Domestic Violence Solicitors - Scottish Paralegal Association Webinar

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Domestic Violence Webinar Transcript

Domestic abuse has always been a feature of the work family law professionals encounter.  However, lockdown and self-isolation during the pandemic has brought it into sharp relief as victims have been forced to spend a lengthy period of time with their abusers.  I have seen an increase in the number of enquiries about this and I suspect we will see many more as lockdown continues to be eased. Statistics have shown that there has been a dramatic rise in domestic abuse in China during the lockdown.

There are criminal sanctions.  But of course there are steps which we can take in the civil court too.  My talk will start by looking at what constitutes domestic abuse so far as family law practitioners are concerned.  I will give an overview of the 5 main pieces of legislation which cover domestic abuse. I will then go on to look at the various protective orders which family law professionals can obtain.  Finally, I will look at the practical aspects involved for us in advising and acting for clients regarding domestic abuse and protective orders.  My thanks go to Neil Hay, Solicitor-Advocate, of MTM Defence Lawyers for letting me borrow part of a talk he recently gave to our family law team here at Harper Macleod in relation to the definition of domestic abuse and key legislation.

How do we as family law practitioners recognise domestic abuse?

The term ‘domestic abuse’ is given to describe a form of inappropriate behaviour between two individuals who are or may have been in a relationship with one another. There is a misconception that domestic abuse only involves physical harm being inflicted by one person on another. Domestic abuse can in fact take several forms including physical, sexual, mental and emotional abuse being inflicted on an individual. Abuse is legally defined as violence, harassment, threatening conduct and any other conduct giving rise to physical or mental injury, fear, alarm or distress. Conduct can include speech and mere presence in a specific location. So, it is absolutely not just physical abuse that we can help with.

What type of behaviour is considered abusive?

Domestic abuse is usually a persistent and controlling behaviour causing physical or emotional harm. Often and unfortunately, the longer domestic abuse persists the more severe the behaviour may become over time.

More specifically, it includes behaviour which is violent, threatening or intimidating and behaviour that is designed to have one or more of the following effects on the victim or would be considered by a reasonable person to be likely to have one or more of the following effects:

1. Making them dependent on or subordinate to the perpetrator
2. Isolating them from their friends, relatives or other sources of support
3. Controlling, regulating or monitoring their day to day activities
4. Depriving them of, or restricting their freedom of action
5. Frightening, humiliating, degrading or punishing them

The above could include for example preventing the victim having access to money or from having access to their phone or other forms of communication. It could include controlling the victim’s movements, abusive name calling and playing mind games with the victim that cause them to doubt their sanity.  So, it is not only the perhaps more obvious physical abuse aspect that we need to look out for.

Complaints can be made to the police who will investigate matters. Often, abusers will be charged and subject to bail conditions preventing them from approaching the victim.

I always tell anyone who tells me they are a victim of domestic abuse that first and foremost the police are their first port of call.  The police can take immediate intervention steps to protect the client and their family. I tell them to dial 101 if it is not an emergency and 999 in the event of an emergency. Information can also be found here.

Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS) have adopted a common definition of “domestic abuse”. It applies to anyone who has ever been in a relationship, applying equally to males and females.  So, it covers married, cohabiting, separated or divorced, boyfriend/girlfriend, heterosexual or same sex and LGBTI couples.

Domestic Abuse Definition

The definition is:

• physical abuse
• aggressive or threatening behaviour
• sexual abuse
• psychological abuse
• mental or emotional abuse
• within the context of a relationship
• between a partner or a former partner

There is a joint protocol between Police Scotland and COPFS which applies principles to be applied to all domestic allegations:

• Arrest the suspect
• Presumption in favour of prosecution
• Bail opposed or special bail conditions
• Complainer’s support for prosecution not required
• Counter complaint may not be investigated. The Police will decide who is the “principle” perpetrator.

The 5 pieces of legislation are (and I am not going into the detail of them as that is outwith the scope of this talk):

The Communications Act 2003

This defines offensive communication as sending a message that is grossly offensive or of an indecent or obscene or menacing character over a public electronic communications network (s.127).  So, this would cover for instance texts or voicemails.

The Sexual Offences (Scotland) Act 2009

This codified sexual crime in Scotland, reworked the law of consent (there cannot be consent where there is no “free agreement”) and introduced new crimes, such as voyeurism.

Criminal Justice and Licensing (Scotland) Act 2010

This brought in the domestic breach of the peace under Section 38 (offence committed if person behaves in a threatening manner, which behaviour likely to cause a reasonable person to suffer fear or alarm and the person intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm) causing fear and alarm.   This offence can be committed in private (although corroboration is still required though that could be for example a phone recording or neighbours calling the police due to disturbance).

It also brought in the offence of stalking under Section 39, being a course of conduct with the intention of causing the other person fear or alarm.   S.29 lists what is meant by conduct and it includes following someone, contacting or attempting to contact someone by any means, monitoring someone’s use of the internet, email or other electronic communication, watching or spying on someone and, as a brad catch all, acting in any other way that a reasonable person would expect the other person to suffer fear or alarm.

We encounter this where clients contact us to say that a relationship has ended and their former partner will not accept it, for instance turning up at their place of work or house.

Abusive Behaviour and Sexual Harm (Scotland) Act 2016

This refers at Section 1 to the domestic aggravation.  Revenge porn is dealt with at Section 2 and non-harassment orders at section 5.  Revenge porn would include for example using intimate photos obtained during the relationship and then publishing them, for example, sent in text messages or put on social media.  In relation to non-harassment orders, now the legislation provides that at the sentencing stage and disposal by the court, where it is domestically aggravated the court must consider a non-harassment order.  This means the accused faced not only traditional sentencing such as jail or financial penalty but also a non-harassment order.

Domestic Abuse (Scotland) Act 2018

Section 1 of the Domestic Abuse (Scotland) Act 2018 defines the offence of a course of abusive behaviour towards a partner or ex-partner which the “reasonable person” would consider likely to cause the partner or ex-partner “physical or psychological harm”, committed either intentionally or recklessly. Section 2 elaborates on what is meant by abusive behaviour.  It includes violent, threatening or intimidating behaviour (including sexual violence).  Effects of the behaviour are listed too, including making the other person dependent or subordinate, isolating from friends, relatives or sources of support, controlling, regulating or monitoring day to day activities, depriving or restricting freedom of action, and frightening, humiliating, degrading or punishing the other person.

As with all criminal offences, the standard of proof for an individual to be convicted of the offence is beyond reasonable doubt.

Section 5 of the Domestic Abuse (Scotland) Act 2018

Section 5 of the Domestic Abuse (Scotland) Act 2018 creates an aggravation to an offence under Section 1 by reason of involving a child (under the age of eighteen). An aggravation means that the court ought to treat the offence more seriously upon conviction. The aggravation is proved if the Crown leads evidence, which need not be corroborated, to show that in the commission of the offence the perpetrator of domestic abuse either:

• directs behaviour at a child
• makes use of a child in directing abusive behaviour at their partner or ex-partner;
• if a child sees, hears or is present during an incident of abusive behaviour; or
• if a reasonable person would consider that the abusive behaviour would likely adversely affect a child usually residing with the accused or complainer.
• The court requires to recognise the aggravation, record it and take the aggravation into account when determining the appropriate sentence.

Again, I am grateful to Neil Hay for the following statistic.  The Scottish Policy Authority’s statistics for the first year of operation of this Act detailed 1700 reports of crimes, so it is clearly uncovering a pretty significant volume of incidents.  There have not been many prosecutions.  This is apparently because it takes so much time to gather the evidence and of course we have had the impact of Covid 19 on the court business.

We are family law professionals, not fiscals or criminal lawyers.  However, it is useful to know a little about the criminal sanctions.  Often, victims of abuse will come to us after the police have charged the other person.  As well as acting for victims of domestic abuse, we act for those accused of domestic abuse crimes.  It is fair to say that sometimes allegations will be made which are without substance and have an ulterior motive.  It is important that we have some familiarity with the criminal position (and where relevant are able to point the client in the direction of a good criminal lawyer).

What can the Civil Courts do to protect our clients from domestic abuse?

If the police have insufficient evidence to charge an abuser with a criminal offence, this does not prevent victims from seeking protection through the civil courts. With assistance from a Family Law Solicitor, the law in Scotland offers a number of remedies by way of court orders to victims of domestic abuse in order to protect them or their children from the future risk of abuse. In Scotland, it is possible to seek the following protective remedies as court orders:

Exclusion Orders – An Exclusion Order, once granted, suspends the occupancy rights of the abuser and thereafter prevents them from returning to live in the family home, despite having occupancy rights to live in the property. Spouses and Civil Partners automatically have occupancy rights regardless of whether they are a title holder or not. An Exclusion Order, to be effective, must be combined with other orders including a Warrant for Summary Ejection and an Interdict preventing the abuser from entering or remaining in the property.

It is a draconian remedy since it deprives someone of the right to live in their property.  So, when seeking the order it is important to be as well prepared as possible.  I will cover that later in this talk.

Common Law Interdicts – An Interdict is an Order whereby the court stipulates that an individual is to refrain from carrying out a specified action or behaviour. For example a victim of domestic abuse could ask the Court to interdict their partner from approaching them or coming within a certain distance of the family home.

Powers of Arrest – A Power of Arrest is an order that is usually sought together with Interdicts and Exclusion Orders. The benefit in obtaining a Power of Arrest is that it will result in the Police being automatically able to arrest an individual if they have breached the terms of the protective remedy which has been granted.

Matrimonial Interdicts – A Matrimonial Interdict is an Interdict that restrains or prohibits any conduct of one spouse towards the other spouse or child of the family. This may include prohibiting a spouse from entering a family home or any other residence of the victim, the victim’s work place or any school the child may attend.

Domestic Interdicts – A Domestic Interdict is effectively the same as a Matrimonial Interdict but applies to two people who may be living together as cohabitants and are therefore not married.

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 alarm and distress. Examples of such conduct may include frequent phone calls or repeated text or social media messages. A breach of a Non-Harassment Order is a criminal offence and can result in monetary fine or imprisonment.

Section 8 of the Protection from Harassment Act 1997

Section 8 of the Protection from Harassment Act 1997 outlines the law in Scotland when dealing with harassment. It provides that every individual has a right to be free from harassment. It confirms that a person must not pursue a course of conduct with amounts to harassment of another person and is intended to amount to harassment of that person; or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that person.

Harassment in the context of family law most often relates to separating spouses or cohabiting couples who have separated. However, in some circumstances harassing behaviour can arise from other third parties such as new partners or family members. It can also be a form of domestic abuse.

What is ‘Harassment’ and a ‘Course of Conduct’?

Harassment of a person includes causing the person alarm or distress. ‘Conduct’ is the actions taken by a person to cause another person to feel alarmed or distressed. Conduct may include speech or such other actions amounting to a course of conduct occurring at least two occasions.

Examples of harassing behaviours may include:

• A person sending text messages
• Repeated phone calls
• Stalking
• Unwanted letters, emails or visits from a person
• Posting messages using social media about them
• Threatening and abusive behaviour
• Cyber bullying on the internet for example via Facebook, Twitter, YouTube, Snapchat, online gaming services and other social media forums
• Spreading rumours
• Blackmailing

Certain types of behaviour of a harassing nature also have specific areas of law relevant to deal with harassing behaviours directed towards; race, disability, religion, gender or sexual orientation.

What is a ‘Non Harassment Order’?

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.

In some circumstances, where a person has been convicted of a criminal offence, a Court may also grant a Non Harassment Order against that person. In these circumstances the order would be applied for by the Procurator Fiscal requiring the offender to refrain from such conduct in relation to the victim as specified in the Order.

A non-harassment order will not be granted unless the Defender has been given an opportunity to be heard in Court. As a result it is common practice to apply for an Interim Interdict Order to be granted at a pre-service hearing until such time as the Defender has had an opportunity to be heard and a non-harassment order has been granted.

How does the Court decide whether to grant an Interim Interdict or a Non-Harassment Order?

Whether the Court the decides to grant a Non Harassment Order is determined on the balance of probabilities (more likely than not) and the order it is appropriate to protect the victim from further harassment.

When deciding whether an Interim Interdict should be granted, the Court will make the decision on the balance of convenience

How do we defend a Non Harassment Order being granted against a client?

If our client is the person defending an order for a Non-Harassment Order, this can be defended if it can be shown that the course of conduct complained of was authorised under any rule of law; was pursued for the purpose of preventing or detecting crime or was reasonable in the particular circumstances. If an order has been granted against a client, it is possible to apply to the Court to seek variation or revocation of the order.

What happens if someone breaches a ‘Non-Harassment Order’?

It is important that if a person has breached the non-harassment order that it is reported the police. The police may then charge the person and the matter will be considered by the Procurator Fiscal on whether the person will be prosecuted. Evidence may be required to demonstrate the breach of the order took place.

Breaching a non-harassment order is a criminal office which can result in a person being sentenced with a fine or imprisonment.

In addition, a victim of the breach of a non-harassment order can also apply to the Court for a civil based claim. This can result in the person being entitled to an award of damages or the court may at that stage grant an Interdict or interim Interdict against that person to stop specified types of behaviour.

It is important to report instances of harassment when they occur as the police will keep a record of it

Practical aspects

Sometimes when a client contacts me about domestic abuse, I will advise first of all sending a letter to the abuser, asking them to desist and pointing out failure to do so will result in court proceedings.  However, it depends on what is being alleged; it can be so urgent that there is no point in sending out a letter/letter might make the situation worse especially if parties continue to live under the same roof.

On a housekeeping note, applying to court for protective orders or defending them is very front loaded.  Make sure legal aid cover is in place and if private fee paying then get a payment to account of future fees and outlays before starting any work; I generally ask for £1500.  To save on time, if you have a new client who consults you about protective orders, dictate a precognition at the outset, which you can update and then easily turn into an affidavit.  Check there are witnesses available, who are willing to give evidence in court if required at a future date in person (or by videoconference).  If your client wants a friend or relative present at the initial consultation for support, of course that is fine but that person cannot then also be a witness as s/he will have been privy to advice tendered regarding the case itself.

Ensure pleadings are clear and detailed, with narration of incidents in date order so it is easy to follow and paints a clear picture for the Sheriff.  When taking your client’s statement, try to get a detailed chronology of events which led up to the final incident which brought the client to you.  I tend to get a chronology for about the last year, certainly last 6 months, identifying key incidents.  Your client may prefer to email you this separately so as to have time to check on dates etc (this will certainly save on cost for them since your time will not be taken up taking the statements but you need to decide on a case by case basis). Of course, it is not always possible to be accurate about dates, but the more detailed you can be the better chance you have of persuading the court to grant the order you seek.  Be concise but ensure you have enough material to justify the order(s) you are seeking.

If the police have been involved, then get police incident numbers/police reports.  If there are bail conditions in place, lodge a copy. If the client has spoken to their GP regarding the relationship, lodge a medical report (for which there will be a cost levied by the GP).  You will need a mandate from the client to correspond with the practice.  If you are told the report will take several weeks, try getting your client to contact the GP too, to underline the urgency.  Affidavits from your client and from witnesses will be required.  It is obviously better if the witness has actually witnessed the behaviour complained of but that is not always possible, so even if they can speak to the impact of the behaviour on your client.  Photos of injuries sustained can be lodged and referred to in the client’s affidavit.  Just now, during Covid 19 there is an issue with notarising documents in person.  Guidance has been issued.  We are notarising by video call, referring to that in the affidavit and recording the notarisation to keep on our file.

At  on the day of June in the year two thousand and twenty in the presence of         , Solicitor and Notary Public, Harper Macleod LLP, Citypoint, 65 Haymarket Terrace, Edinburgh EH12 5HD via video call from Edinburgh, compeared, residing at who having been solemnly sworn, depones as follows:

I will give clients information that might help them deal with the consequences of domestic abuse and where relevant ask if they have considered attending counselling. Support organisations available include:

For Men:

1. Scotland’s Domestic Abuse & Forced Marriage Helpline – 24 hour service – 0800 027 1234
2.  Abused Men in Scotland – 08088 000 024
3.  Victim Support Scotland – 0800 160 1985
4.  Rape Crisis Scotland – 0808 8010 302

For Women:

1. Scotland’s Domestic Abuse & Forced Marriage Helpline – 24 hour service – 0800 027 1234
2.  Scottish Women’s Aid – 0131 226 6606
3.  Rape Crisis Scotland – 0808 8010 302
4.  Scottish Women’s Rights Centre – 0808 8010 789

If your client is the alleged abuser and is concerned another party will seek protective orders, consider lodging caveats so you are alerted to a hearing (appropriate sheriff court and also court of session if relevant) before service.  If you are at the stage where protective orders are already being sought against him/her, consider whether it might be prudent for your client to offer an undertaking.  This might do away with the necessity of an opposed motion hearing with attendant cost and uncertainty of outcome.  The undertaking could be recorded in an interlocutor to give the other party reassurance.  Also bear in mind that if an interdict has been granted, you can argue there is no need for power of arrest to be attached if you can show there have been no further incidents since the interim interdict was granted.

Try to get Defences in before the hearing after service to set out your client’s position in advance of the hearing.  As ever, be concise but comprehensive.  Of course, it may not be possible to get Defences in depending on when your client contacts you and the hearing date.  Ensure you have detailed submissions and possibly affidavits too, to counter what is being said about your client.

It is fair to say that if protective orders are granted, and if there are children under 16, it will inevitably make it harder for your client to get contact back on track. The other party may argue s.11 (7B) and (7C) of the Children (Scotland) Act 1995, namely that in deciding whether or not to make a s.11 order (eg an order regulating contact) regard shall be had to the need to protect the child from any abuse or the risk of any abuse which affects or might affect the child; the effect such abuse, or the risk of such abuse, might have on the child; the ability of a person who has carried out abuse which affects or might affect the child or who might carry out such abuse to care for or otherwise meet the needs of the child.  Section 11 (7C) makes clear abuse includes domestic abuse and that it can be abuse of a person other than the child (for example the primary carer).  It is fair to say that sometimes when a relationship is breaking down, one or other party behaves in a way completely out of character and which leads to a conviction, eg under s.28 of the 2010 Act.  I am not attempting to condone such behaviour but what I will argue on behalf of that person is that an isolated incident should not be used to prevent a parent having contact with their child.  Even if contact has to start off on a supervised basis, so long as I can show that contact goes well, I can hopefully start to build it back up for my client.

Sometimes, the protective order can have a real impact on the person against whom the order was made and in those situations we may require to have a Proof on the matter.  So, for example where two parties run a business together and one obtains an interdict preventing the other from entering the premises.  Or if is detrimentally impacting on your client’s ability to have contact with a child of the relationship.

Conclusion

Whoever we act for, domestic violence cases call for sensitive and tactful handling on our part as well as the ability to prepare court documentation quickly but comprehensively.  Getting the right protection in place means exercising our judgement to ensure we get the best outcome possible for our client.

I hope you have found this useful.  I can’t take questions as this is pre-recorded but if you do want to ask anything you can email or call me.

Get in touch

If you require advice on options available in circumstances involving domestic abuse, please do not hesitate to contact a member of our family law team by telephone or by submitting an online enquiry for a confidential and free chat. Our solicitors are available across the country to help:

• Glasgow Head Office call 0141 227 9545
• Edinburgh Office call 0131 247 2556
• Shetland Office call 01595 480759
• Elgin Office call 01463 795 035