Domestic Abuse (Protection) (Scotland) Bill 2020 – Consultation Response

Scottish Parliament flying saltire

Domestic Abuse (Protection) (Scotland) Bill 2020 – Consultation Response

Please see below our consultation response from the Scottish Government on the Domestic Abuse (Protection) (Scotland) Bill 2020. We commend the Scottish Government for pushing forward with this bill and support its main ideas and principles, although we have some ideas we hope are considered so that people who are threatened with or are experiencing domestic abuse can live safer lives.

If you or anyone you know is experiencing domestic abuse then please check here for further information on how to get support www.scotland.police.uk/keep-safe/domestic-abuse

Domestic Abuse (Protection) (Scotland) Bill (2020)

  1. Do you agree that a senior police officer should be able to impose a short-term Domestic Abuse Protection Notice (DAPN), without first seeking court approval, as proposed in sections 4-7 of the Bill? If so, what advantages would a DAPN have over the existing police and court powers?

Homeless Action Scotland are in full support of DAPN being issued by senior police officers. They will allow interim measures to be put in place in order to protect victims of domestic abuse while due process is followed by the courts.

  1. Do you agree that the civil courts should be given powers to make a Domestic Abuse Protection Order (DAPO), as proposed in section 8-16 of the Bill? If so, what advantages would a DAPO have over the existing police and court powers?

Section 9:67 – We believe that an order should not be limited in what the victim of domestic abuse says at the time when the order is created. When the DAPO is issued the victim of domestic abuse may not be intending to go to work, further education or other settings they regularly attend. This may change during the duration of the DAPO for a variety of reasons, which could come from how the victim feels within themselves or from external pressures such as having to return to work for fear of losing their job. At Homeless Action Scotland we feel that the perpetrator when the order is being given, should explicitly be told places to avoid, where the victim is known to go to, even if the victim says they may not go there during the duration of the order.

We feel this will better safeguard victims from potential harm or distress should they wish to change their mind in returning to work, college, place of worship or any other place they are known to frequent. It is easy enough to insert a reasonable test on these proceedings which are at a Sheriffs discretion.

Homeless Action Scotland is concerned that should the perpetrator only be barred from approaching the victims home without there being explicit protections from other places the victim is likely to go, we are missing an opportunity to offer better protection to victims of domestic abuse. We are also creating additional pressure on the victim to not want to change their mind because they happened to say they were not going to go to work for the duration of the order. We believe this course would give much more power back to the victim, which we believe is the intent of this Bill.

Extension of the provisions to other types of family relationship or circumstance

  1. Section 1 of the Bill requires the two people covered by the DAPN or DAPO to be spouses, civil partners or in an ‘intimate personal relationship’ with each other. In addition, the suspected perpetrator must be aged 18 or over and the person at risk must be 16 or over. Do you agree with this overall approach or do you wish to suggest any changes? In the Domestic Abuse Bill, that is currently making its way through the UK Parliament, a broader approach is proposed for England and Wales, extending to other family relationships and people sharing a house in other circumstances.

We believe there should be a wider interpretation of who should be afforded protection by the proposed legislation. Households are increasingly moving away from “spouses, civil partners or in in ‘intimate personal relationship’”. Household members may live with one another in the same home in a variety of configurations and if we limit our interpretation of domestic abuse as those described above we will not be protecting the domestic safety of the whole of Scotland.

Domestic abuse can happen between adult siblings, friends, cousins or anyone contained within the household. We believe that the legislation should cover all forms of domestic abuse and by excluding those not in a marriage, civil partnership or intimate personal relationship we are not protecting everyone at threat of domestic abuse in a household. These types of households may be a minority but that should not mean that they are not afforded the same protections as other adults vulnerable to domestic abuse.

Processes to be used for imposing a notice or granting of an order, timescales and the role of the police

  1. Under section 8 of the Bill only police officers would be able to apply to the court for a DAPO. Do you agree with this approach or do you think the power to apply should be extended to other individuals or organisations? If the latter, who would you wish to include?

Homeless Action Scotland believe that it should only be police who are able to issue such orders.

  1. Do you agree with the tests (set out in section 4 and section 8 of the Bill) which must be satisfied for the making of a DAPN and a DAPO respectively?

Yes

  1. Do you support the definition of ‘abusive behaviour’ (in sections 2 and 3) which is a key component of those tests?

Section 2:15 we would like emotional harm to be included in the terminology as although similar to, is distinct from psychological harm. Physical and psychological harm infers that there has to be some form of medical issue or treatment which may be required. By including emotional harm in the terminology we are empowering people who are suffering from harm who are not being physically or psychologically harmed, but are being no less damaged by the person perpetrating the domestic abuse.

  1. Under the Bill, a DAPN lasts until a DAPO (or interim DAPO) is made. A DAPO can last for a maximum of three months. Do you agree with the proposed maximum periods the DAPN and DAPO can last for?

The legislation seems to indicate that a DAPN can last indefinitely until such time as a Sheriff holds the hearing for the DAPO. Courts cases and in particular cases relating to domestic abuse can often take time to be heard, irrespective of what the legislation dictates and the efforts of the judiciary and police. We would therefor feel that so long as the victim is not in further danger or thought to be in further danger and that the case has taken longer than can reasonably be expected that there should be some form of appeals process to have the DAPN removed. The DAPN is issued by a police officer based on an assumption that there has been domestic abuse and can have severe restrictions on the movements of the suspected perpetrator. Where we believe this is the best course of action while court proceedings are working well, it may be worth considering if the case is taking longer to get to the DAPO stage and that person A (the victim) is no longer in any danger or suspected of being so that an appeal can be heard by a senior police officer who has not been part of the investigation. Victims must be front and centre of this legislation, but untried and people who have not been convicted should not have their movements restricted indefinitely. An appeals process may find that it is still in the interest of the victim for the DAPO to remain in place, but we feel that there has to be some check and balance on this aspect of the process, which an appeals system would provide.

It is our understanding that DAPO can be reapplied for after the three months have passed, in which case the three month maximum seems proportionate. However if it is not able to be reapplied in a speedy and timely way, or there are any chances of one DAPO timing enabling a time period between reapplying another DAPO then we believe that the DAPO should remain indefinitely. This DAPO would then remain in force until such times as the victim has been able to confirm they are now safe or have used other judicial methods to protect themselves from being harmed by the perpetrator.

  1. Do you agree that breach of a DAPN and breach of a DAPO should be a criminal offence, as proposed in sections 7 and 12 of the Bill? Do you support the penalties proposed for breach of a DAPN and breach of a DAPO?

Yes

The content of the notice and order – including how the Bill impacts children

  1. Sections 5 and 9 of the Bill says which obligations a DAPN and a DAPO can include. As well as obligations relating to the person at risk’s home and contact with the person at risk, both a DAPN and a DAPO can impose obligations relating to a child usually living with a person at risk. Do you agree with the approach of the Bill under sections 5 and 9 or do you wish to suggest any changes?

We agree with a child usually living with a person at risk of domestic abuse being included in this legislation. We would however also include a mandatory referral to social work services should there be a DAPN or DAPO order. We understand that there may be other legislative frameworks which compel the police to report aspects of domestic abuse to social services but we see no reason why this should not be included as a mandatory aspect of this new legislation.

  1. Do you think the Bill is clear about what should happen when the terms of a notice or order conflicts with an order relating to children imposed under family law?

We think this aspect is out with our expertise and better answered by those individuals and organisations that are expert in this area.

Removal of a domestic abuse perpetrator’s interest in a Scottish secure tenancy

  1. Do you agree with the approach in section 18 of the Bill, introducing an additional ground to end a social housing tenant’s interest in a tenancy? If so, what benefits does this power have over and above existing statutory powers?

We agree with the principle of section 18 as long as the ending of the tenancy agreement, only if found guilty of an offence of domestic abuse against someone they are living with.

The termination of the tenancy must only take place in order to create a new tenancy with the person who was the victim of the domestic abuse. If there are rent arrears, ASBO orders or any other issues associated with the victim of domestic abuse this must not stand in the way of the victim being entitled to the new tenancy. The tenancy that is being ended for the person convicted of domestic abuse is not intended to make the victim homeless, this is the whole point of this part of the legislation. However if it is not part of the legislation that other factors should be taken into consideration when creating the new tenancy for the victim, we are fearful some victims may end up being homeless due to local housing policies around rent arrears, ASBO’s and other aspects of letting properties.

An example of this would be where there were rent arrears attached to the tenancy that the person found guilty of domestic abuse had Scottish Secure Tenancy. These rent arrears should not come into consideration when the new SST is transferred over to the new tenant, who was the victim of domestic abuse. There may even be a case for some of these rent arrears to be written off, particularly if there are elements and evidence of financial control as part of the abusers tool to abuse their partner.

We also believe that should the victim of the domestic abuse wish to move to another part of the area they live and the landlord has stock, then the legislation provides that they are moved. Victims of domestic abuse often feel fearful of the place where the abuse takes place. If we are trying to support victims with this legislation then not only should we be giving victims the control over their current tenancy, we should be moving them to another property that their current landlord owns if this is their preference. There may be local policies which dictate that this may be able to happen but it is our experience without it being part of the statutory legislation, victims of domestic abuse have been let down by their landlords time and again. If we are serious about protecting the vulnerable we must ensure that being given a move to another property once the victim has the SST is part of this legislation.

If we truly want to empower victims of domestic abuse then we cannot be creating a tenancy for the victim which is leaving them impoverished or feeling unsafe. We believe that without the additional changes to the legislation then victims of domestic abuse are only having the perpetrator removed. The trauma and financial hardship that will inevitably fall on the victim should be something we use legislation to mitigate and we believe that the above actions would go some way to do this.

  1. If you are responding on behalf of an organisation, what impact (if any) would the Bill have on your organisation? Is there any issue associated with the Bill you wish to comment on, not already covered by questions 1-9?

We believe that this legislation is important in order to safeguard people from domestic abuse. However, with regards to housing, we respectfully request that there will be some follow-up legislation which will include similar protections from homelessness for victims of domestic abuse for those living in the private rented sector and for those who are homeowners. We appreciate there are different legislative frameworks around these types of tenures, but if we can legislate to protect people in RSL and council properties, we can legislate to protect people that are homeowners or renting privately.

We therefore call for a commitment from the Scottish Parliament to work towards creating parity across all tenures in Scotland for victims of domestic abuse.

Domestic abuse is a toxic aspect of our society and this bill will go some way to help support people who are victims of it. However once a person has committed a crime and been served their sentence they should then still be able to access housing and homeless services, so long as this does not threaten, potentially threaten or harm the victim of domestic abuse. Someone who has been convicted of domestic abuse must still be able to access homeless and housing services.

There have been many occasions where decisions of intentionally homeless were made against someone who has committed domestic abuse crimes. We do not believe that disbarring someone who has committed a domestic abuse crime from homeless or housing services is in the interests of anyone, so long as those rights do not in any way impede the rights and vulnerabilities of a person or person’s they have committed crimes against in the past. The criminal justice system is for punishing and/or rehabilitating criminals, housing and homeless services are for providing homes and accommodation for people who need it.

However distasteful we might find the actions of an individual. Human rights are universal and need to extend to all.

 

 

You can find out a bit more about the bill including what other organisations and other individuals have said in the below links

https://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/

https://yourviews.parliament.scot/justice/domestic-abuse-protection-bill/consultation/published_select_respondent

Should you have any questions or wish to discuss any of our positions in this consultation then please get in touch with garry@homelessactionscotland.org.uk.