The Act
3.The Domestic Abuse (Protection) (Scotland) Act 2021 (“the Act”) provides the courts with a new power to impose protective orders (“domestic abuse protection orders” or “DAPOs”) which can impose requirements and prohibitions on a suspected perpetrator of domestic abuse (“person A”), including removing them from the home of a person at risk (“person B”) and prohibiting them from contacting or otherwise abusing person B while the order is in effect. The Act provides a power for the police to impose a very short-term notice (a “domestic abuse protection notice” or “DAPN”) ahead of applying to the court for a DAPO in circumstances where such a notice is necessary for protecting person B from abusive behaviour by person A before an interim or full DAPO can be made. The Act requires the police to apply to a court for a DAPO no later than the next court day after giving a DAPN.
4.The orders are intended to fill the gap that exists in that where someone is experiencing domestic abuse, they are likely to lack the freedom of action to pursue other longer term remedies to address their situation such as seeking a civil order through the courts themselves, and the police and criminal courts would only have powers to impose restrictions where the alleged perpetrator has been arrested on suspicion of having committed a criminal offence or convicted of a criminal offence. The DAPNs and DAPOs can provide the person at risk with immediate protection which does not require any action to be taken by the person at risk and which is independent of any criminal investigation.
5.The police notices and court-issued orders are intended to provide another means by which action can be taken to protect someone who is at risk of abuse from their partner or ex-partner. The intention is that during the time in which the police notices and court-imposed protection orders are in place, the person at risk would be protected from harm and would have time and space to consider their long-term housing options and take steps to secure their safety. Depending on the circumstances, this could involve moving home, pursuit of an exclusion order, non-harassment order or interdict or steps to remove a person from shared tenancy. The Act also creates a new ground on which a social landlord can apply to the court for recovery of possession of a house from a perpetrator of domestic abuse and transfer it to the victim or, where the perpetrator and victim are joint tenants, to end the perpetrator’s interest in the tenancy and enable the victim to remain in the family home as sole tenant.