Domestic Abuse & Forced Marriage - Legal Issues Information Book

Droch Dhìol san Dachaigh & Pòsadh Èignichte Leabhar Fiosrachaidh Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 1 Contents

3 Flowchart of possible proceedings and options

5 What is Domestic Abuse?

6 Domestic Abuse as a Crime

10 Civil Measures

16 Forced Marriage

18 Finding a Solicitor

19

20 Housing & Domestic Abuse

23 Other Help - Benefi ts

25 Support Services Please note – this booklet does not qualify workers to give legal advice – it contains only basic information. If in doubt, for information on specifi c topics speak to your local Domestic Abuse Liasion Offi cer, , VIA representative, Housing or Benefi ts Advisor but if someone needs legal advice, they must be referred to a solicitor.

2 Domestic Abuse & Forced Marriage - Legal Issues Information Book Flow Chart of possible proceedings & options

Domestic Incident

Domestic Incident – Police Attend Alleged perpetrator may be arrested and detained by police in custody.

Police investigate – the victim will be required to provide a statement and other sources of evidence will be sought.

Not enough Suffi cient Corroborative evidence Evidence

Report kept on fi le, but Case reported to the proceedings can’t be Procurator Fiscal who then continued at this stage. decides whether or not to Fiscal may instruct police prosecute. to re-investigate in order that further evidence may be sourced.

If accused has been In exceptional detained in custody will circumstances, they will appear in court the accused may on the next lawful day. If be released on an released, Bail conditions undertaking to appear may be applied for after in court at an early diet this court appearance – within a few days – or they may again be Police Bail Conditions remanded in custody. may apply.

Court Case – perpetrator will be found guilty or not guilty. If guilty, may either be sentenced then and there by the or the case will be continued for reports. If the case is continued for sentencing, convicted person may be further detained or released on bail.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 3 Flow Chart of possible proceedings & options

Legal Advice

Person seeks Legal Advice to protect themselves from Domestic Abuse. May obtain Legal Aid to fund this advice or may have to pay personally. After receiving advice, person decides to go to court to obtain a protective order (Interdict with a power of arrest attached, Exclusion Order, Non- Harassment Order, Domestic Abuse Interdict) and they have the funding to do so, either via Legal Aid or if they are not eligible for Legal Aid, through their own fi nances. Breaching a domestic abuse interdict is itself a crime. Other interdicts need separate enforcement if breached.

Applicant for protective order must be able to produce evidence and statements (affi davits) from witnesses to satisfy the court of the need for the order. Non Harassment Order complicated – must be at least two incidents – note that Procurator Fiscals can also ask for this in criminal cases against the offender. Interdict granted - a court granted order preventing behaviour by a person it is granted against, e.g. approaching an address/person

Court grants protective order. In the case of an interdict, there may be more that one hearing if the applicant requires a Power of Arrest to be attached. Power of Arrest is important as there is no need for person to have committed a criminal act to be arrested and detained if they breach the interdict The order is only effective when served personally on the perpetrator by sheriff offi cers.

Where there is a power of arrest a copy of Protective Order should must be sent to relevant Chief Constable and local police station for the power of arrest to be effective. If the Order is breached then the accused may be arrested and kept in custody for court appearance on the next lawful day.

4 Domestic Abuse & Forced Marriage - Legal Issues Information Book What is Domestic Abuse

The Highland Public Services Partnership Although Northern Constabulary and has adopted the ’s the Area Procurator Fiscal in Highland gender-based defi nition of domestic acknowledge the defi nition cited above, abuse. This means that domestic abuse the defi nition adopted by the Crown must be understood within the context Offi ce and Procurator Fiscal Service of gender inequality, where women are (COPFS) and the Association of Chief generally given less value, status and Police Offi cers in (ACPOS) is: power in society compared to men; this can be identifi ed in a number of forms Any form of physical, sexual or in Scotland, including domestic abuse mental and emotional abuse which which is overwhelmingly experienced by might amount to criminal conduct women and perpetrated by men. and which takes place within the context of a close relationship. The The defi nition of domestic abuse relationship will be between partners adopted by the Partnership is: (married, cohabiting or otherwise) or ex-partners. The abuse can be Domestic abuse (as gender based committed in the home or elsewhere. abuse) can be perpetrated by partners or ex-partners and can include physical abuse (assault and physical attack involving a range of behaviour), sexual abuse (acts which degrade and humiliate women and are perpetrated against their will, including rape) and mental and emotional abuse (such as threats, verbal abuse, racial abuse, withholding money and other types of controlling behaviours such as isolation from family and friends).

This defi nition does not exclude domestic abuse in same sex relationships or the abuse of men by women because it is “gender-based”.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 5 Domestic Abuse as a Crime

Introduction • Attempted Murder • Murder The extent of domestic abuse in Scotland is well known. There are numerous • Rape sources of research which reveal that between 1 in 5 and 1 in 3 women in • Stalking Scotland will experience domestic abuse in their lifetime. For some • Assault with intent to ravish (this means women, domestic abuse can have fatal an intention to rape) consequences – two women a week are murdered in the UK by their current or • Threats former male partners. • Breach of the peace (e.g. verbal The police in the UK also deal with one abuse, stalking, etc) 999 call a minute that relates to domestic The abuser could also be charged with abuse. In the Highlands in 2009/10, 879 other, statutory offences, e.g. sending domestic abuse incidents were reported threatening messages via a telephone to the police – over 80% of cases (landline or mobile phone) could result involved a female victim and a male in the abuser being charged with an perpetrator. offence under the Telecommunications Act 2003.

Criminal Proceedings

In Scotland there is no specifi c criminal Stalking Criminal Justice offence of “Domestic Abuse”. What & Licensing (Scotland) diffentiates domestic abuse from other criminal behaviour and forms of violence Act 2010 is the context in which domestic abuse The law in relation to stalking in Scotland occurs. Domestic Abuse is about changed in December 2010 with the misuse of power - behaviour, action introduction of a “new” offence of and coercion used to gain control over stalking. The law defi nes stalking as someone. This will form a pattern of being where a person carries out an behaviour and are not simply ‘one-off’ unreasonable course of conduct, incidents. However, because only e.g. following, monitoring, contacting or individual acts can be prosecuted, when attempting to contact another person. police are called to domestic incidents This behaviour is with the intention of the accused could be charged with causing, or would be likely to cause, fear specifi c Common Law crimes relating to or alarm. Course of conduct means two their conduct, e.g.: or more occasions. This legislation makes • Assault (for physical violence) stalking a criminal offence.

• Serious Assault (a more serious physical attack)

6 Domestic Abuse & Forced Marriage - Legal Issues Information Book How is someone charged? Corroborative Evidence

When the police are called to a What counts as evidence? domestic abuse incident they will treat the allegations seriously and conduct • The victim’s account or statement. a full investigation. As part of this • House to house enquiries and investigation the alleged victim will be statements obtained as a result. interviewed separately from the alleged abuser and required to provide a • Statements from other witnesses statement. (including children where appropriate). If there is enough evidence to arrest the perpetrator, the police will do this – • Disturbance at the scene of the even if the victim does not want this to incident, e.g. furniture/windows happen. In Scotland, a victim of crime smashed – additional evidence that never has the decision as to whether can be provided by photographs. an arrest should take place and cannot “drop” or “press charges”– only the • Medical evidence, such as injuries, attending police offi cers can make this which should be photographed as decision. Ultimately, the Procurator Fiscal soon as possible. make’s the decision about whether there is enough evidence for the case to • Forensic evidence. proceed – more information is included below. • 999 recordings. • If the perpetrator admits to the crime when questioned under caution. How much evidence is needed before someone can be charged with a What happens to the crime? Perpetrator after arrest?

In order to establish that a crime was The person accused with the offence committed and that the accused was will be detained in custody before the perpetrator evidence from at least appearing in court the next “lawful day” two different sources is required under – that means the next day the court is . This is called “corroborative sitting, e.g. if arrested on a Monday, they evidence”. If the police are able to would appear in court on Tuesday and gather suffi cient corroborative evidence, if it was a Friday the accused would be the case will be reported to the held in the cells over the weekend and Procurator Fiscal. they would appear on Monday, as the court does not sit on a Saturday. Note that Corroborative evidence does not necessarily mean that two eye Under exceptional circumstances, the witnesses are required. Corroboration accused may be released and given a can be established in a number of ways, specifi c date and time to appear and but is often diffi cult to establish suffi cient court (this is called an “early diet”). evidence in domestic abuse cases, as the incidents most often occur behind If the accused is not traced at the time closed doors, with only the woman and of the incident, the Police will report the the perpetrator present. circumstances to the Procurator Fiscal

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 7 within the same timescales as if the What should a woman do if accused was detained in custody and, if appropriate, a warrant will be issued for the special bail condition is them. The Procurator Fiscal deals with lifted or about to be lifted? any requests for warrants as a matter of priority. Note that the accused can apply to the Sheriff at any time in the proceedings The victim should always be kept to have the special condition taken informed about the progress of the away. If the woman becomes aware investigation and must be notifi ed as that the special bail condition is about soon as possible, either by the Crown to be lifted she should contact a solicitor Offi ce’s Victim Information and Advice to go to court to get an interdict with Service ( “VIA”) attached to the powers of arrest against the perpetrator. criminal courts, or by the Police, when An accused who has pled not guilty the perpetrator is being released from can change his plea to guilty and, custody. through his solicitor, arrange for the case to be brought forward and dealt with earlier than anticipated. This sometimes happens where an accused Will the perpetrator be has several cases on the go, and wants them all dealt with together, but it can given bail? happen where there is only one active case. Where a guilty plea is tendered, When the accused appears at court unless there is a deferred sentence with from police custody, the Sheriff will bail continued, if the court imposes a decide whether he should be remanded punishment, thereby bringing the case in custody pending a trial or if they to an end, it means that the bail order should be released on bail. ends too. Attention should always be paid to any likelihood of the bail ending The police will request that a special or changing, for whatever reason, and condition be attached to the bail if bail conditions are about to, or likely conditions. This is that the accused to end or change, then the victim can cannot approach the women and go to a solicitor to see about getting an her children, or enter the family home. interdict and power of arrest in place Standard bail conditions are: before the bail order ends. • Appears at future court diets.

• Doesn’t offend while on bail. What if the accused breaks the bail conditions? • Does not interfere with witnesses (which includes the woman) or If the man approaches the woman and/ obstruct the course of justice. or children or contacts them in any way when there is a bail condition imposed, • Makes himself available for enquiries this is a criminal offence and should be or reports to assist the court in dealing reported to the police immediately for with the offence. the safety of the women and children involved. There could be a separate charge of breach of bail if there is enough evidence.

Regardless of whether there is corroborative evidence of such conduct,

8 Domestic Abuse & Forced Marriage - Legal Issues Information Book the police have the power to arrest the The fi nal decision to continue or perpetrator in such circumstances on the discontinue proceedings is for the basis of the woman’s statement only, in Procurator Fiscal alone and in domestic order that the Fiscal can seek a review of abuse cases, the presumption will be to the accused’s bail conditions. continue with prosecution as it is in the “public interest. Therefore, to achieve Note that a review of bail conditions this, in a few cases, women may even can be sought by the Fiscal at any be compelled to attend court to give time if there are concerns about the evidence; if this occurs, it is crucial woman and/or children’s safety due to that the woman be offered support in the accused not being in custody. Any giving her evidence. This support can be concerns as to safety, or intimidation, accessed through the VIA service, the of the woman and/or children or any Witness Service, or through other support witnesses should be reported to the Fiscal organisations such as Women’s Aid or as a matter of urgency. advocacy services.

What if the woman has What will happen when given a statement to the case fi nally comes to the police but decides court? she doesn’t want to give The Sheriff will hear the evidence evidence in court? presented by the Fiscal and the accused’s defence lawyer and come to Women who have experienced a decision as to whether the accused is domestic abuse can sometimes guilty or not guilty. retract their original statements or can be reluctant to give evidence for a If the perpetrator is found guilty, then number of reasons (including previous he may be sentenced immediately or experience of the accused’s conduct the Sheriff may delay sentencing and following a court case). Where this continue the case in order to obtain happens, the Procurator Fiscal must background reports, usually obtained consider the particular circumstances from Social Work .which assist the of the case carefully and may decide Sheriff in their sentencing decision. The to meet with the victim or to instruct the Sheriff may also defer sentencing for a police to interview the victim to explore, period of time in order to consider the sensitively, the reasons for the retraction perpetrator’s behaviour during that or reluctance. Importantly, it must be period, which will then determine the established whether the reason for the sentence. retraction is a result of threats or pressure from the accused or any other person. If the perpetrator is found not guilty, he will be free to leave court. This can be a The perpetration of domestic abuse is a very risky time for the woman if she is not matter which is taken very seriously by aware of the outcome of the case. VIA the Police, Procurator Fiscal service and or the police should contact her as soon the courts. They consider it vital that the as possible to make her aware of what public and the accused understand has happened in the court case and that such offending behaviour will not whether the perpetrator is being held in be tolerated and consequently, the custody or is free and could be heading importance of perpetrators being held home. publicly accountable and facing the criminal consequences of their abuse.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 9 Civil Measures

Those experiencing abuse can apply for traditional and standard remedy where court orders to protect them. The most someone has breached an interdict is common measures used are interdicts for the holder of the interdict to raise and, more rarely, non-harassment a second court action for breach of orders, which have, historically, been interdict. While this still remains a primary less straightforward to obtain (although means of enforcement, over the years, recent changes in law mean that a recognition that more was needed some of these will now be easier to to help victims of wrongful behaviour get). Spouses, registered civil partners to have more potent protection led to and cohabiting couples (whether development of a number of additional same sex or heterosexual) are also remedies. These have tended to fall able to seek exclusion orders in certain under two types: circumstances. All civil remedies have in common that the victim requires to take • Additional features applicable to the step of raising court action and it some interdicts, e.g: does not take effect until the perpetrator o Powers of arrest is made aware of it. o Matrimonial and domestic interdicts All interdicts and non-harassment orders granted in an abuse context, potentially o Domestic abuse interdicts – guard against further molestation, available since 2011 harassment and abuse. • Separate protective orders, e.g. non-harassment orders, exclusion orders, etc What benefi t is an

Interdict? Since 2011 there are also better It is important to understand that an protections available in some interdict on its own is simply an order circumstances for interdicts to protect from the court requiring a person not to against domestic abuse. In this do something which, usually, they should guidance an interdict obtained with the not be doing anyway. An interdict on its benefi t of the new law is referred to as a own is not a powerful remedy against Domestic Abuse Interdict to distinguish a determined abuser. An interdict on it from other interdicts, but this is not an its own can work if the person who is offi cial term – it is simply a particular form targeted by the interdict is responsible of interdict that meets certain qualifying enough to respect the court order. But conditions. Not every interdict granted some people targeted by interdicts do where a person is experiencing domestic not respect the court order on its own. abuse will be a Domestic Abuse Interdict. Interdicts are not criminal law remedies, Where a person is able to get an and so where there is only an interdict in interdict, but not a Domestic Abuse place, someone breaching that interdict Interdict (see later for the difference) does not engage police involvement a non-harassment order may be a unless the conduct is also criminal more effective alternative remedy behaviour (see previous sections). The than the interdict. Where a person can

10 Domestic Abuse & Forced Marriage - Legal Issues Information Book obtain a Domestic Abuse Interdict, a Interdicts under the non harassment order is no longer a more effective measure. In reality the Protection from Abuse practical effects and protections of both (Scotland) Act 2001 are similar. The Protection from Abuse (Scotland) Act 2001 allows the court to grant wide protection from abusers. The Act is useful Proceedings for Breach of because:- Interdict • It extends the opportunity to get In the event of a breach of interdict, if an interdict with powers of arrest to there is reason to do so1, and suffi cient anyone, regardless of their relationship supporting evidence, the person holding to the abuser or where they live. the interdict can raise breach of interdict Previously powers of arrest were only proceedings. If the court holds that there available on “matrimonial interdicts” is a breach of interdict, a punishment (see later). A “Power of Arrest” gives will be imposed. There is no need for the police discretionary powers to corroboration for a breach of interdict arrest and detain the person in breach action, although a victim still needs of the interdict without a warrant, reliable evidence to persuade a sheriff and without the need for that person that the breach occurred2. Breach of to have committed a separate interdict proceedings are a useful way of criminal offence. The power of arrest enforcing a breach of a Domestic Abuse is not a punishment. It is a protective Interdict if there is insuffi cient evidence measure that removes the abuser/ (by virtue of a lack of corroboration) to harasser to a police cell until the next prosecute the offence of breach of a court date when they will be taken Domestic Abuse Interdict. to the , providing that the person holding the interdict has indicated a wish to raise proceedings for breach of interdict. If the person holding the interdict does not take such proceedings, the arrested person is simply released unless the Sheriff considers the steps outlined below • It gives Sheriffs powers to detain the 1 There may not be reason to do so if there has person in breach at a police station for been a separate prosecution and punishment imposed on the perpetrator (i.e. because their a further two days after the arrest conduct was already a criminal offence and • The test which has to be met before they are to be prosecuted for that) and it is unlikely that breach of interdict proceedings getting a power of arrest is that the would achieve anything further. Sheriff views it as necessary to protect 2 The standard of proof required in breach of against breach of interdict by the interdict cases is beyond reasonable doubt person interdicted. A power of arrest is which is the same as criminal cases, but more not granted automatically. onerous that the normal civil standard of “on the balance of probabilities”. Thus breach of • Any powers of arrest attached to interdict is arguably a higher standard than an interdict under this Act don’t other civil cases (including interdict and non- harassment orders, etc.) but by not requiring disappear when divorce is granted. corroboration as a matter of law, there will situations where breach of interdict is possible, when prosecution is not. continues overleaf

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 11 Interdicts can be applied for by: Defi nition of Abuse from • Married women, partners of abusers or the 2001 Act ex-partners Abuse is defi ned in the Act extremely • Children widely to include: • Co-habiting couples violence, harassment, • Same sex couples threatening conduct and any other conduct giving rise or • Cohabitees without relevant likely to give rise to physical or occupancy rights mental injury, fear, alarm or distress. • Other family members This ensures that psychological as well as • Neighbours of the abuser physical abuse is covered. Conduct, within the defi nition of the Children & Interdicts abuse above is stated as including: speech and presence in a Each individual at risk of abuse should specifi c area or place, apply themselves, and children can apply on their own behalf if of suffi cient as well as the obvious acts of violence or age (technically known as having “legal threatening behaviour. capacity”). This means that children By defi ning conduct as ‘presence’ this of twelve years or older can apply on makes it clear that conduct does not their own for an interdict. For children have to be active for it to be abusive. under twelve years of age, a parent or guardian can apply on behalf of the child. The child will still be the applicant, because they are applying for their own Interdicts and the Matrimonial Homes protection and they will be regarded as (Family Protection) (Scotland) Act 1981 the person who has obtained the Power (as amended). of Arrest. If the woman wishes to exclude the abusive partner from the home and get an interdict she should get advice How long does “Power of about using this legislation. Her solicitor will advise about which law to use, Arrest” under this Act last? depending on the circumstances. Note that the courts will not grant an interdict It can last for any period specifi ed, up under this Act which effectively bans an to three years. It’s important to keep abusive partner or spouse from entering in mind the date that the Power of or remaining in the matrimonial/shared Arrest expires at the end of the period home UNLESS the interdict comes with an specifi ed and the person who obtained Exclusion Order/Interim Exclusion Order the interdict may then need to reapply if they want these powers of arrest In terms of interdicts available under the extended further. They should therefore 1981 Act, the new Family Law (Scotland) seek advice from a solicitor before the Act 2006 has strengthened the terms of date on which the power of arrest is due these protective orders. to expire.

12 Domestic Abuse & Forced Marriage - Legal Issues Information Book Matrimonial Interdicts: Interdicts under the The Act amends section 14 of the Matrimonial Homes (Family Protection) Domestic Abuse (Scotland) (Scotland) Act 1981 by extending the Act 2011 scope of the existing matrimonial interdict under the Act (a matrimonial Unlike an ordinary interdict, a breach interdict being one which restrains the of a Domestic Abuse Interdict is in conduct of one spouse towards another, itself a criminal offence, which can or towards a child in the family) beyond immediately be prosecuted by the the matrimonial home to include the police and procurator fi scal. So from applicant’s place of work, home, any the enforcement perspective a breach other residence or the child’s school. of a Domestic Abuse Interdict is just as effective as that of a non-harassment Also, powers of arrest attached to order – if there is enough evidence, they matrimonial Interdicts under the 1981 Act can both be enforced by reporting the now last for a period of up to three years matter to the police, and the police then and not, as before, until divorce starting a prosecution. The same 2011 legislation that brought in Domestic Abuse Interdicts made it easier Domestic Interdicts: to get a non harassment order where The Act introduces a new “Domestic there was domestic abuse. Accordingly Interdict3”, which can only be obtained both these remedies are available to by couples living together (including persons who have suffered domestic same sex couples). These new interdicts abuse at the hands of their partners or will only apply to couples living together, ex-partners. either opposite-sex or same-sex. You must be cohabiting to obtain this interdict. If you are not living with your partner, you can only apply for an interdict under Domestic Abuse Interdicts the Protection from Abuse (Scotland) - Interdicts under the Act 2001 but you do not lose out in protection as you can still ask the court Domestic Abuse (Scotland) to prevent your partner from entering or Act 2011 remaining in the same places that the Domestic Interdict covers. The legislation uses the phrase that an interdict can be deemed a domestic Domestic Interdicts will have much the abuse interdict if it has been made same effect in relation to cohabitees as against a person who is, or was, in an matrimonial interdicts have for married intimate personal relationship with the couples and will cover the same areas. applicant, i.e. partner or ex-partner (see However, the courts have complete the defi nitions of domestic abuse at discretion as to whether a power of arrest the beginning of this booklet for more can be attached to a Domestic Interdict. information). There is no change in the law in relation to abuse by other “non-partners”. Abusive family members who are not partners or ex-partners, whether or not they normally live in the victim’s home, 3 “Domestic Interdict” does not mean “Domestic will not be subject to this improved level Abuse Interdict” -see “Limitations of Interdicts” of enforcement. on next page for explanation.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 13 Limitations of Interdicts Why get a Non Harassment Ultimately, an interdict is a court order Order? on a piece of paper, and it is not total Although it is likely that someone protection against a truly determined experiencing domestic abuse would see abuser who cares nothing for the a Domestic Abuse Interdict, there may consequences of breaching a court be times when they would wish to get a order, however the Domestic Abuse Non Harassment Order. It may be useful (Scotland) Act 2011 has signifi cantly to get a non harassment order because: improved the protection to be had for interdicts that qualify as Domestic Abuse • Breach of the order if a criminal interdicts. offence Please note and bear in mind that • It is punishable by up to 5 years Domestic Abuse Interdicts under the imprisonment or an unlimited fi ne 2011 Act means something different from Domestic Interdicts under the 2006 Act, and confusingly an interdict could one, There are, however, specifi c issues or the other, or both! relative to using a non harassment A further limitation of interdict is that order. Any breach of the order must it specifi es very clearly to the abuser be reported by the woman and the what it is that he or she must not do. standard of proof required by the court Some abusers are sometimes motivated to prove that a breach did indeed occur enough, usually with the help of others is the more exacting criminal standard not covered by the interdict, to continue that the breach must be proved beyond molestation but in ways, or by people, reasonable doubt. The standard of proof not covered by the interdict. used in breach of interdict cases is the less complicated standard of proving that the breach, on the balance of Non Harassment Orders probabilities, did likely occur. A person being harassed or stalked can use the Protection from Harassment Act 1997 to apply to court for a Non Interdicts under the Harassment Order. These are much more diffi cult to obtain than interdicts because Domestic Abuse (Scotland) the applicant must prove to the court Act 2011 that there has been what is referred to as a “course of conduct” constituting This Act changes the Protection from harassment. A “course of conduct” Harassment Act 1997, by making means that there must have been at provision in relation to harassment least two incidents. The Procurator Fiscal amounting to domestic abuse and to can ask for a non harassment order in make breach of an interdict relating the criminal case against the offender. to domestic abuse with a power of arrest attached a criminal offence. It If you are advising women, check doesn’t hugely change legal protection whether there is a criminal case pending available - rather it aims to remove against the abuser and ask if the some barriers within previous legislation Procurator Fiscal intends to seek a Non- to securing legal protection against Harassment Order. This is useful because on-going harassment (this Act removes it means that the woman does not need the need to evidence “a course of to incur the cost of obtaining one herself. conduct”). The legislation also states

14 Domestic Abuse & Forced Marriage - Legal Issues Information Book that an interdict can be deemed a Action of Lawburrows domestic abuse interdict if it has been made against a person who is, or was, in This is an ancient Scottish remedy which an intimate personal relationship with the is still technically competent, in which applicant. an unruly, violent and abusive person can be forced to fi nd monetary security for his behaviour and risk forfeit that money in the event of further behaviour. Exclusion Orders Although still competent and quite Exclusion orders can be granted in a regularly referred to as an option, it is situation where either one or both parties uncommon, and doesn’t offers anything in a relationship have the right to occupy that can’t be better obtained under the a house (whether by ownership or lease). process mentioned above (Actions of The exclusion order is a suspension of Harassment). the occupancy rights of a person to live in the house. The test to be met is that it is necessary for the physical or mental health or well-being of the applicant partner. This is quite a high test, and legal advice will always be required on circumstances where someone wishes to know whether the test will be met. There can be limitations to exclusion orders.

Actions of Harassment In an action seeking interdict and or non-harassment orders, a victim can also claim damages for compensation for loss, injury and damage sustained as a result of abuse, (this is separate from any right to use the Criminal Injuries Compensation Scheme on which separate advice should be taken). Legal advice should be sought on the issues involved, which can be very complicated. It is worth indicating, however, that a claim for damages, even if theoretically possible, may be pointless if the perpetrator has no resources from which any award could be paid.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 15 Forced Marraige etc (Protection & Jurisdiction) (Scotland) Act 2011

New legislation to protect people from The Difference between being forced into marriage came into being in Scotland on 28th November Forced and Arranged 2011. The new Act covers both Marriage heterosexual marriage and same sex civil partnerships and can protect those who Forced marriage is different from are already in a forced marriage or are arranged marriage. In an arranged being threatened with one. marriage, the families of both spouses take a leading role in arranging the marriage but the choice whether or not to accept the arrangement remains with What is a Forced Marriage? the prospective spouses. - Defi nition A forced marriage is a marriage in which one or both spouses do not (or The Forced Marriage in the case of children/young people/ etc (Protection and adults at risk, cannot) consent to the marriage, and duress is involved. Duress Jurisdiction) (Scotland) Act can include physical, psychological, Whilst there is existing legislation that fi nancial, sexual and emotional pressure, can help protect those who are threatening conduct, harassment, threat threatened with a forced marriage, e.g. of blackmail, use of deception and other criminal offences of assault, unlawful means. It is also ‘force’ to knowingly imprisonment, theft (e.g. of a passport), take advantage of a person’s incapacity there is no specifi c criminal offence of to consent to, or understand the nature forcing someone to marry. The new of, the marriage. Duress may be from Forced Marriage etc Act is civil legislation parents, other family members and the that has some specifi c provisions. wider community. These are: Forced marriage is a form of violence • clarifying the position of Sheriffs in against women/gender based violence relation to annulling forced marriages; and, where children are involved, child abuse. It is often associated with other • introducing Forced Marriage forms of domestic abuse and ‘honour- Protection Orders; and based’ violence. • making it a criminal offence to breach a Forced Marriage Protection Order.

16 Domestic Abuse & Forced Marriage - Legal Issues Information Book Forced Marriage Protection More information Orders (FMPO) The Scottish Government has issued guidance on Forced Marriage. A Forced Marriage Protection Order is The Summary of “Responding to Forced granted by a court. A victim of Forced Marriage: Multi-Agency Practice Marriage can apply for one as can a Guidelines” is available at: ‘relevant third party’, such as a local www.scotland.gov.uk and includes authority (this would be similar to a local information on how to react when authority applying for other legislation, someone discloses an actual or potential i.e. an anti-social behaviour order). forced marriage and options for support. A court itself can also apply for one if it believes a person is a risk and that a FMPO would protect them. The order can be issued against someone who is believed to be trying to force someone into marry and can compel them to do certain things, such as surrender their passport or present with the victim at a police station, in order to protect the victim and to stop the forced marriage taking place.

Differences between legislation in Scottish and in the rest of the UK The main difference between the Scottish legislation and that for England and Wales is that in Scotland a breach of a FMPO is automatically a criminal offence. In England and Wales it may not be, if a power of arrest has not originally been attached to the FMPO. In these cases, a person would have to go back to court to ask for a warrant for the arrest of the person who breached the order. It is important when giving information on Forced Marriage legislation that we use guidance issued in Scotland.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 17 Finding a Solicitor

If a woman wishes to apply for a The Civil Legal Assistance Offi ce in protective order, she needs to get a Inverness can be contacted on: solicitor and should look for one who 0845 123 2353 does family law. Most solicitors who practice civil law also do family law. The woman may also need to check that the solicitor’s fi rm will carry out the work under Legal Aid funding. If a woman needs help identifying a solicitor she can contact The (0131 226 7411). Personal recommendation by word of mouth is another way of fi nding a good solicitor and advisors may wish to contact organisations such as Women’s Aid for names of solicitors either themselves or women have had a good service from. The Civil Legal Assistance Offi ce – Highland & Islands (“CLAO”) has been set up by the to assist people resident in the Highlands and Islands who have diffi culty fi nding a solicitor or who have unmet civil (not criminal) legal need. As it is part of the Scottish Legal Aid Board, CLAO is a public service. The CLAO operates a referral system for people eligible for civil legal aid, and will fi rst try to fi nd an appropriate solicitor in private practice, able and willing to take the case on under legal aid. If such a solicitor cannot be found, CLAO’s own solicitors will usually be able to take the case on themselves subject only to the type of case and the capacity in the offi ce workload at the time, but cases relating to the sorts of issues covered in this guidance are usually able to be taken on.

18 Domestic Abuse & Forced Marriage - Legal Issues Information Book Legal Aid

Legal Aid can be an important factor • Civil Legal Aid – the form of Legal Aid in being in a position to pursue a legal required for a court action. remedy for women experiencing domestic abuse. Legal Aid is basically Advice & Assistance is granted by the the way that the state pays for legal solicitor based on information given to services to be provided to individuals, the solicitor and is available quickly. and usually, if Legal Aid is not available, Civil Legal Aid requires an application legal services will require to be paid to be submitted to the Scottish Legal for privately. Legal services, especially Aid Board (SLAB) in Edinburgh and the if a court action is involved, can be application process has a number of expensive. steps which means that it can take up to several weeks to prepare and lodge There are a number of types of Legal an application for Civil Legal Aid, and Aid, but only two are relevant and several more for it then to be processed. considered here. The different forms There are however special urgency of Legal Aid not only apply to different steps that can be taken in emergency types of work done by legal services, but situations where urgent court action is there are also different eligibility criteria required but Civil Legal Aid has not yet and it is not at all uncommon to fi nd that been granted. a person is eligible for one form of Legal Aid, but not for another. Information on the fi nancial aspects of eligibility is available in leafl ets which are Although you can gauge eligibility for widely available, and online at the SLAB Legal Aid before applying for it, you website (www.slab.org.uk) or from the cannot actually make an application Citizens’ Advice Bureaux (CABx) until you have found a lawyer able and and other advice agencies. willing to undertake the work you seek Either form of Legal Aid can involve done on a Legal Aid basis. Finding a payment of a contribution, although lawyer who does Legal Aid work can be for those with very low or core benefi t diffi cult in some parts of the country but income, there is usually no or a small not in others. Finding a solicitor who does contribution. Legal Aid work and who also has got the ability to reorganise their other work so as Advice & Assistance in relation to to be able to handle the signifi cant work cases involving abuse, harassment or involved an interdict case at short notice molestation is generally granted subject is much more diffi cult. only to the means test applicable. For Civil Legal Aid, as well as a means test, The two types of legal aid usually the Scottish Legal Aid Board are also relevant in the current context are: required to consider whether there is a state-able case, and that it is reasonable • Advice & Assistance – this covers to grant legal aid. preliminary work with a lawyer including meetings, correspondence, A solicitor will explain to a client the full advice and preparing an application details of Legal Aid. for Civil Legal Aid, but Advice & Assistance stops short of covering the work required for a court action.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 19 Housing & Domestic Abuse

Getting a court order to keep the abuser 2) The woman is not the tenant / joint away from the home - Exclusion tenant, or is not the owner/ joint owner Orders of the family home. In this case, the woman does not have automatic occupancy rights but can Cohabiting Women apply to the Court to get occupancy rights. At the same time as applying The woman is not married to the abuser for her occupancy rights, she can but they are living together as husband apply to get the abuser excluded and wife. 1) The woman is the tenant / joint tenant, or is the owner/ joint owner of the Married Women family home. 1) The woman is married and is the Because of her owner or tenant status, tenant/joint tenant, or owner / joint the woman has automatic occupancy owner of the family home. rights. This means that she has the right to stay in the home and not be put out All married women have an automatic by her partner. right to stay in the family home. If she wants to get the abuser excluded, she If her abusive partner is a joint tenant needs to apply for an Exclusion Order. or owner, or has applied to, and been granted occupancy rights by the 2) The woman is married but is not the court, then she needs to apply to the tenant or joint tenant, nor does she Sheriff Court to get an order known as own or jointly own the family home. an Exclusion Order to keep him out of Being married, the woman still has an the home. automatic right to stay in the family If her abusive partner is not a joint home. Again, if she wants to get the tenant or owner, or has not been abuser excluded, she needs to apply granted occupancy rights by the for an Exclusion Order. court, she has no need to apply for an Exclusion Order, because he has no legal right to reside in the property. She can tell him to go and has the right to change the locks on the property after giving him reasonable notice to leave and remove his property. If the abuser refuses to leave, she can apply for an Order for Summary Ejection, enforceable by Sheriff Offi cers, to forceably remove him.

20 Domestic Abuse & Forced Marriage - Legal Issues Information Book Other Orders What if you don’t own A woman can also apply to court for the house but there are orders to do with the family home: mortgage arrears? • An order to get the tenancy put into If the lender raises an action in terms of her name. the standard security over the house • An order to be able to use the furniture due to arrears, even if you don’t own the in the house. house, you are still entitled to be notifi ed about such an action. You can lodge • An order so that the abusive partner a Mortgage Rights defence, but you has to contribute to certain household must seek legal advice. If you qualify for costs, for example, hire purchase costs income support, you may qualify for help for a household item. with your mortgage payments from the Department of Work and Pensions. See a welfare rights offi cer or other welfare benefi ts advisor. What if you own your home and can’t pay the mortgage? Homelessness If there are mortgage arrears, caused by A woman fl eeing domestic abuse may your partner leaving the home, and the fi nd herself homeless. This section is about lender raises a court action against you, her rights to housing. The main legislation you can lodge a defence to the action she can use is: in terms of the Mortgage Rights Act 2001. • Housing (Scotland) Act 1987 You can make an arrangement to repay • Housing (Scotland) Act 2001 the arrears at a reasonable rate, along with your monthly mortgage. • Homelessness, etc (Scotland) Act 2003 Your lawyer will tell the court that the • Matrimonial Homes (Family Protection) reason for the arrears was that your (Scotland) Act 1981, as amended income has changed/reduced because (information on this legislation is your partner has left (or you had to get included in the ‘Civil Measures’ section them excluded). of this booklet) The 2001 Act places a duty on local authorities to ensure that advice on homelessness and the prevention of homelessness is available free of charge to anyone who wants it. It also places certain duties on local authorities in terms of access to and provision of temporary and permanent accommodation. This gives women and their children certain rights when they are fl eeing domestic abuse.

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 21 What Rights to Housing Did the woman become does the Woman Have? intentionally homeless? If a woman has to leave the home If a woman has to give up a house because of domestic abuse, and it is not due to domestic abuse or because safe for her to return, she is by defi nition of the risk of domestic abuse then the homeless and in priority need in terms of local authority cannot decide she is the 2001 Act. It is necessary for a Local intentionally homeless. Authority to make a formal assessment of this status, following which there is a right to a permanent housing outcome. Is there a right to appeal A woman is homeless even if she has accommodation and: against a decision not She cannot secure entry into the to treat someone as house. homeless? Or There is a right to an internal review of the decision not to accept someone There is a threat of domestic abuse as homeless. There are time limits for if she continued living there, from a making the review (within 21 days) and partner or ex-partner. the review should be made in writing. She should contact her nearest local Seek advice from a housing advisor in authority housing offi ce or service point those circumstances. to make a homelessness application. If the review is unsuccessful, there may An assessment of homelessness will be be scope for bringing a Judicial Review made as soon as possible and if out of case. hours an assessment can still be made by calling the Housing Out of Hours Service The circumstances in which someone on 0845 700 2005. can raise a Judicial Review are limited but the woman should take advice from a solicitor about this. Is the woman entitled to any help while the Council is making enquiries about the application? Yes. There is a duty on the council to provide temporary accommodation to all homeless persons, while they progress enquiries, where there is no other accommodation available.

22 Domestic Abuse & Forced Marriage - Legal Issues Information Book Other Help

of Income Support, Income Based Job Benefi ts Seekers Allowance, Housing and Council Women who leave an abusive partner, Tax Benefi t, Pension and Tax Credits may be eligible to claim a number of potentially increasing the amount of benefi ts in their own right. The Highland money you receive, they may also Council provides free benefi ts and qualify you for concessions on public money advice to anyone living in the transport, exemption from road tax, the Highlands. The Council has produced a Blue Badge Scheme, and the Motability guide giving an overview of the benefi ts Scheme. that are available and information They can also assist you with advice and relating to the service provided by the support if your Benefi t is turned down and Customer Income Maximisation Team you wish to appeal against the decision, and the Money Advice Service. More and if required provide accompany you information about the services is included and provide representation at Tribunal below: Hearings. Getting in touch with them is the fi rst step Customer Income to maximising your potential income. You can contact The Highland Council’s Maximisation Team Income Maximisation Team on: The aim of the team is to put more 0800 090 1004 money in people’s pockets so that they or by Email at: can pay bills, heat homes and have [email protected] a better quality of life. They do this by ensuring that individuals who are eligible or by writing to us at: for Benefi ts and other entitlements have PO Box 5650, Inverness, IV3 5YX the advice and assistance available to them to access their full entitlement. They can advise you about all the benefi ts and other entitlements that are available, undertake benefi t checks to ensure you are not missing out on any benefi ts and provide assistance to help you complete the relevant forms. Many benefi ts are means tested however some are not; some are based on your individual circumstances where you need help to look after yourself because of physical or mental disabilities, for example Disability Living Allowance and Attendance Allowance, which if awarded act as a gateway to other types of help which can include additional premiums in the assessment

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 23 Money Advice Services In some cases you may be eligible for a Debt Arrangement Scheme i.e. a free You can contact the Council’s money debt management plan. We have advisers on: approved advisers who can help you 0800 090 1004 make an application for this Scheme. or by Email at: A Debt Arrangement helps you [email protected] repay your debts in a managed way, protecting you from action by your Everyone is facing fi nancial challenges creditors. If the Debt Arrangement these days and for many people, for a Scheme is approved, interest and variety of reasons, their outgoings are charges on your debts will be frozen. exceeding their income. More information on Debt Arrangement If you feel your fi nances are out of Schemes can be found at: control, The Highland Council’s Money www.moneyscotland.com Advice Service can provide advice and You can fi nd out more about debt and assistance to help you deal with your the consequences at: debts. We can: www.aib.gov.uk/guidance/publications/ • check if you are getting all the income debtbankruptcy/DebtandConseq/ you are entitled to; debtcons • tell you what creditors can and can’t If you feel you would like to try and deal do; with your debts yourself, you can contact the National Debtline on: • discuss which options are available to 0808 808 4000 you, to help you deal with your debts; and or go to their website at: www.nationaldebtline.co.uk/scotland • get in touch with your creditors and negotiate on your behalf, taking the stress out of dealing with your bills. Other sources of help: You can also get help and advice on They aim to provide a same day Benefi t and Money Advice issues from response if you contact us by telephone your local Citizens’ Advice Bureau (CAB). or email. If you contact them, you will be given advice by an experienced Money Adviser, so if you are worried and don’t know who to turn to, why not call to talk things over? They can deal with all types of debts – including mortgage, rent and Council Tax arrears, no matter what stage they’re at. Getting in touch is the fi rst step to freeing yourself from those sleepless nights and the cycle of ‘robbing Peter to pay Paul’. They also provide a free, one payment facility to help you repay your debts via your bank or using a Paypoint card.

24 Domestic Abuse & Forced Marriage - Legal Issues Information Book Support Services

Domestic Abuse Helpline (24 hour) FREEPHONE 0800 027 1234 Caithness & Sutherland Women’s Aid 0845 408 0151 Lochaber Women’s Aid 01397 705734 Inverness Women’s Aid 01463 220719 Ross-shire Women’s Aid 01349 863568 Community Violence & Abuse Support Service (Badenoch, Strathspey & Nairn) 01479 812144

Rape & Abuse Line (Women) 0808 800 0123 (7pm-10pm) (answered by women most evenings)

Rape & Abuse Line (Men) 0808 800 0122 (7pm-10pm) (answered by men on selected evenings)

Police 01463 715555 In an emergency 999 Housing Department 01463 702888 (Emergency out of hours) 0845 700 2005 Social Services 01463 703456 (Emergency out of hours) 0845 769 7284 Advocacy Highland 01463 233460 Amina Muslim Women’s Helpline 0808 801 0301 Hemat Gryffe Women’s Aid Glasgow Asian, black minority ethnic women and children 0141 353 0859 Shakti Women’s Aid Edinburgh Black and minority ethnic women and children 0131 475 3299 Victim Support Highland 01463 258834 Useful Websites www.domesticabuse.co.uk www.zerotolerance.org.uk www.amnesty.org.uk www.un.org

Droch Dhìol san Dachaigh & Pòsadh Èignichte - Leabhar Fiosrachaidh 25 Produced by The Highland Council PR12-5-F 26 Domestic Abuse & Forced Marriage - Legal Issues Information Book