DV ‘Go’ orders (where suspicion rules)
At present this scheme is not intended to apply to Scotland. In this jurisdiction, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 introduced protective measures in the form of exclusion orders whereby a spouse (or cohabitant) can be excluded from the family home and also interdicted from approaching the applicant spouse. The court will grant such an order, "where it appears to the court that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child". Such orders can be obtained on an interim (emergency) basis, provided the alleged abuser has been afforded an opportunity of being heard by the court. The Scottish Parliament recognised that there was a need for further protective measures. The Protection from Abuse (Scotland) Act 2001 allows a power of arrest to be attached to an interdict. The police may arrest the interdicted person without warrant if they have reasonable cause for suspecting that person of being in breach of the interdict and consider that there would, if that person were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict. In such cases, the complainer has already obtained an interdict from the court. They have satisfied the court that the power of arrest is necessary. Further, the court will only grant a power of arrest if satisfied that the interdicted person has been given the opportunity to be heard by, or represented before, the court. The Scottish position maintains appropriate checks and balances as between the complainer and the complained against party. The police can also revert to the basic breach of the peace law and encourage a troublesome individual to remove from the home for a short period, or impose bail conditions requiring them to do so.
Depriving an individual of the right to occupy their own home is a significant step and the law in Scotland respects that by providing a procedural and evidential framework. Achieving that outcome based on suspicion alone sets a potentially dangerous precedent which impacts on the rights of all individuals. In the meantime, we await with interest assessments of the scheme from south of the border.
Louise
Laing is a Solicitor with the Family
Law Team of Morton Fraser, Solictors,
London and Edinburgh
http://www.morton-fraser.com/publications/articles/1267
Posted: Wednesday 8 December 2010
