SCOTLAND Trends and Developments Contributed by: Jenny Jarman-Williams, Turcan Connell
ment in how Scottish law recognises and sup - ports non-marital relationships. Civil remedies for domestic abuse There is a focus on the impact of domestic abuse across society and, as part of that, the impact it has on family law cases. There is also current political enthusiasm for tackling it. The Scottish Law Commission is conducting a review of the civil remedies available to victims/survivors of domestic abuse. The current law in this area is spread over several pieces of legislation and multiple different reme - dies are available. Therefore, to achieve the most effective protection in law, a victim of domestic abuse needs to rely on multiple statutes, cumu - latively building up the protective measures in place. The level of protection available also varies depending on the relationship between the victim and the perpetrator. The picture that emerges is of a complex and fragmented legal regime for victims and their advisers to navi - gate. The legislation is complicated, confusing and piecemeal. Further criticisms of the current law include that the terminology is confusing and inconsistent and that the remedies themselves are not working as well as they should. The Scottish Law Commission is floating pos - sible options for reform of occupancy rights. It is seeking views on whether cohabitants should have the same occupancy rights as spouses/ civil partners and on whether the court should be required to consider making an exclusion order suspending a person’s occupancy rights where that person is convicted of a domestic abuse offence. The consultation also focuses heavily on a pro - posal for a new law, and a new suite of rem - edies, to help victims of domestic abuse. They
are seeking views on a new proposed law that will address the complexity of the current regime by introducing a new “purpose-built” scheme (a statutory delict of domestic abuse). It also seeks views on the introduction of a new definition of domestic abuse or abusive behaviour in civil law, based on the equivalent definition of abusive behaviour in the Domestic Abuse (Scotland) Act 2018, with some additional factors: tech abuse, immigration abuse and economic abuse. It is possible they will include a defence of reasona - bleness of the behaviour in the particular circum - stances. The second part of this would be a bespoke set of remedies for victims of abuse, if the delict of domestic abuse is established in court. The rem - edies would be a court order provisionally called a Domestic Abuse Civil Protection and Redress Order (DACPRO). This is an umbrella term cover - ing a range of different orders: • a protection order to prohibit any future abusive conduct (and an extension of that order to protect other named people, such as children of the household); • a redress order to compensate a victim/survi - vor for losses suffered by way of damages; • a civil barring order that would exclude the perpetrator from the home for a fixed period; • an order for the delivery of specified docu - ments; • an order for the delivery of specified property and personal effects; and • an order regulating the care of and responsi - bility for a pet, or for the delivery of a pet and potentially others. They propose that a victim should be able to seek any element of a DACPRO either alone, or in combination with any other element, to suit their individual needs.
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