The Scottish Parliament’s Criminal Justice Committee post legislative scrutiny of the Domestic Abuse (Scotland) Act 2018

Amanda Masson, head of the family law team at Harper Macleod gave evidence at the Scottish Parliament Criminal Justice Committee as part of its post-legislative scrutiny of the Domestic Abuse (Scotland) Act 2018 on 8^th March 2023.

Attending the Criminal Justice Committee’s meeting to give evidence on the Domestic Abuse (Scotland) Act 2018 provided an opportunity to reflect on how this groundbreaking legislation has operated in practice and what more could be done to improve things for individuals and children who are living with or have survived domestic abuse.

The aim of the legislation was to increase awareness of the full extent of domestic abuse for victims and those around them. The crucial point is that the Act established coercive control as a criminal offence. A course of behaviour towards a partner or ex-partner could be a crime. An offence could be prosecuted as an aggravated offence if a child is, or was, involved.

Members of the public often consider domestic abuse to mean violent behaviour, but the Act also covers psychological and emotional abuse.

It was heartening to experience the level of interest and care exhibited by the MSPs on the Committee. They were keen to hear about how the Act has operated in practice and what, if anything, could be done to improve the application of the legislation.

In my practice as a family law specialist, I often hear of clients having experienced behaviours on the part of their partners or former partners which would constitute abuse in terms of the 2018 Act. Sadly, I  hear of former partners refusing to accept a decision to end a relationship, and engaging in behaviours that constitute harassment such as bombarding clients with abusive text messages, intercepting emails, or stalking. Such behaviours are devastating for the person experiencing them, and place any children of the relationship in a distressing position.

For a variety of reasons, there can be a reluctance to report experiences or incidents to the police. Yet there are protective remedies available in the civil courts, too, for those who are experiencing abuse.

Non-harassment orders can be an effective way of deterring a former partner from continuing in negative behaviours for fear of criminal sanctions. Obtaining orders can help the survivor feel safer, and, importantly, that their concerns have been heard and taken seriously. Negative behaviours can also be relevant in the context of establishing that a marriage has broken down irretrievably (often referred to as “grounds of divorce”). A person who has experienced a course of negative conduct by their spouse cannot reasonably be expected to continue in a marriage. Being able to apply to the Court for a divorce can enable access to financial orders and orders relating to the care of children – issues which are a source of worry for people thinking about ending their marriage.

The discussion at the Scottish Parliament covered many aspects of this important and multi-faceted issue including training of police officers and sheriffs, and how contact with children can be planned in a safe way that does not enable perpetrators to continue to try to exert control over their former partners.

The conclusion I reached was that the conversation about abusive behaviour needs to continue if we are to raise awareness of how the law can help. Family law experts have a crucial role to play in supporting and guiding those who are perhaps conflicted about how to approach a difficult situation. Criminal sanctions may not be the right outcome for some. Obtaining protective orders in the civil court may not be accessible for those with limited financial or emotional resources. Conversations about what is realistic, achievable and manageable for an individual are key to helping them identify their aims and achieve them.

I found the debate invigorating both personally and professionally. It reminded me of the important role that solicitors play in shaping more positive futures for our clients, and of the useful legislation we have at our disposal.

You can access a transcript of Amanda’s evidence via the Official Report of the committee meeting.

You can also watch the session on Scottish Parliament TV.