Guardian to ascertain whether a guardian or attorney has powers to consent on their behalf. Where no guardian or attorney has such powers, consideration may be given to whether it is appropriate to use the provisions in the Adults with Incapacity (Scotland) Act 2000 or Mental Health (Care and Treatment) (Scotland) Act 2003.
15. Where consideration is being given to applying for an order which bans a child, this should include prior consideration of making a referral to the Children's Reporter where it is believed there would be an effective case to answer. If the circumstances are such that is a need to act urgently, then a referral to the Children's Reporter should be made at the same time as the application for an order.
Who can apply for an order?
16. Section 22 provides that an application for a banning order may be made by or on behalf of:
- an adult whose well-being or property would be safeguarded by the order; or
- any other person who is entitled to occupy the place concerned; or
- where section 22(2) applies a Council.
17. Under Section 22 (2) the council is under an obligation to apply for a banning order if it is satisfied:
- as to the matters set out in section 20 of the Act;
- that nobody else is likely to apply for a banning order in respect of the circumstances which caused the council to be satisfied as to the matters set out in Section 20; and
- that no other proceedings to eject or ban the person concerned from the place concerned are pending before a court.
18. The applicant may also apply for a temporary banning order at the same time as making application for a banning order, or at a later date. This allows an order to be granted pending final determination of a banning order application and may be used in cases where it is deemed inadvisable to wait until a full hearing on the banning order application takes place.
19. If the adult at risk is the applicant, it would be good practice for the council to assist with the application.
What are the criteria for granting a banning order or temporary banning order?
20. Section 20 of the Act provides that a sheriff may grant a banning order only if they are satisfied that:
- an adult at risk is being, or is likely to be, seriously harmed by another person;
- the adult at risk's well-being or property would be better safeguarded by banning the other person from a place occupied by the adult than it would be by moving the adult from that place; and that either:
- the adult at risk is entitled, or permitted by a third party, or
- neither the adult at risk nor the subject of the order is entitled, or permitted by a third party to occupy the place from which the subject is to be banned.
21. The subject of the banning order may not necessarily be living with the adult at risk. The point of the banning order is to put some distance between them to protect the adult at risk from further serious harm.
22. The order allows a person to be banned from being in a specific place, usually where the adult at risk lives. The main test of the order is whether the person is, or is likely to be, seriously harming an adult at risk. The banning order may ban the subject from contact with the adult at risk for up to a maximum period of six months, and may include other conditions that a sheriff thinks appropriate. For example, this period could provide an opportunity for the adult at risk and the subject to undergo mediation to explore future living arrangements, or to secure the adult at risk's future on a permanent basis.
Who can be banned from a property?
23. Section 23 provides that the granting of a banning or temporary banning order does not affect the adult at risk's rights, as a non-entitled spouse, to occupy a home within the place from where the subject of the order is banned under the Matrimonial Homes (Family Protection)(Scotland) Act 1981. This means that a banning order, despite affecting the subject's right to occupy the property in question, does not affect any rights that the adult at risk has under the 1981 Act.
24. Where the adult at risk is entitled to occupy a place, their occupancy rights are not affected if their husband, wife, partner etc. is banned from the place. Where the adult at risk has no occupancy rights and the proposed subject of the order does have these rights, then the subject cannot be banned from the place.
25. Banning orders may also be applied in respect of public places and may also be used where neither the adult at risk nor the subject has a right to occupy a property.
How long can a banning order be granted for?
26. A banning order can last for any period up to a maximum of six months.
27. The applicant should consider what would be the shortest period possible in line with the general principles of the adult at risk's wishes and what would be beneficial to the adult.
How long can a temporary banning order be granted for?
29. Section 21(4) of the Act provides that a temporary banning order expires on the earliest of the following dates:
- the date the sheriff determines the application for the related banning order; or
- the date the sheriff is required to determine the banning order within the period specified in Court Rules;
- the date on which it is recalled; or
- any specified expiry date.
30. A temporary banning order may also be recalled or varied.
What conditions can be attached to an order?
31. A banning order may specify a number of matters and may have conditions attached.
32. Section 19 enables the order to be tailored to allow contact between the subject and the adult at risk under supervised conditions, perhaps as a first step to resolving the issue. This may include supervision of the subject in the area or place they are banned from to allow some form of mediation between the subject and the adult at risk, or to allow the subject access to the adult at risk's children or family. The conditions for this contact could be specified in an Access Plan, showing dates, times and location.
Attaching a power of arrest
33. Section 25 permits the sheriff, at the time of granting the banning or temporary banning order, to attach a power of arrest. The sheriff will make such a decision based on the facts and circumstances of the case presented.
34. The evidence for this would be based on the likelihood of the subject breaching the banning order or any of the conditions attached to the banning order. If the order or any of these conditions were breached the subject may be arrested without warrant if a constable reasonably suspects them to be in breach of the order and that they are likely to breach the order again if not arrested. (See also paragraphs 59 to 63).
35. Where a banning or temporary banning order has been granted without an attached power of arrest and the facts and circumstances of the case have changed since the order was granted, then application by way of a motion in the process may subsequently be made to the sheriff to attach a power of arrest. (See also paragraphs 47 to 50).
36. Under Section 41, the applicant for the banning order or temporary banning order (or application for variation or recall) should give notice in writing of the application to the subject of the order, and to the affected adult at risk (where that person is not the applicant). This notification should advise the subject of the order of their right to be heard or represented before the sheriff. Notification to the affected adult at risk (where that person is not the applicant), should advise of their right to be heard or represented before the sheriff, and to be accompanied by a friend, relative or any other representative chosen by the adult. (See also paragraphs 40, 45 and 46).
37. Section 19(4) provides that, where it is proposed to attach a condition authorising the subject of the order to be in the place or area from which they are banned during specified circumstances, the sheriff must have regard to any relevant representations made by:
- the applicant for the order;
- the adult at risk;
- any other person who has an interest in the adult at risk's well-being or property; and
- the subject of the application.
38. Where the adult concerned has indicated that they do not wish legal representation, or it appears that they do not understand the process, this should be indicated to the court.
39. Under Section 41(6), the sheriff also has discretion to appoint a safeguarder before deciding on the order. The role of the safeguarder is to safeguard the interests of the affected adult at risk in any proceedings relating to an application. The sheriff may instruct the safeguarder to report on the issue of consent.
40. In cases where the council becomes aware that the person suspected of harming the adult may also attend e.g. where the adult wishes to be accompanied by that person, the council should inform the sheriff prior to the hearing being held. The sheriff will then be able to decide whether to apply the provisions available under the Vulnerable Witnesses (Scotland) Act 2004.
Can an order be granted or enforced without an adult's consent?
41. The principles in sections 1 and 2 of the Act must always be taken into account. Where the adult at risk has refused to consent, section 35 provides that the sheriff in considering making an order, or a person taking action under an order, may ignore the refusal where the sheriff, or that person, reasonably believes:
- that the affected adult at risk has been unduly pressurised to refuse consent; and
- that there are no steps which could reasonably be taken with the adult's consent which would protect the adult from the harm which the order or action is intended to prevent.
42. There are essentially three stages that require that the issue of consent be considered. Firstly, a council (or other person) must believe that there are no steps which could reasonably be taken with the adult's consent before proceeding to apply for an order. Secondly, if an application is made and consent to the granting of the order is refused, then the sheriff must consider the test referred to in paragraph 41 above and the onus will be on the applicant for the order to satisfy the sheriff in that regard. Thirdly, if an order is granted, a person must not take action to carry out or enforce that order without separately considering the test referred to in paragraph 41 above. Where the adult does not have capacity to consent, the requirement to prove undue pressure does not apply. However evidence of lack of capacity will be required by the Sheriff.
43. Section 35(4) gives an example of what may be considered to be undue pressure. This states that an adult at risk may be considered to have been unduly pressurised to refuse to consent if it appears that:
- harm which the order or action is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust; and
- that the adult at risk would consent if the adult did not have confidence and trust in that person.
44. However Section 35(5) makes it clear that this is not the only type of behaviour that would constitute undue pressure. Undue pressure can also be applied by an individual who may or may not be the person suspected of harming the adult, such as a neighbour, carer or other person in whom the affected adult has confidence and trust. For example, a relative who is not suspected of causing the harm but does not, for whatever reason, wish the council to apply for an order may place undue pressure on the affected adult to refuse consent. Undue pressure may also be applied by a person that the adult is afraid of or a person whom the adult does not trust.
Disapplication of notification and intimation
45. Where the council (or other person applying for an order) considers that it would be prejudicial to the adult at risk's welfare for the certain persons to attend a hearing, then the council should ask the sheriff (under section 41(2)) to dispense with some or all of the requirements under section 41(3) to (7) of the Act. These provisions include the requirement to intimate the application to the person who is the subject of the application and to the affected adult at risk (section 41(3)). The council should provide the sheriff with its reasons in coming to this conclusion to enable the sheriff to decide whether it is appropriate to dispense with intimation and any other requirements in the circumstances. The sheriff must be satisfied that:
- by doing so this will protect the adult from serious harm; or
- this will not prejudice any other person affected by the disapplication.
46. Section 41(2) also provides that the sheriff may disapply the requirement in section 19(4) of the Act to have regard to any relevant representations made by the persons listed in paragraph 37 of this Code in those cases where a condition is to be specified in the banning order authorising the subject to be in the place or area from which they have been banned for specified circumstances (under Section 19(3)). Again the sheriff has to be satisfied as to the matters listed above.
Application for variation or recall of an order
- the subject of the order;
- the applicant for the order;
- the adult at risk to whom the order relates; or
- any other person who has an interest in the adult at risk's well-being or property.
48. The sheriff may vary or recall an order if satisfied the variation or recall is justified. The sheriff must be satisfied that there has been a change in the facts or circumstances in respect of which the order was granted or, as the case may be, last varied.
49. A variation may not vary the date on which the order expires:
(a) in the case of a banning order, beyond the date which is 6 months after the date on which the order was granted;
(b) in the case of a temporary banning order, beyond the date by which section 21(3) requires the sheriff to determine the related application for a banning order.
50. A banning or temporary banning order can be varied any number of times within the specified period. If the sheriff recalls the order then the terms of the order cease to have effect. The grounds therefore for recalling the order should show that further harm is not likely to take place.
Right of appeal against a decision to grant or a refusal to grant an order
51. Section 51(2) provides for a right of appeal against a decision to grant, or a refusal to grant a banning order. An appeal must be made to the sheriff principal in the first instance. The sheriff principal's decision may be appealed to the Court of Session, but only by those who were party to the appeal to the sheriff principal.
Temporary banning order
52. An appeal against a sheriff's decision to grant, or refuse to grant, a temporary banning order may be made to the sheriff principal. However an appeal is only competent with the leave of the sheriff. An appeal against the sheriff principal's decision to the Court of Session is only competent with the leave of the sheriff principal.
How long does an order continue to have effect?
53. Where a sheriff principal decides to quash a banning order or temporary banning order, the order will continue to have effect until either the end of the period for appeal (if no appeal is made) or, where an appeal is made, when it is abandoned or where the decision is confirmed.
54. Alternatively, the order will continue to have effect until it expires or, in the case of a temporary banning order, the sheriff principal refuses leave to appeal against the decision to quash the order.
Who does the applicant have to notify of the granting, variation or recall of an order?
55. Under Section 26 where the sheriff grants a banning order, temporary banning order, variation or recall, the applicant (where not the adult at risk) must notify the adult at risk and such other person specified by the sheriff, by delivering a copy of the order (and any power of arrest attached) or the varied order or order of recall to the adult and/or other person(s) specified by the sheriff. However, failure to deliver an order does not invalidate it.
56. Where a power of arrest has been attached, section 27 provides that the police, via the chief constable, must be notified, as soon as possible, by delivering a copy of the order and any power of arrest attached.
Who is responsible for preserving the banned person's property during an order?
57. Section 19(2) (d) of the Act states that a banning order may also direct any specified person to take specified measures to preserve any moveable property owned or controlled by the subject which remains in the specified place while the order has effect.
58. The Act allows for specific measures to be taken to preserve the subject's property. The applicant should obtain an inventory of moveable property belonging to the subject of the banning order that can remain in the adult at risk's home or specified place, where the subject is banned. It would be good practice to obtain a signature from the subject confirming that the inventory is correct. The subject can formally request any of these measures. This may be to protect property such as pets or computers.
What happens if an order without an attached power of arrest is breached?
59. Where the subject of the order breaches the order then this will be dealt with on the basis of a failure to comply with an order of court. As a result of this, if established, the subject of the order can be held in contempt of court. The applicant (and the adult at risk where not the applicant) may raise a normal action for breach of an order. Any proceedings in this regard should be accompanied by confirmation from the procurator fiscal that no criminal proceedings are to be commenced in respect of the facts and circumstances that are to form the subject matter of breach proceedings. An adult at risk is not required to report any breach of an order.
60. Where the person breaching the order has also committed a criminal offence, then this will be dealt with in the usual manner. Proceedings will be instigated by way of a petition by the procurator fiscal, following normal court procedures.
61. Where a Banning Order is breached and the basic sanctions are ineffective in deterring the subject of the Order, other options may be considered. Where no powers of arrest are in place, application to vary the Order under section 24 should be considered to include this power.
62. In such cases the Local Authority and its partners may need to consider other civil and criminal law routes to protect the adult at risk of harm. As with any proposed action, there will be professional and ethical considerations. The examples given are not exhaustive and are in no way recommendations in all cases. However they may be applicable depending upon the circumstances of individual cases. These include:
- Where a crime has been committed and the Crown Office and Procurator Fiscal Service (COPFS) intends to prosecute, multi-agency partners could consider asking the Sheriff to consider bail conditions to protect the adult at risk from further harm.
- Section 17 of the Sexual Offences (Scotland) Act 2009 in relation to mental disorder.
- Guardianship under Adults with Incapacity, where there is a task or issue specific capacity concern regarding the person's ability to protect themselves from those placing them at risk.
- Anti-social Behaviour Order (ASBO)
- Breach of the Peace
- Non-harassment Order
- Forced Marriage Protection Order
- Common Law crime of threats
What happens if an order with an attached power of arrest is breached?
64. The power of arrest becomes effective only when served on the subject of the order and will expire at the same time as the order.
65. Under section 28, where a banning order or temporary banning order has a power of arrest attached, a constable can arrest the subject of an order if the constable:
- reasonably suspects the subject to be breaching, or to have breached, the order; and
- considers that there would, if the subject were not arrested, be a risk of the subject breaching the order again.
66. In other words, the constable cannot simply arrest the subject for having breached the order alone.
What must the police do when someone is arrested under Section 28?
67. Section 28(2) requires that the arresting officer must:
- immediately inform the arrested person of the reason for the arrest; and
- take the arrested person as quickly as is reasonably practicable to a police station.
68. Section 29 requires that the officer in charge must detain the arrested person in custody until the person is:
- accused on petition or charged on complaint with an offence in respect of the facts and circumstances which gave rise to the arrest; or
- brought before the sheriff under section 32 of the Act.
69. Section 30 requires the officer in charge to ensure that the detained person is informed immediately of:
- their right to have, on request, intimation of detention and the place of detention given, without delay, to-
- a solicitor, and
- one other person reasonably named by the person,
- the right to have, on request, intimation given to a solicitor that the solicitor's professional assistance is required;
- the right to have, on request, the solicitor informed, as soon as the information is available, of the court to which the person is to be taken and the date when that is to happen; and
- the right to have, on request, a private interview with the solicitor before any appearance before the sheriff.
70. The police must pass the facts and circumstances to the procurator fiscal. The fiscal will then decide if there is sufficient evidence to take any criminal proceedings (e.g. assault towards the adult at risk) regarding the incident which gave rise to the arrest for breaching the banning order.
Breaching of order with an attached power of arrest - child
71. The subject of the banning order may be a child. Section 30 provides that where the officer in charge knows or believes that an arrested person is a child, then the officer must, where practicable, give intimation without delay of the detention and place of detention to any person known to have parental responsibilities and rights in relation to the child. Such person must be permitted reasonable access to the child. It would be expected that the police would also make a referral to the Children's Reporter.
Police duty to keep record of detention
72. Under section 31, the officer in charge must ensure that the following matters are recorded in connection with the detention of the subject of the order:
- the time at which the person was arrested;
- the police station to which the person was taken;
- the time when the person arrived at that police station;
- the address of any other place to which the person is, during the detention, taken;
- the time when the person was informed of their rights;
- the time and nature of any request made by the person to exercise any of those
- rights; and
- the time and nature of any action taken by a police officer under section 30.
Duty to bring detained person before sheriff
73. Section 32 makes clear that the procedure under the Act would only apply in circumstances where the procurator fiscal has not yet decided to take criminal proceedings against the arrested person as a result of the facts leading to the arrest.
74. The arrested person should be brought to court, in the district in which the person was arrested. This should be on the next court day on which it is practicable to do so but that does not prevent the sheriff dealing with the matter if sitting on a non-court day for the disposal or criminal business.
Information to be presented to sheriff
75. Under section 33, the fiscal must present a petition to the sheriff setting out various details of the case and requesting the sheriff to consider whether a longer period of detention is justified. The petition should:
- give the detained person's particulars;
- state the facts and circumstances which gave rise to the arrest;
- give any information known to the fiscal:
- about the circumstances which gave rise to the banning order or temporary banning order concerned, and
- which is relevant to an assessment of whether the detained person is likely to breach that order: and
- request the sheriff to consider whether a longer period of detention is justified.
Authorisation of further detention period by Sheriff
76. Where the sheriff is satisfied, based on the information provided by the fiscal, that a breach of the banning order or temporary banning order appears to have taken place and that there is a "substantial risk" the subject will breach the order again, the sheriff may authorise the person to be detained for a further 2 days (not counting days which are not court days).
77. Where the sheriff decides not to authorise further detention, then the detained person must be released (unless already in custody in respect of another matter).
78. The sheriff must provide the detained person with an opportunity to make representations prior to making any decision.
79. The banning or temporary banning order, any conditions attached, and power of arrest continue notwithstanding breach proceedings.
Expiry of an order prior to any criminal proceedings
80. If the subject was charged for committing an offence as a result of breaching the order and released on bail, the conditions of the order continue until its expiry, unless varied under section 24.
81. In cases where an order will expire prior to court proceedings, the applicant for the order, or the council if not the applicant, may wish to consider applying for a new banning order and temporary banning order until such time as the subject is tried. There is nothing in the Act from preventing fresh application being made. The decision to do so would depend on whether there is sufficient evidence to make an application and an order remains justified according to the statutory criteria. In cases where the council intends to act under its adult protection duties, it may wish to liaise with the police or procurator fiscal regarding the application.
Email: Stephanie Robin