SWRC Inform: Protective Orders

Welcome back to our series of blog posts on Domestic Abuse and Scots Law – Training for Solicitors following our first SWRC Inform seminar by Helen Hughes. In our last post, we looked at ‘What Solicitors need to know about Domestic Abuse’. This blog covers some of the key points we learned at the seminar about protective orders.

Protective orders are important tools that solicitors can use to help make, or keep, clients impacted by domestic abuse safe. Helen provided an overview of the protective orders available in Scotland to people affected by domestic abuse, highlighting the relevant legislation in relation to: exclusion orders, non-harassment orders, powers of arrest, and interdicts.

Safety First

In terms of keeping the victim of domestic abuse safe, Helen identified a number of important points which solicitors should keep in mind. These may also be helpful to note for those supporting victims of domestic abuse. These include:

• Reporting to the police may be the best option for the client in their circumstances (there may be reasons why clients do not wish to report to the police – solicitors can discuss this with the client to help them to decide the best way forward).

• Where protective orders are sought via civil courts, jurisdiction can be founded on the basis of where it is alleged that the wrong complained of is likely to be committed; however, solicitors should be mindful that this could alert the perpetrator to the victim’s location if they are not already aware. Again – safety first!

• Where it can be established that the client is in danger, the client’s address within the Initial Writ can be stated as care of his/her solicitors in order to avoid the Defender becoming aware of the client’s whereabouts. Solicitors must, however, explain in the Initial Writ why it is not safe for the client’s own address to be used.

• In terms of the Domestic Abuse (Scotland) Act 2011 solicitors can ask for a determination that the protective order is a Domestic Abuse interdict. If that determination is granted and the court also attaches a power of arrest to the interdict, if breached by the perpetrator this would be a criminal offence as defined in the 2011 Act.

• The 2011 Act amends the Protection from Harassment Act 1997 so that, in situations of domestic abuse, only one incident of harassment is required in order to apply for an interdict / non-harassment order. However, in practice, it could be difficult to obtain an order where there is only once incident (although this would depend on the particular circumstances).

Practical Tips

In practical terms, solicitors undertaking this type of work should:

• Be in a position to raise actions quickly where necessary.

• Ensure they are aware of all of the information, evidence, and pleadings which would be necessary to be successful in obtaining protective orders. This varies depending on the type of order being sought.

• Obtain affidavits from witnesses, which are necessary to obtain exclusion orders (including interim exclusion orders) and non-harassment orders. Affidavits can also assist where an interim interdict (including interdicts with a power of arrest attached) is required.

• Be aware of the circumstances in which an order (including a power of arrest) would no longer be in force; request the appropriate timescale for the order and seek to renew it where appropriate.

• Advise victims of domestic abuse that they can raise actions for damages in relation to non-harassment orders and can also apply for compensation to the Criminal Injuries Compensation Authority.

Helen’s important overview underlined the need for solicitors – and anyone involved in supporting victims of domestic abuse – to be aware of these orders and what these can do to help protect victims. To support solicitors in this regard, Helen informed seminar attendees that the SWRC hopes to run a full-day training session on protective orders later this year. If you are interested in attending, keep an eye on our website and social media pages to find out more about our future training events!