Proposed further protections for people at risk of domestic abuse have been backed by the Faculty of Advocates.
In a stage 1 submission to the Scottish Parliament's Justice Committee, which is scrutinising the Domestic Abuse (Protection) (Scotland) Bill, Faculty says it agrees with booth the main provisions of the bill.
These introduce a domestic abuse protection order (DAPO), which can be granted by the civil courts on application by the police, and a domestic abuse protection notice (DAPN), which can be imposed by the police before seeking a full order from the court.
Faculty believes that a main advantage of the provisions will be the speed with which protection can be put in place – though it suggests the bill clarify the standard of proof required for the DAPO, to ensure consistency of approach.
Explaining its support for DAPOs, it states: "The possibility of such an order meets the concern that an individual in a situation of coercive control may lack the freedom of action initially to take steps themselves… There is also the advantage that the person at risk need not incur expense to achieve protection in the short term" – though they would be entitled to make representations to the sheriff or otherwise have their views conveyed to the court.
However it argues against a provision empowering the sheriff to allow the person at risk ("person B") to be a party to the proceedings.
"The power to apply for an order ought to reside only in the police. The purpose of the legislation is to provide protection to person B while they are unable, for whatever reason, to pursue other available remedies.
"If they are in a position to become a party to proceedings, it would seem likely that they would be in a position to initiate the appropriate civil proceedings themselves. Where the objective of the DAPO is to 'fill a gap' in the provision of protection on a short-term basis, allowing person B to become a party to the proceedings risks the process becoming overly cumbersome and being seen by person B as a substitute for more appropriate long term remedies.
"It is our view that the right to make representations or to have their views conveyed is sufficient to ensure that the sheriff is able to take proper account of person B’s situation and their wishes in determining the necessity of an order."
Another point where Faculty believes clarification is needed is which order should take precedence where an order under the bill conflicts with an order relating to children imposed under family law.