Professor Gillian Black

With over 61,934 incidents of domestic abuse recorded by Police Scotland in the year 2022 to 2023 (of which 81 per cent involving a female victim and a male suspected perpetrator, where gender information was recorded), it is clear domestic abuse is a significant problem in Scotland. While criminal law can tackle many aspects of domestic abuse, civil protection orders are a crucial tool in helping to protect victims.

The Scottish Law Commission is reviewing the legal protection available for victims of domestic abuse in the civil context. It published its Discussion Paper on Civil Remedies for Domestic Abuse yesterday, setting out a wide range of consultation questions, and seeks views on these options for reform of the law by 22 January 2025.
 
Key criticisms of the law include:

• The legislation is complicated and fragmented, spread over a number of acts;
• There is insufficient recognition of the impact of domestic abuse on children;
• There is a lack of joined up thinking and communication between the civil and criminal courts dealing with family law actions;
• The terminology is confusing and inconsistent; and
• The remedies are not working as well as they should.

The discussion paper seeks to address these and other problems identified, and to improve the law of civil remedies for domestic abuse, by offering better protection to victims (and their children) in Scotland.

In addition to making suggestions for reform of the existing law, the discussion paper proposes the introduction of a new delict of domestic abuse, together with (for the first time in the civil context) a definition of domestic abuse. This definition could also include specific elements such as tech abuse, immigration abuse and economic abuse.

This new law would be accompanied by a suite of remedies (available individually or in combination) to help victims where domestic abuse is established in court. Remedies would include a protective order to prevent future wrongful conduct, a barring order excluding the perpetrator from the home, an order for damages, orders for the return of documents and other property, and an order regulating the care of and responsibility for a pet. The commission proposes enabling a victim to seek these remedies against their abuser, as well as associates of the abuser where they are also carrying out abuse against victims.

The discussion paper considers how children are impacted by domestic abuse which takes place between their parents, as well as in their own relationships, and the degree to which domestic abuse is considered by the court in contact and residence decisions. Some suggested reforms are proposed, including that children should be recognised as “adjoined victim/survivors” where they have a family connection with the abuser and/or the victim. This would help ensure they can seek the new remedies proposed, or an existing civil protection order, in their own name.

Access to justice issues are also considered, in particular whether special measures in court should be more widely available to victims of domestic abuse and the lack of integration between the criminal justice system and the civil justice system in cases involving domestic abuse. Suggested reforms are again proposed.

Possible reforms to the existing legal framework are also proposed, in particular in relation to occupancy rights in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1980 (such as whether cohabitants should have to apply to court for a declarator of occupancy rights, unlike spouses and civil partners). The commission is keen to hear from property lawyers in relation to the occupancy rights proposals.

Ensuring that Scots law offers meaningful civil protection orders for victims of domestic abuse is critical. The current law is overly complex and the available remedies are limited. This discussion paper is an important step to achieving the law reform required, and we are keen to hear from anyone with an interest in the civil law regarding domestic abuse. Responses to this consultation exercise will help ensure that the final recommendations we make to the Scottish Government for law reform are supported and informed by the public and the profession.

The Scottish Law Commission invites anyone with an interest in this area of law to respond to as many of the questions in the discussion paper as they feel able to answer. The deadline for responses is 22 January 2025.