Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Domestic Abuse (Protection) (Scotland) Act 2021

Type Act of the Scottish Parliament

Publication 2021-05-05

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Domestic abuse protection notices and orders

Persons to whom, and behaviour to which, notices and orders may relate

Persons to whom domestic abuse protection notices and orders may relate

1

(1) A domestic abuse protection notice (see section 5) or domestic abuse protection order (see section 9) may be made—

(a) in relation to a person (“person A”) who is aged 18 or over,

(b) for the purpose of protecting a person (“person B”)—

(i) aged 16 or over who is the partner or ex-partner of person A, and

(ii) with whom person A lives some or all of the time,

from abusive behaviour by person A.

(2) Person A and person B are partners if they are—

(a) spouses or civil partners of each other, or

(b) in an intimate personal relationship with each other.

(3) Whether person A and person B are “ex-partners” is to be determined accordingly.

(4) For the purposes of subsection (1)(b)(ii), the reference to person A living with person B is a reference to those persons living, at the same time, in any place where either person A or person B lives to any extent.

(5) References in this Part to person A and person B are to be construed in accordance with this section.

Meaning of abusive behaviour

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(1) In this Part, “abusive behaviour by person A” means behaviour by person A which is abusive of person B.

(2) Behaviour by person A is abusive of person B if a reasonable person would consider the behaviour to be likely to cause person B to suffer physical or psychological harm.

(3) Behaviour is behaviour of any kind, including (for example)—

(a) saying or otherwise communicating something as well as doing something,

(b) intentionally failing—

(i) to do something,

(ii) to say or otherwise communicate something.

(4) Behaviour directed at a person is such behaviour however carried out, including (in particular)—

(a) by way of conduct towards property,

(b) through making use of a third party,

as well as behaviour in a personal or direct manner.

(5) In subsection (2), the reference to psychological harm includes fear, alarm and distress.

(6) Behaviour may consist of a single incident or a course of conduct.

What constitutes abusive behaviour

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(1) Subsections (2) to (4) elaborate on when behaviour by person A is abusive of person B.

(2) Behaviour which is abusive of person B includes (in particular)—

(a) behaviour directed at person B that is violent, threatening or intimidating,

(b) behaviour directed at person B, at a child of person B or at another person that either—

(i) has as its purpose (or among its purposes) one or more of the relevant effects set out in subsection (3), or

(ii) would be considered by a reasonable person to be likely to have one or more of the relevant effects set out in subsection (3).

(3) The relevant effects are of—

(a) making person B dependent on, or subordinate to, person A,

(b) isolating person B from friends, relatives or other sources of support,

(d) depriving person B of, or restricting person B's, freedom of action,

(e) frightening, humiliating, degrading or punishing person B.

(4) In subsection (2)(a), the reference to violent behaviour includes sexual violence as well as physical violence.

Domestic abuse protection notices

Making of domestic abuse protection notice

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(1) A senior constable may make a domestic abuse protection notice in relation to person A if the constable has reasonable grounds for believing that—

(a) person A has engaged in behaviour which is abusive of person B,

(b) it is necessary for a domestic abuse protection order to be made for the purpose of protecting person B from abusive behaviour by person A, and

(c) there is a risk of person A engaging in further behaviour which is abusive of person B immediately and it is necessary to make the notice for the purpose of protecting person B from that behaviour.

(2) In subsection (1)(c), “immediately” means in the period before the sheriff can make an interim domestic abuse protection order or a domestic abuse protection order.

(3) It does not matter whether the abusive behaviour referred to in subsection (1)(a) took place in Scotland or elsewhere.

(4) Before making a domestic abuse protection notice in relation to person A, the senior constable must—

(a) take such steps as are reasonable in the circumstances—

(i) to establish whether person A has any views in relation to the notice which person A wishes to be taken into account, and if so, to obtain those views,

(ii) to establish whether person B has any views in relation to the notice which person B wishes to be taken into account, and if so, to obtain those views, and

(b) take into account—

(i) any views of which the senior constable becomes aware as a result of paragraph (a), and

(ii) the welfare of any child whose interests the senior constable considers to be relevant to the making of the notice.

(5) A domestic abuse protection notice may be made without the consent of person B.

Content and effect of notice

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(1) A domestic abuse protection notice is a notice which does one or more of the following—

(a) requires person A to leave any place where person B lives (whether or not it is also a place where person A lives, and even if it is person A’s only or main place of residence),

(b) requires person A to surrender keys to any such place,

(d) prohibits person A from coming within such distance of any such place as is specified in the notice,

(e) prohibits person A from excluding person B from any such place,

(f) prohibits person A from approaching or contacting, or attempting to approach or contact, person B,

(g) prohibits person A from approaching or contacting, or attempting to approach or contact, any child usually residing with person B.

(2) The notice may impose a requirement or prohibition mentioned in subsection (1) only if the senior constable who makes the notice considers it necessary for the purpose of protecting person B from abusive behaviour by person A.

(3) The notice may also require person A—

(a) at the time the notice is delivered to person A under section 6(4), to either—

(i) provide the constable delivering the notice with an address at which person A may be given notice of the hearing to be held in accordance with section 11(3), or

(ii) undertake to provide such an address to a constable by a specified time or to attend a specified police station at a specified time for the purpose of being given notice of the hearing, and

(b) to comply with any such undertaking.

(4) The notice—

(a) takes effect when it is given to person A in accordance with section 6(4) (except that the requirement mentioned in subsection (3) takes effect only if and when person A fails to provide an address in response to a request under section 6(5)),

(b) ceases to have effect in accordance with section 11(9).

(5) In subsection (3)(a)(ii), “specified” means specified by the constable delivering the notice to person A under section 6(4).

Further requirements in relation to notice

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(1) A domestic abuse protection notice must be in writing.

(2) A domestic abuse protection notice made in relation to person A must, in addition to stating each requirement and prohibition imposed by it, state that—

(a) the senior constable who made the notice has reasonable grounds for believing that—

(i) person A has engaged in behaviour which is abusive of person B,

(ii) it is necessary for a domestic abuse protection order to be made for the purpose of protecting person B from abusive behaviour by person A, and

(iii) there is a risk of person A engaging in further behaviour which is abusive of person B immediately and it is necessary to make the notice for the purpose of protecting person B from that behaviour,

(b) person A commits an offence if person A without reasonable excuse—

(i) fails to do something which person A is required to do by the notice, or

(ii) does anything which person A is prohibited from doing by the notice,

(c) an application for a domestic abuse protection order under section 8(1)(a) will be made to the sheriff not later than the first court day after the day on which the notice is given to person A,

(d) a hearing will be held in accordance with section 11(3) in relation to the application not later than the first court day after the day on which the application is made,

(e) person A will be given notice of the hearing,

(f) the domestic abuse protection notice ceases to have effect—

(i) if the sheriff makes a domestic abuse protection order or an interim domestic abuse protection order at the hearing, when the sheriff makes the order,

(ii) otherwise, when the hearing ends,

(g) the domestic abuse protection order may impose such requirements and prohibitions as the sheriff considers necessary for the purpose of protecting person B from abusive behaviour by person A.

(3) In subsection (2)(a)(iii), “immediately” has the meaning given by section 4(2).

(4) The domestic abuse protection notice must be given to person A by being delivered personally by a constable.

(5) On giving the notice, the constable must ask person A for an address at which person A may be given notice of the hearing to be held in accordance with section 11(3).

Offence of breaching notice

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(1) A person commits an offence if the person without reasonable excuse—

(a) fails to do something which the person is required to do by a domestic abuse protection notice, or

(b) does anything which the person is prohibited from doing by such a notice.

(2) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 12 months or a fine not exceeding level 3 on the standard scale (or both).

Domestic abuse protection orders

Making of domestic abuse protection order

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(1) The chief constable—

(a) must apply to the sheriff for a domestic abuse protection order in relation to a person to whom a domestic abuse protection notice is given,

(b) may apply to the sheriff for a domestic abuse protection order in relation to a person in any other case.

(2) The sheriff may make the order—

(a) only if the sheriff is satisfied that—

(i) person A has engaged in behaviour which is abusive of person B,

(ii) there is an immediate or imminent risk of person A engaging in further behaviour which is abusive of person B, and

(iii) it is necessary to make the order for the purpose of protecting person B from abusive behaviour by person A,

(b) without the consent of person B (but see subsection (7)).

(3) It does not matter whether the abusive behaviour referred to in subsection (2)(a)(i) took place in Scotland or elsewhere.

(4) The abusive behaviour referred to in subsection (2)(a)(iii) must include, but need not be limited to, the behaviour referred to in subsection (2)(a)(ii).

(5) The sheriff may permit person B to be a party to the proceedings.

(6) Before determining an application under subsection (1), the sheriff must give an opportunity to the chief constable, person A and person B (whether or not person B is a party to the proceedings) to make representations about the application.

(7) When determining the application, the sheriff must—

(a) take into account—

(i) any views of person B of which the sheriff is aware as to whether or not person B wishes an order to be made, and

(ii) where person B does not wish an order to be made, any reasons for that view of which the sheriff is aware,

(b) take into account any other views of person B in relation to the application of which the sheriff is aware,

(whether the sheriff is aware of those views, and any reasons for them, as a result of representations made to the sheriff by person B or otherwise).

(8) When determining the application, the sheriff must also take into account—

(a) any representations made to the sheriff by the chief constable or person A,

(b) the welfare of any child whose interests the sheriff considers to be relevant to the application.

(9) Subsection (10) applies where, on an application under subsection (1), the sheriff is considering making provision in an order which would relate directly to a child.

(10) The sheriff must—

(a) take such steps as are reasonable in the circumstances to give the child an opportunity to express views in relation to the matter, and

(b) take into account any views of the child of which the sheriff is aware (whether as a result of paragraph (a) or otherwise).

(11) In taking account of views of the child under subsection (10)(b), the sheriff must take into account the child’s age and understanding.

Content and effect of order

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(1) A domestic abuse protection order is an order requiring person A to do, or prohibiting person A from doing, a thing or things described in the order.

(2) Those requirements and prohibitions may include (but are not limited to) any requirement or prohibition which could be imposed by a domestic abuse protection notice (see section 5(1)).

(3) The order may impose a requirement or prohibition only if the sheriff considers it necessary for the purpose of protecting person B from abusive behaviour by person A.

(4) The sheriff has competence to make provision in a domestic abuse protection order having effect in relation to conduct at places outside the sheriff’s sheriffdom as well as at places within the sheriff’s sheriffdom.

(5) A domestic abuse protection order—

(a) has effect for such period not exceeding two months as is specified in the order,

(b) may specify different periods for which different requirements or prohibitions have effect.

Interim domestic abuse protection order

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(1) The sheriff may make an interim domestic abuse protection order (an “interim order”) pending determination of an application under section 8(1).

(2) The sheriff may make an interim order only if the sheriff considers, on the balance of convenience, that it is just to do so.

(3) In deciding whether it is, on the balance of convenience, just, the sheriff must have regard to all the circumstances, including any risk that, if an interim order is not made, person A will cause harm to person B.

(4) An interim order may do anything which a domestic abuse protection order could do (see section 9(1) to (4)).

(5) The sheriff may make an interim order—

(a) even if person A or person B has not been given such notice of the proceedings as is required by section 11(5) or rules of court,

(b) without giving person A or person B an opportunity to make representations about the interim order,

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