Domestic Abuse (Protection) (Scotland) Act 2021

8 Making of domestic abuse protection order

(1) The chief constable—

(a) must apply to the sheriff for a domestic abuse protection order in relation to a person to whom a domestic abuse protection notice is given,

(b) may apply to the sheriff for a domestic abuse protection order in relation to a person in any other case.

(2) The sheriff may make the order—

(a) only if the sheriff is satisfied that—

(i) person A has engaged in behaviour which is abusive of person B,

(ii) there is an immediate or imminent risk of person A engaging in further behaviour which is abusive of person B, and

(iii) it is necessary to make the order for the purpose of protecting person B from abusive behaviour by person A,

(b) without the consent of person B (but see subsection (7)).

(3) It does not matter whether the abusive behaviour referred to in subsection (2)(a)(i) took place in Scotland or elsewhere.

(4) The abusive behaviour referred to in subsection (2)(a)(iii) must include, but need not be limited to, the behaviour referred to in subsection (2)(a)(ii).

(5) The sheriff may permit person B to be a party to the proceedings.

(6) Before determining an application under subsection (1), the sheriff must give an opportunity to the chief constable, person A and person B (whether or not person B is a party to the proceedings) to make representations about the application.

(7) When determining the application, the sheriff must—

(a) take into account—

(i) any views of person B of which the sheriff is aware as to whether or not person B wishes an order to be made, and

(ii) where person B does not wish an order to be made, any reasons for that view of which the sheriff is aware,

(b) take into account any other views of person B in relation to the application of which the sheriff is aware,

(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).

(8) When determining the application, the sheriff must also take into account—

(a) any representations made to the sheriff by the chief constable or person A,

(b) the welfare of any child whose interests the sheriff considers to be relevant to the application.

(9) Subsection (10) applies where, on an application under subsection (1), the sheriff is considering making provision in an order which would relate directly to a child.

(10) The sheriff must—

(a) take such steps as are reasonable in the circumstances to give the child an opportunity to express views in relation to the matter, and

(b) take into account any views of the child of which the sheriff is aware (whether as a result of paragraph (a) or otherwise).

(11) In taking account of views of the child under subsection (10)(b), the sheriff must take into account the child’s age and understanding.