The Act
Part 1 – Domestic abuse protection notices and orders
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.
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