Domestic abuse protection orders
Section 8 – Making of domestic abuse protection order
55.Section 8 sets out the process for applying to the court for a DAPO. The application will be made in the name of the chief constable but section 18(1) of the Police and Fire (Reform) (Scotland) Act 2012 enables the chief constable to direct or authorise any other constable to carry out any of his functions.
56.Section 8(1)(a) provides that where a senior constable has made a DAPN, the chief constable must apply to the sheriff for a DAPO in relation to the person to whom the DAPN has been given. Section 8(1)(b) further allows the chief constable to make an application for a DAPO in any case in which a DAPN has not been given (see also discussion of section 18 below).
57.Section 8(2)(a) sets out the tests which the sheriff must apply in determining whether to make a DAPO. These are that: person A has engaged in behaviour which is abusive of person B; there is an immediate or imminent risk of person A engaging in further behaviour which is abusive of person B; and that it is necessary to make the order to protect person B from abusive behaviour by person A. The sheriff may make a DAPO only if satisfied on all of these points.
58.If the sheriff is so satisfied, they may make a DAPO, even if person B has expressed a wish for the DAPO not to be made. This is by virtue of section 8(2)(b), which provides that a sheriff may make a DAPO without the consent of person B. This does not mean that person B’s views are irrelevant: under section 8(6), the sheriff must give person B an opportunity to make representations about the application for a DAPO and under section 8(7)(a), the sheriff is under a duty, in determining an application for a DAPO, to take into account whether person B wishes a DAPO to be made or not (in so far as the sheriff is aware of those views). Where person B does not wish a DAPO to be made, the sheriff must also take into account the reasons for that view (again, in so far as the sheriff is aware of such reasons).
59.The duties under section 8(7) only apply in so far as the sheriff is aware of person B’s views and the reasons for them, although the sheriff does not need to have become aware of the views or reasons directly from person B. For example, the sheriff might be aware from representations made by the chief constable that person B’s expressed wish that a DAPO not be made may be due to coercive and controlling behaviour by person A. In such a case, the sheriff would need to take account of all of that information in determining the application.
60.Section 8(3) provides that, in determining whether person A has been abusive towards person B, it does not matter whether the abusive behaviour occurred in Scotland or elsewhere.
61.Section 8(4) provides that, in deciding whether it is necessary to make a DAPO to protect person B from abusive behaviour by person A, the abusive behaviour the court has in mind must include, but need not be limited to, the behaviour that the sheriff considers there is a risk of occurring immediately or imminently. This means that the sheriff can also have regard to any risk of abusive behaviour that may occur at a later point in time (although this needs to be read in the context of the DAPOs only lasting for a maximum of two months, which may be extended on application to three months).
62.Section 8(5) provides that the sheriff may permit person B to become party to proceedings.
63.Section 8(6) provides that, before determining the application, the sheriff must give an opportunity to the chief constable, person A and person B to make representations about the application, although section 10(5) enables the sheriff to make an interim order even if such an opportunity has not been given.
64.Section 8(7)(a) has already been discussed above at paragraph 58. Section 8(7)(b) provides that the sheriff must also take into account any other views of person B in relation to the application of which the sheriff is aware. This would include, for example, any particular requirements or prohibitions that person B may or may not wish to be included in such an order, or the length of time for which person B thinks it should have effect. Person B may, for example, have plans to move to alternative accommodation and wish for the order to have effect only until they have moved away from the accommodation they share with person A.
65.The requirements under section 8(7) apply in so far as 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, such as person B expressing them to the police, or to a support agency worker.
66.Section 8(8) sets out other matters which the sheriff is required to take into account in determining an application for a DAPO. The sheriff is required to take into account any representations made to the sheriff by the chief constable or by person A and the welfare of any child whose interests the sheriff considers to be relevant to the application. In the majority of cases, this is likely to be a child who normally resides with person B.
67.Section 8(8)(b) applies in all cases where there is a child whose interests the sheriff considers to be relevant. Section 8(9) and (10) then impose additional duties on the sheriff which apply only where the sheriff is considering making provision in an order which would relate directly to a child (such as a requirement that person A should not contact or approach the child). These additional duties do not apply where provision in an order indirectly affects a child (for example, a provision prohibiting person A from entering or coming within a specified distance of person B’s home, at which the child lives, although as already noted, the requirement to consider the child’s welfare at section 8(8)(b) must still be complied with in such a case). The first additional duty where provision would relate directly to a child is a duty on the sheriff to take such steps as are reasonable in the circumstances to give a child an opportunity to express views in relation to any matters relating directly to the child on which the sheriff is considering making provision in a DAPO. The sheriff is then required to take into account any views of the child of which the sheriff is aware, whether as a result of the steps taken to give an opportunity to express their views or otherwise.
68.Section 8(11) provides that in taking account of any such views of the child, the sheriff must take into account the child’s age and understanding.
Section 9 – Content and effect of order
69.Section 9 sets out the provisions that may be included in a DAPO and the period for which it has effect.
70.Section 9(1) provides that a DAPO is an order which requires person A to do, or prohibits A from doing, a thing or things specified in the order.
71.Section 9(2) provides that the requirements and prohibitions may include, but are not limited to, any requirement or prohibition which can be imposed by a DAPN under section 5(1). This might include, for example, a requirement to leave the place where person B is living, or a prohibition on contacting or approaching person B. In contrast with the DAPN, there is no exhaustive list of provisions which may be included in a DAPO and the sheriff may impose any prohibition or requirement that they consider necessary for the purpose of protecting person B from abusive behaviour by person A.
72.Section 9(3) provides that the sheriff can only include a prohibition or requirement in a DAPO if they consider it is necessary for the purpose of protecting person B from abusive behaviour by person A.
73.Section 9(4) provides that a sheriff can make provision in a DAPO which has effect outside the sheriff’s sheriffdom so, for example, a prohibition on person A contacting or approaching person B could apply anywhere in Scotland, even if that is outside the sheriff’s sheriffdom.
74.Section 9(5) provides for the period of time for which a DAPO has effect. Section 9(5)(a) provides that a DAPO has effect for such a period as is specified in the order, and that this period must not exceed two months. It should be noted that the duration of an interim order does not count towards the maximum duration of a DAPO. Section 9(5)(b) provides that an order may specify different periods for which different requirements or prohibitions may have effect. This provides flexibility to address any anticipated changes to person A or person B’s circumstances which the sheriff is aware of at the time that they make the DAPO. By way of example, a sheriff may consider it necessary to prohibit person A from coming within a specified distance of person B’s place of work or study but if it is known that person B will not be attending this place of work or study for the full duration of the order then it would not be necessary for such a prohibition to have effect for the full duration of the order.
Section 10 – Interim domestic abuse protection order
75.Section 10 makes provision for a sheriff to make an interim DAPO where an application for a DAPO has been made under section 8(1). An interim DAPO may be made regardless of whether a DAPN has been given.
76.Section 10(2) provides that a sheriff may make an interim DAPO if the sheriff considers that, on the balance of convenience, it is just to do so. In deciding where the balance of convenience lies, the sheriff will balance the competing interests of those affected with a view to reaching a decision which causes the least harm to the persons affected in the interim period.
77.Section 10(3) provides that, in deciding whether to make an interim DAPO, the sheriff must have regard to all the circumstances, including any risk that person A will cause harm to person B if an interim order is not made pending determination of the application for a full order.
78.Section 10(4) provides that an interim DAPO can include any prohibition or requirement that could be included in a DAPO.
79.Section 10(5) provides that the sheriff may make an interim order notwithstanding that person A or person B have not been given notice of proceedings as is required by section 11(5) (which applies when a DAPN has been given) or by rules of court, or been given an opportunity to make representations about the interim order. Read with section 8(6), the effect of this is that, where person A or person B have not been given an opportunity to make representations, the sheriff may make an interim DAPO to protect person B but not a final order. Section 10(5) also makes clear that, as is the case with the making of a full DAPO (see section 8(2)(b)), the consent of person B is not required for an interim DAPO to be made.
80.Section 10(6) provides that where a sheriff makes an interim order in the circumstances described in section 10(5)(a) or (b), they must hold a hearing in relation to the application for a DAPO as soon as is reasonably practicable.
81.Section 10(7) provides for the period of time for which an interim DAPO has effect. Section 10(7)(a) provides that an interim DAPO has effect for such a period as is specified in the order, and that this period must not exceed 3 weeks. It is implicit in the wording of section 9(5)(a) that the duration of an interim order does not count towards the maximum duration of a DAPO as the reference to a DAPO in section 9(5) does not include a reference to an interim DAPO and section 9(5)(a) does not require the court to take account of the time for which any interim DAPO may have been in effect in determining how long a DAPO may have effect for. Section 10(7)(b) provides that an interim order ceases to have effect, if it has not already done so, when the application for a DAPO under section 8(1) has been determined.
Section 11 – Hearing to be held where domestic abuse protection notice has been given
82.Section 11 makes provision with regard to the hearing which must take place where the chief constable applies to the sheriff for a DAPO under section 8(1)(a) after a senior constable has made a DAPN against person A.
83.Section 11(2) provides that, where the police make a DAPN, they must make an application under section 8(1)(a) to a sheriff for a DAPO not later than the first court day after the day on which the DAPN is given to person A as set out in section 6(4). “Court day” is defined at section 21. It is any day which is not a Saturday or Sunday or a court holiday.
84.Section 11(3) requires the sheriff to hold a hearing in relation to the application no later than the first court day after the day on which the application is made and section 11(4) requires that the hearing must be concluded on the day on which it begins. The sheriff is still entitled to continue proceedings on the application as set out at section 11(7) but, when considered alongside section 11(9)(b), section 11(4) provides a clear point at which a DAPN will cease to have effect.
85.Section 11(5)(a) places a duty on the chief constable to give person A notice of the hearing either by (i) leaving it at the address which person A has provided to the police whether given in accordance with section 5(3) or 6(5) or otherwise in connection with the giving of notice under this subsection or (ii) giving it to person A on person A attending a police station in accordance with section 5(3) or otherwise by delivering it to person A in person. Section 11(5)(b) places a duty on the chief constable to give person B notice of the hearing by leaving it the address at which person B usually resides, or by delivering it to person B in person.
86.Section 11(6) provides that the sheriff must hold the hearing even if the requirement at section 11(5) is not met. In such a case, the sheriff could make an interim order by virtue of section 10(5), but could only make a full order if the requirement for persons A and B to be given an opportunity to make representations at section 8(6) is met, for example, where they have made representations after having been notified of the hearing otherwise than in accordance with section 11(5).
87.Section 11(7) sets out the options available to the sheriff at that hearing. The sheriff can determine the application, providing the requirement to give an opportunity to person A, person B and the chief constable to make representations has been met, can make an interim DAPO or can continue proceedings, setting a date for a further hearing, without determining the application or making an interim DAPO.
88.Section 11(8) provides that the sheriff may not make an interim DAPO or a DAPO before the hearing is held.
89.Section 11(9) provides that a DAPN ceases to have effect if the sheriff makes a DAPO or interim DAPO at the hearing or otherwise, when the hearing ends. Because the hearing must come to an end on the day it begins and by virtue of section 11(2) and (3), the DAPN will cease to have effect no later than the second court day after the day on which it is given to person A.
Section 12 – Extension, variation or discharge of order
90.Section 12 makes provision to enable an application to be made to extend, vary or discharge a DAPO. By virtue of section 10(8) references in section 12 (and sections 13 and 14) also include reference to an interim DAPO.
91.Section 12(1) provides that the chief constable, person A and person B may apply to the sheriff to extend, vary or discharge a DAPO or interim DAPO. The effect of this is that person B may apply to extend, vary or discharge the order even where person B was not a party to the proceedings for the order under section 8.
92.Section 12(2) provides that the sheriff may permit any person referred to in section 12(1) to become party to proceedings relating to an application made by another person mentioned in that section. In practice, this enables the sheriff to permit person B to become party to proceedings in relation to an application made by either person A or the chief constable and to permit the chief constable to become party to proceedings in relation to an application made by person A or person B – person A will anyway be a party to proceedings in all cases by virtue of the fact that they are the subject of the order.
93.Section 12(3) provides that, before determining an application to extend, vary or discharge a DAPO or interim DAPO, the sheriff must give an opportunity to make representations on the application to the chief constable, person A and person B (whether or not the chief constable or person B is a party to proceedings).
94.Section 12(4)(a)(i) provides that in determining an application under section 12(1), the sheriff must take account of any views of which the sheriff is aware as to whether person B wishes the DAPO or interim DAPO to be extended, varied or discharged. In certain cases (those listed in section 12(5)), section 12(4)(a)(ii) also requires the sheriff to take into account any reasons of which the sheriff is aware for person B’s views on whether the DAPO or interim DAPO should or should not be extended, varied or discharged. The cases listed in section 12(5) are the cases most susceptible to person B’s expressed wishes having been influenced by coercive or controlling behaviour by person A (specifically cases where person B wishes for the order not to be extended, not to be varied so as to add a requirement or prohibition as proposed in the application, to be varied so as to remove a requirement or prohibition as proposed in the application, or to be discharged). This means that, for example, where the sheriff is aware that person B’s views may indeed have been influenced by coercive and controlling behaviour by person A then the sheriff must take that into account, along with person B’s views, in determining the application.
95.Section 12(4)(b) requires the sheriff take into account any other views of person B in relation to the application for extension, variation or discharge of which the sheriff is aware.
96.Section 12(4)(a) and (b) both apply 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 (for example, as a result of representations by the chief constable).
97.Section 12(6) provides that, in determining an application to extend, vary or discharge a DAPO or interim DAPO, the sheriff must also take into account any representations made to them by the chief constable or by person A and the welfare of any child whose interests the sheriff considers to be relevant to the application.
98.As with the equivalent provision in section 8, section 12(6)(b) applies in all cases where there is a child whose interests the sheriff considers relevant to the application, with section 12(7) and (8) then imposing additional duties that only apply where the sheriff is considering an action in relation to an order which would relate directly to a child (see paragraph 67). Specifically, section 12(7) when read together with section 12(8) places a duty on the sheriff to take such steps as are reasonable in the circumstances to give a child an opportunity to express views where the sheriff is considering extending or discharging a DAPO or interim DAPO which contains provision relating directly to the child, or where the sheriff is considering varying a DAPO or interim DAPO by including, removing or altering provision that relates directly to the child. The sheriff is then required to take into account any views of the child of which the sheriff is aware, whether as a result of the steps taken to give an opportunity to express their views or otherwise.
99.Section 12(9) provides that in taking account of any such views of the child, the sheriff must take into account the child’s age and understanding.
100.Section 12(10) provides that any reference to extending a DAPO or interim DAPO in sections 12, 13 and 14 includes a reference to extending the period for which a particular provision of the order has effect. For example, if some provisions in a DAPO as originally made have effect for a period of two months and others for a shorter period, an application could be made under section 12(1) for the provisions which were originally to have effect for less than two months to be extended so that they also have effect for two months.
Section 13 – Extension, variation or discharge of order: further provision
101.Section 13 makes provision regarding the sheriff’s powers to extend, vary or discharge a DAPO or interim DAPO following the making of an application under section 12(1).
102.Section 13(1) provides that when a sheriff is considering an application to extend a DAPO or interim DAPO, they may extend the order only if it is necessary to do so and must vary the order to remove any requirement or prohibition that is no longer necessary, and must discharge the order if satisfied that it is no longer necessary. Section 13(7) provides a definition of “necessary.”
103.Sections 13(2) and 13(3) make provision regarding the length of time for which a DAPO or interim DAPO can be extended. They provide that a DAPO can be extended for a period not exceeding one month (though this does not apply to an interim DAPO) and that the maximum period for which the order may have effect, including any period for which it is extended, is 3 months for a DAPO, and 3 weeks for an interim DAPO.
104.Section 13(4) provides that where an application is made under section 12(1) to vary the terms of a DAPO or interim DAPO, the sheriff may vary the order so as to add a prohibition or requirement if satisfied that it is necessary to do so (“necessary” is defined at section 13(7)) and must vary the order to remove any requirement or prohibition which the sheriff is satisfied is no longer necessary and must discharge the order if satisfied that it is no longer necessary.
105.Section 13(5) provides that where an application is made under section 12(1) to discharge a DAPO or interim DAPO, the sheriff must discharge the order if satisfied that it is no longer necessary, and, if the sheriff does not discharge the order they must vary the order so as to remove any requirement or prohibition which the sheriff is satisfied is no longer necessary.
106.Section 13(6) provides that the sheriff may extend, vary or discharge a DAPO or interim DAPO without person B’s consent, though there is a requirement at section 12(4) for the sheriff to take into account the views of person B (including, in certain cases, any reasons for those views of which the sheriff is aware) (see paragraph 94 above).
107.Section 13(7) provides that, for the purpose of section 13, “necessary” means necessary for the purpose of protecting person B from abuse by person A.
Section 14 – Interim extension or variation of order
108.Section 14 makes provision enabling a sheriff to extend or vary a DAPO or interim DAPO on an interim basis, pending determination of the application, when considering an application to extend or vary a DAPO or interim DAPO made under section 12(1).
109.Section 14(2) provides that the sheriff may vary or extend the order on an interim basis only if they consider, on the balance of convenience that it is just to do so.
110.Section 14(3) provides that, 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 the order is not extended or varied on an interim basis, person A will cause harm to person B or, in the case of an application to vary an order, that if the order is varied on an interim basis, person A will cause harm to person B before the application is determined. This may be especially relevant in a case where person A applies to the court to vary the order by removing a prohibition or requirement.
111.Section 14(4) provides that the sheriff may extend or vary the DAPO or interim DAPO on an interim basis even if the chief constable, person A or person B has not been given notice of the proceedings, and without giving the chief constable, person A, or person B the opportunity to make representations about the interim extension or variation of the order. Section 14(5) provides that where the sheriff does so, they must hold a hearing in relation to the application under section 12(1) as soon as reasonably practicable. Section 14(4)(c) provides that the consent of person B is not required in order for a DAPO or interim DAPO to be extended or varied on an interim basis.
112.Section 14(6) provides that the extension or variation of a DAPO or interim DAPO on an interim basis has effect for such a period as is specified by the sheriff, subject to the limits on the extension of a DAPO or interim DAPO set out at section 13(3) and that it ceases to have effect, if it has not already done so, when the application under section 12(1) has been determined.
Section 15 – Jurisdiction and competence
113.Section 15 makes provision as regards the sheriff to whom an application for a DAPO under section 8(1) or an application to vary, extend or discharge a DAPO under section 12(1) should be made.
114.Section 15(2)(a) provides that an application for a DAPO may be made to a sheriff in whose sheriffdom either person A or person B is ordinarily resident. Section 15(2)(b) provides that an application to extend, vary or discharge a DAPO may be made to a sheriff of the same sheriffdom as the sheriff who considered the application for a DAPO which resulted (whether or not after appeal) in the making of the DAPO or interim DAPO to which the application under section 12(1) relates. This ensures that all applications for extension, variation or discharge, including applications in cases where the order was made in the course of appeal proceedings, should be made to a sheriff in the same sheriffdom where the original application for a DAPO was considered.
115.Sections 15(3) to 15(6) make provision to enable a sheriff to make an order to transfer proceedings to a sheriff of another sheriffdom.
116.Section 15(4) provides that the sheriff may do so if they are satisfied that it would be more appropriate for the proceedings to be dealt with by a sheriff of another sheriffdom.
117.Section 15(5) provides that the sheriff may make an order under section 15(4) on the application of a party to proceedings, or on the sheriff’s own initiative.
118.Section 15(6) provides that where an order is made under section 15(4), a sheriff of the sheriffdom to which the proceedings are to be transferred has jurisdiction and competence to consider and determine the proceedings.
119.Section 15(7) provides that nothing in section 15 affects any power that a sheriff has to decline jurisdiction in any case.
120.Section 15(8) amends schedule 1 of the Courts Reform (Scotland) Act 2014 so as to provide that a summary sheriff has competence with respect to proceedings relating to a DAPO or an interim DAPO.
Section 16 – Effect of making of appeal on decision appealed against
121.Section 16 concerns appeals against decisions made in DAPO proceedings.
122.Section 16(1) and (2) make clear that, for the purposes of section 110 of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”), decisions to make or refuse to make a DAPO and decisions to extend, vary or discharge, or refuse to extend, vary or discharge a DAPO are decisions constituting final judgments in civil proceedings. This means that these decisions are appealable under section 110(1) of the 2014 Act and that an appeal may be taken without the need for permission. Appeals against other decisions (for example, an appeal against a decision to make or refuse to make an interim DAPO), while possible, will require the permission of a sheriff (section 110(2) of the 2014 Act).
123.Subsections (3) to (5) provide that, in all appeals relating to DAPOs and interim DAPOs under section 110 of the 2014 Act, the original decision appealed against continues in effect until the determination of the appeal unless the decision is suspended by the Sheriff Appeal Court. In the case of an appeal which is remitted to the Court of Session under section 112 of the 2014 Act, the power to suspend the original decision may be exercised by either the Sheriff Appeal Court or the Court of Session.
124.Subsections (6) and (7) set out a similar position in relation to appeals to the Court of Session made under section 113 of the 2014 Act against a decision of the Sheriff Appeal Court in an appeal under section 110 of the 2014 Act. Again, all appeals relating to DAPOs and interim DAPOS are covered. The decision appealed against continues in effect until the appeal is disposed of, unless suspended by the Sheriff Appeal Court, or the Court of Session. Subsection (8) provides that, where the decision appealed against under section 113 is a decision to remit the case back to the sheriff, the sheriff may not take any further action in the case until the appeal is disposed of. This avoids the possibility of proceedings with potentially different outcomes taking place simultaneously.
Section 17 – Offence of breaching order
125.Section 17 makes provision relating to breach of a DAPO or an interim DAPO.
126.Section 17(1) provides that breach of a DAPO or an interim DAPO, without reasonable excuse, is a criminal offence. Section 17(2) provides that the maximum penalty on summary conviction is a term of imprisonment of up to 12 months or a fine not exceeding the statutory maximum or both; and the maximum penalty on conviction on indictment is a term of imprisonment of up to five years or a fine or both.
Section 18 – Applications under sections 8(1) and 12(1): power to specify additional applicants
127.Section 18 provides power for the Scottish Ministers to make regulations specifying additional persons who can apply to a court for a DAPO under section 8(1)(b), or to extend, vary or discharge a DAPO under section 12(1). The power is subject to affirmative procedure. Persons specified in regulations under section 18 cannot apply for a DAPO in a case where a DAPN has been given – such applications must be made by the chief constable (section 8(1)(a)).
128.Section 18(2) provides that the persons whom the Scottish Ministers can empower to make an application under sections 8(1) and 12(1) include local authorities, local authority landlords, registered social landlords and any other person whom the Scottish Ministers consider it appropriate to provide with such a power. “Person” has the meaning given in schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010.
129.Section 18(3)(a) places a duty on the Scottish Ministers to consult with each person to whom it is proposed to provide a power to apply for DAPOs or to apply to extend, vary or discharge DAPOs. This is qualified in section 18(3)(a)(ii) so that where it is proposed to enable a particular type of persons, the Scottish Ministers may instead consult such persons as appear to the Scottish Ministers to represent that type of person. So, for example, they may consult with the Convention of Scottish Local Authorities instead of consulting with individual local authorities, or with a body representing registered social landlords, such as the Scottish Federation of Housing Associations, instead of consulting with each individual registered social landlord. The Scottish Ministers may also consult any other persons they consider appropriate.
130.Section 18(4) provides that regulations made under this section may modify any enactment (including this Act), may make incidental, supplementary, consequential, transitional, transitory or saving provision and may make different provision for different purposes.
