What is domestic abuse?

Introduction to Domestic Abuse

Domestic abuse is a term used to describe a wide range of incidents involving unlawful behaviour that takes place between two individuals who have been involved in a relationship with one another. Although domestic abuse is most prevalent between couples or separated couples, domestic abuse can also occur between family members.

In Scotland, Domestic Abuse is a criminal offence. The Domestic Abuse (Scotland) Act 2018 widened the definition of abuse to include, physical abuse, sexual violence, psychological or financial abuse. The offence can carry a maximum of 14 years imprisonment.

Recognising and understanding domestic is extremely important to protect those individuals in society who may be vulnerable. The impact of domestic abuse can create extremely traumatic life experiences for their victims which sadly have lasting effects and can impact on their own quality of life and future decision making.

The National Strategy to address Domestic Abuse in Scotland and the Scottish Executive define Domestic Abuse as being gender-based abuse, that can be perpetrated by partners or ex partners towards their victim and can include physical force, sexual violence, emotional or psychological abuse.

Domestic Abuse and Domestic Violence define different types of behaviour. Domestic abuse covers a wider range of behaviour which also includes controlling types of behaviour such as threats, verbal abuse, racial abuse, withholding money and other types of controlling behaviour such as forcing isolation from family or friends. Domestic Violence is used to describe acts physical violence between two individuals, this may include assault or physical attacks.

Reflecting on experiences

A major impact of abuse is the decline and negative impact that abusive behaviours can have in the short and long term on a victim’s mental health and well being.  The degrading of a victim’s mental health ultimately results in them experiencing isolation and significant loss of autonomy. This makes it extremely difficult for victims to access help and support. Self-reflection and awareness can be a key stepping stone in identifying what is or is not acceptable behaviour and that which falls into domestic abuse.

Causes and Contributing Factors

It is important to remember that there is no one cause of domestic abuse. Domestic abuse is a choice, not an uncontrolled impulse.

Societal and cultural factors

A survivor can’t ‘make’ their partner abuse them. In some cultures, there is a belief that men must be dominant over women. But despite social and cultural stigma around who is the abuser and who is the victim, anyone can experience domestic abuse. On the other hand, there is a perception that the man will be the abuser and the women will be the victim. This is not always the case. As more cases are being reported, statistics show a rise in female perpetrators of domestic abuse according to data from Police Scotland, although current statistics suggest that the majority of incidents are perpetrated by men against women in Scotland,

Individual psychological factors of the abuser

There can be a wide range of factors that attribute to an abuser committing abuse. Often abusers may have experienced domestic abuse, historical trauma or childhood trauma themselves, which has then led them to assume that their own behaviour is acceptable. Other factors such as less access to education, personality disorders, substance abuse, low self-esteem, lack of anger management, generational abuse and insecurity are all other factors that may be applicable. However, possessing some of these traits does not automatically mean someone will abuse their partner.

The role of power and control dynamics

Importantly, domestic abuse is about power and control. Many outsiders wonder why survivors don’t just leave, but an abusive relationship can often marked by complex dynamics, that will make it difficult to get escape. Abusers tend to use behavioural tactics that gain or maintain control and power over their partner to keep their partner in the relationship. Moreover, abusers will place the blame on their victims to create justifications for their actions and take away any responsibility for them.

Impact of Domestic Abuse

On victims: physical, emotional, and psychological

Domestic abuse can be physically, emotionally, financially and psychologically damaging to a victim. The extent of trauma and damage can vary significantly. Often the victims of domestic abuse suffer long term emotional and psychological harm, and in some case lifelong physical injuries.

On family members and children

Domestic abuse doesn’t just impact the victim themselves. When it comes to children, domestic abuse is in fact child abuse. Physical harm to a child, or allowing a child to witness domestic abuse will create long term emotional consequences that can impact the child’s own future development and relationships. If a child is exposed to domestic abuse, this can create their own childhood trauma which may impact on them in later life. For children where domestic abuse is all too familiar, they may grow up thinking abuse is an acceptable way to solve conflict and treat or be treated that way. Therefore, keeping the cycle of abuse turning for the next generation of abusers and survivors.

In terms of the Children’s Hearings (Scotland) Act 2011, if a ‘child has, or is likely to have, a close connection with a person who has carried out domestic abuse’ then they can be subject to referral to the Scottish Children’s Reporter. If an incident has occurred and there is police presence, where there are children present too, social work will be notified and there may potentially be a referral to the Childrens Reporter who specialise in the protection of children. This will then invoke the process of children’s hearings in the court focusing on what is best for them, their safety and their welfare. Where children are continually exposed to the risk of domestic abuse, the Children’s Reporter will take the necessary steps to remove the children from that risk of harm through a process of hearings and interviews. Early intervention to protect victims and children is essential to minimise harm.

Addressing Domestic Abuse & the Criminal Process

Tackling domestic abuse is an organisational priority for both Police Scotland and the Crown Office and Procurator Discal Service. The Police will treat all incidents of domestic abuse as high priority, with focus being on the safety and well-being of the victims, other family members and any other person present. Regardless of whether the victim makes a complaint themselves, the Police will take appropriate action, including arrest the suspect where there is reasonable cause to suspect a crime has been committed. Where there is sufficient evidence, the police will charge the suspect and submit a report to the Procurator Fiscal to consider for prosecuting through the Criminal Courts.

All cases involving an element of domestic abuse will be reported to the Procurator Fiscal for consideration on whether to prosecute. A decision to prosecute will involve there being sufficient corroborative evidence.

For victims, a Police Officer trained in Domestic Abuse will be appointed to support them, update them on the criminal process and ensure appropriate supports for safety are in place. Consideration will also be considered to any necessary safeguarding for children who may have been affected by the domestic abuse. Where children have been exposed to domestic abuse, this can result in a referral being made to the Scottish Children’s Reporters Administration (SCRA) for review on whether any Child Protection measures may be necessary to protect the welfare of the child. If children have been witnesses, they too may need to be interviewed by trained police officers.

For victims and children, the Police will also have regard to any special measures available to support the victims or children through the criminal justice system.

Counter allegations of domestic abuse may also be made. The police will investigate counter allegations of abuse. The police then have the task of identifying and determining who the principal perpetrator is for reporting to the Procurator Fiscal. The police will consider the nature and circumstances of the incident, whether one party may have acted in self-defence or whether there are historical incidents which are relevant.

How to help someone, or yourself when experiencing Domestic Abuse

• It is important to understand the importance of empathy and respect for a victim.
• Encouraging a victim to take steps to get the help and support they need is key.
• Report it to the police
• Encourage the victim to speak to a Specialist Family Law Solicitor
• At the bottom of this page, we have listed a variety of helplines available to help individuals who may be experiencing any form of abuse.
• Ensure the victim takes a mobile telephone with you when you go out
• Have your keys ready for when you reach your front door
• Fit a home alarm system or carry a personal attack alarm
• Change your online passwords and do not share personal information
• Set a pin or password on your mobile devices
• Turn off GPS and locating tagging on your mobile devices
• If you think you are being followed, head to a public place or contact the Police

Domestic Abuse – Family Law Solicitors and Civil Orders

By working with a family lawyer, you will be advised of all your legal options and provided with solutions tailored to your situation. You can make an informed decision for your own and your family’s protection without necessarily involving the Police or the Criminal Court Process. At Harper Macleod we are sensitive to emotional trauma and are there as a support throughout the legal process. Our role is to guide you and keep you informed every step of the way. We will discuss with you what court orders may be available to assist you. What orders you seek will depend on a variety of factors such as if you are married, civil partners or a cohabitating couple. However, not all orders are catered towards those you have intimate relationships with. There are also remedies in place for protection against any individual who is behaving abusively towards you. We can advise you on this, and on what course of action is the best possible protection in the quickest and most affordable way for you.

The different types of civil court orders that a solicitor can advise you on may include;

• Interdict – is a Civil Court order which is the Scottish equivalent to an injunction. Within a family law context, an Interdict is intended to prohibit the conduct of one party to prevent them acting in a specified manner towards the victim or a child of the family. The terms of the Interdict can be quite bespoke where necessary.
• Generally, a non-molestation interdict is what will be sought from the Court. This is a general interdict would intended to prohibit a person from abusing the victim verbally, by threatening them, by putting them into a state of fear and alarm or distress and by using abuse towards them. Such interdicts are usually requested from the Court at the very outset of a Court action dealing with domestic abuse and would be granted on an ‘interim’ basis. An Interim Interdict is essentially a temporary order granted by the Court during the course of the Court procedure and before final Orders are made. An Interim Interdict can be granted by the Court prior to the Defender being notified of the case having been raised.
• An interdict can also specify that a person is to be prevented from entering a specific location or a place of residence, place of work or any school attended by a child of the family. An interdict can prevent unlawful entry to a home. For example, it can be used to prevent a person returning to the home who does not have the right to occupy it. However, an interdict cannot deprive someone of their right to occupy property. For this, an Exclusion Order must be sought which is discussed below.  The scope of an Interdict and the extent of behaviours that can be prohibited are a matter of discretion for the Court.
• Whether a Court will grant interim interdict will be determined on a two-stage test (1) that there is on the face of it a foundation and reasonable prospect of success (prima facie case), and (2) the balance of convenience favours the Interim Interdict being granted, as the inconvenience it may cause to the defender is outweighed by the potential impact to the victim. If the interdicted person is proven to have breached the terms of the interdict then they may be found to be in contempt of court and subject to a fine or imprisonment.
• Power of Arrest – is an order that can be attached to an interdict. An abused person applying for, or who has obtained an interdict for the purpose of protection from abuse, may apply to the court for a Power of Arrest to be attached to that. In other words, a Power of Arrest is an additional layer of protection which the court can attach to an Interdict. A Power of Arrest can only be attached where it is necessary to protect the applicant from the risk of abuse. Once a Power of Arrest is in place, if an allegation has been made that an individual has breached the terms of their interdict, the Police are able to immediately arrest the perpetrator without the need for a warrant if they have reasonable cause to suspect they have breached the order and consider that there would be a risk of abuse. The individual would be detained, and the matter would be dealt with before the Criminal Court process. If the Court finds that an individual has breached an interdict, they will be guilty of a criminal offence.
• Domestic Abuse Interdict – An interdict may be determined by the court to be a ‘Domestic Abuse Interdict’ if the court is satisfied that it is for the protection of the applicant against their abuser. A court will determine an interdict as a domestic abuse interdict only if the interdict is intended to protect the applicant from their spouse, civil partner, cohabitating equivalent of the applicant or a person in an intimate personal relationship with the applicant. This includes relationships between boyfriends and girlfriends, including same sex relationships, although the relationship does not need to be sexual. Family relationships and other types of relationships such as those between friends or work colleagues for example are not intended to be covered here. Essentially, if your interdict is declared as being a domestic abuse interdict and the court grants a Power of Arrest, or you already have a Power of Arrest that’s still in force, a breach of the domestic abuse interdict will be regarded as a criminal offence.
• Exclusion Orders – An Exclusion Order is a Court Order which suspends a partner’s occupancy rights to be able to enter or occupy a matrimonial or family home.
• Occupancy rights are a legal right and entitlement of a person to be able to enter and occupy a heritable property. In a family law context, occupancy rights include a legal right to enter and occupy along with any child of the family, the matrimonial or family home. Occupancy rights can primarily be obtained automatically by being named on the title deeds for a property which is owned, or by being a tenant if it is a rental property.
• You can also obtain occupancy rights through marriage/civil partnership. If you are married/civil partnered, you will acquire occupancy rights automatically on marrying/entering into a civil partnership with the owner/tenant of a property, where the couple are living in the property as a family home. Where this occurs, spouses and civil partners automatically have occupancy rights even if they are not a title holder or a named tenant to the property. This is known as being a ‘non-entitled spouse or civil partner’. Occupancy rights give the non-entitled spouse the same right to live in the matrimonial home as if they were the owner/tenant.
• If you are a cohabitating couple, unlike married couples, you do not have automatic occupancy rights. If you are not on the title, then you do not have occupancy rights unless you apply to the Court to obtain an Order with to obtain them for a temporary period. This is known as applying for an Award of Occupancy Rights. If the court grants the applicant occupancy rights, they are generally only granted for a period of up to a maximum of six months, although a further application can be made for an additional extension by application to the Court.
• An Exclusion Order suspends the occupancy rights of a person who holds occupancy rights and prevents them from returning to the family home. This is despite the fact that the abuser has occupancy and a legal right to live in the home.
• It is important to note that an abuser who holds occupancy rights as a joint owner or as a non-entitled spouse can only be lawfully excluded from a matrimonial home by an Exclusion Order. It is not possible to Interdict an abuser from a property which they have occupancy rights to.
• An Exclusion Order is granted if the court considers it necessary for the protection of the applicant, or any child of the family, from any conduct, of the non-applicant ‘which is or would be injurious to the physical or mental health of the applicant or child’. The court will also look the nature and the extent of the alleged conduct and needs to be satisfied that the conduct is likely to be repeated if the parties continue to live together. An Exclusion Order must also be necessary to protect the applicant and any children of the family and be reasonable in the circumstances. Factors such as the parties’ financial resources, the needs of the children, whether the property is used for work or business and the availability of other suitable accommodation can all be taken into account as part of the decision-making process. The test for obtaining an Exclusion Order is a high.
• Exclusion Orders are not usually standalone orders. For an Exclusion Order to be effective, it must be sought and combined with other protective orders including a warrant for summary ejection and an interdict preventing the abuser from entering or remaining in the property. A warrant of ejection is an order that instructs the removal of a person from a property. Therefore, the Exclusion Order suspends their occupancy rights, and the warrant of summary ejection grants the power to the Police to forcibly remove the abuse from the home if necessary and a Power of Arrest order allows the Police to automatically rest the alleged abuser if there is concern the terms of the order may have been breached.
• Non-Harassment Orders – A Non-Harassment Order is designed to protect a victim from a course of conduct which amounts to harassment and causes the victim fear, alarm and distress. ‘Conduct’ is the actions taken by a person to cause another to feel alarmed or distressed. Examples of harassing behaviours includes sending text messages, repeated phone calls, stalking, unwanted visits, posting on social media about them, cyber bullying, blackmailing and spreading rumours to name a few. Conduct like these examples amounts to a course of conduct if it occurs on at least two occasions (if it is not part of a domestic abuse situation – if it is, then the violent behaviour needs only to happen once.). Whether the court decides to grant a Non-Harassment Order is determined on the balance of probabilities. In other words, if it is more likely than not to be appropriate to protect the victim from further harassment. These Orders are available to all individuals, not just separated couples. Scots Law provides that every individual has the right to be free of harassment. A party must not pursue a course of conduct with amounts to harassment of another person and is intended to amount to harassment of that person. The test for this is whether it would appear to ta reasonable person that tit is intend harassment. If a party breaches a Non-Harassment Order, they will be guilty of a criminal offence and can be arrested without a warrant. This can result in them being fines or imprisoned. A victim of a breach of a Non-Harassment Order can also apply to the court for a civil based claim and be entitled to an award of damages.

Conclusion

Domestic Abuse is a complex area of law, which requires careful understanding and experience to advise effectively. It is essential to understand the impact of trauma and the intricacies of how the alleged abusive conduct or behaviour may impact on the victim and their decision making and wellbeing.

Speaking to a family law specialist allows independent and impartial advice to be obtained on all of the options that may be available to address any allegations of domestic abuse that may have been raised, both from a criminal and civil law perspective. There are a wide variety of civil law remedies available to victims who require protection, but who perhaps do not wish to involve the Police or become involved in the criminal justice process.

Speaking out about domestic abuse can be one of the hardest steps to take and a daunting process. Finding the right solicitor for you can also be challenging. At Harper Macleod we have a team of Solicitors who practise Family Law full time and frequently deal with cases of domestic abuse. Our Family Law Team is made up of a number of solicitors who are Accredited Specialists with the Law Society of Scotland.

Helpful resources

• NHS UK: Comprehensive information on recognising and getting help for domestic violence and abuse. NHS – Getting Help.
• Police Scotland: Detailed information on domestic abuse, including legal implications and support for victims. Police Scotland – Domestic Abuse.
• Women’s Aid Scotland: Typically provides support and information for women experiencing domestic abuse (website not accessible for detailed summary).
• Abused Men in Scotland (AMIS): Offers support to male victims of domestic abuse, including a helpline and resources. Abused Men in Scotland.
• Victim Support Scotland: Information on domestic abuse forms, impact, and guidance on getting help. Victim Support Scotland – Domestic Abuse.
• Safer Scotland: Overview of domestic abuse, its forms, and support options. Safer Scotland – Domestic Abuse Support.
• LGBT Domestic Abuse Scotland: Specialised support for LGBT individuals, with advice and resources. LGBT Domestic Abuse Scotland.
• Rape Crisis Scotland: Support for those affected by sexual violence, including domestic abuse survivors. Rape Crisis Scotland.
• Shakti Women’s Aid: Support for black and minority ethnic women experiencing domestic abuse. Shakti Women’s Aid.