The various Acts recently passed by the Scottish Parliament to strengthen protection against abusive domestic relationships, do not display a consistent approach to the scope of protection
An active Parliament
The Scottish Parliament has been noticeably active recently in passing legislation dealing with the problems created when families go off the rails. The first piece of legislation to receive Royal Assent in 2011 was the Children’s Hearings (Scotland) Act 2011; some aspects of this are discussed below. In addition, there are two other Acts passed in 2011 worthy of our attention.
The Domestic Abuse (Scotland) Act 2011 tackles one of family life’s most insidious problems, which can range in seriousness from minor assaults with little lasting impact to murder. Invariably, all family members and not just the primary victim are affected by violence within the family. It is all too often a learnt behaviour that easily transmits down the generations, with boys learning that violence is a means of achieving their wishes, and girls learning that victimhood is part of a woman’s lot. The extent of female abuse of men, and of abuse within same-sex relationships, remains difficult to assess accurately, but reporting incidence is clearly rising and as a problem it is as damaging to the families involved as male abuse of women.
It has long been recognised that the criminal law is an insufficient weapon in the fight against domestic abuse, not least because it is necessarily reactive rather than protective. The civil law attempts to provide some prospective protection, but there are well-recognised limitations to its effectiveness. Matrimonial and domestic interdicts provide some protection, but only if the case comes within the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the Civil Partnership Act 2004, or the Family Law (Scotland) Act 2006. Interdicts have long been available at common law and, since the Protection from Abuse (Scotland) Act 2001, powers of arrest may be attached to them. In addition, non-harassment orders are available under the Protection from Harassment Act 1997 and can (at present) be taken out against anyone who pursues a course of conduct that amounts to harassment as defined in the Act.
The Domestic Abuse (Scotland) Act 2011 aims to improve the position in two main ways. First, it amends the 1997 Act by removing the requirement that there be a course of conduct before a non-harassment order may be obtained. This extends quite significantly the protections available under the Act, for the victim no longer needs to wait to be harassed a series of times before seeking protection. Secondly, the 2011 Act makes it a criminal offence to breach an interdict with a power of arrest.
Both these provisions apply not in every case, but only in cases involving “domestic abuse”, and the most interesting feature of the Act is the definition it gives of “domestic abuse”. By s 3(2), a domestic abuse interdict is one granted for the protection of the applicant against his or her spouse or civil partner, cohabitant or person with whom he or she is in an “intimate personal relationship”.
This is significantly narrower than the definition of “domestic abuse” proposed in the original bill that became the Act, for there domestic abuse meant any abuse by a “partner in an established relationship of any length”. This definition led to much debate as the bill was progressing through its parliamentary stages, and while the original version was probably unduly wide, the limited version that was eventually enacted does not capture all forms of behaviour that might otherwise be commonly understood to amount to “domestic abuse”.
In particular, it is limited to partner abuse (or ex-partner abuse), and so excludes all intergenerational abuse or abuse between family members who are not partners. A man who beats up his daughter, or stepson, or niece, or father, has not been involved in “domestic abuse” for the purposes of the Domestic Abuse (Scotland) Act 2011. This in my view is unfortunate. Not only ought the same legal responses to be available to a victim who is assaulted by his father as by his wife, but it leads to a dissonance (as we will see) between the definition of “domestic abuse” under this legislation and that under other legislation.
A quite different problem in family life, but which is as destructive of the trust and security amongst family members as family violence, is the issue of forced marriages. It happens with distressing frequency that young people, especially young women, have their lives arranged for them by their parents, including the choice of their prospective spouse.
It may be accepted that some parents who force their own children into marriages not of the child’s choosing are acting in what they genuinely believe to be their child’s best interests, but far more often the parental motivation is their own misplaced pride and notions of “honour”: it is an act of fundamental selfishness, and of violence. In any case, the practice is entirely unacceptable in the modern world, because it deprives young and vulnerable individuals of one of the most essential aspects of a free and fulfilled life: the personal choice of an intimate partner with whom one’s life is to be led.
Of course, whenever a person has been forced against his or her true will to give alleged consent to marriage, that marriage is void (Marriage (Scotland) Act 1977, s 20A), and the remedy is for the person to seek a declarator of nullity of marriage. But, like the criminal law in domestic abuse cases, this is a retrospective remedy that is not able (except in a very weak deterrent sense) to provide protection from the harm in the first place. The Scottish Parliament has now attempted to ameliorate this situation by providing a protective remedy in the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011.
The main purpose of this Act is to create a new order, the forced marriage protection order (FMPO), which may be sought and obtained from the Court of Session or the sheriff court by any person who fears being forced into a marriage against their will. “Force” in this context is wider than the use of coercion, and includes knowingly taking advantage of a person’s incapacity to consent or to understand the nature of marriage (s 1(6)). Breach of the order will amount to a criminal offence. A FMPO may be sought by the individual concerned, or by the local authority, or the Lord Advocate (s 3); in addition the court may make the order on its own initiative in civil proceedings in which the person to be protected is a party (s 4(1)), and in criminal proceedings may refer the matter to the Lord Advocate to consider whether to apply for an order (s 4(2) and (3)). The order may contain such prohibitions, restrictions or requirements as the court thinks appropriate to prevent the marriage from occurring or to protect the person in a forced marriage (s 2(1)).
Forcing your child into a gay or lesbian relationship
An interesting feature of the Act is that it does not cover forced civil partnerships, though the Scottish ministers may by order apply the provisions relating to FMPOs to civil partnerships also. Clearly, the social circumstances that lead to parents forcing their own children into marriages against their will are highly unlikely to be replicated in relation to civil partnerships, but Scottish ministers may be expected to act in the unlikely event of the issue becoming problematical.
Violence, marriage and children’s hearings
The Children’s Hearing (Scotland) Act 2011 addresses, in its own way, both of the problems discussed above. Domestic abuse and forced marriage become for the first time grounds upon which a child can be referred to a children’s hearing. But this Act, passed some months before the other two, is not neatly tied in with the other legislation, leaving the law distinctly disjointed.
In particular, the limited definition of “domestic abuse” in the Domestic Abuse (Scotland) Act 2011, discussed above, is unlikely to be considered appropriate for the new ground of referral. The purpose of referring a child to a children’s hearing is to ensure his or her protection from harm, and there can be no doubt that a child will be as harmed by witnessing his or her sibling being beaten by a parent as by witnessing a parent beating the other parent. This suggests that a much broader interpretation of “domestic abuse” will be appropriate under the Children’s Hearings (Scotland) Act than it is given under the Domestic Abuse (Scotland) Act.
And though the forced marriage legislation does not yet extend to civil partnership, the Children’s Hearings (Scotland) Act has included being forced into a civil partnership as a ground upon which a child may be referred to a children’s hearing. One would not expect to see many children referred to a hearing due to the risk of being forced into a civil partnership, but in any case it would have been tidier for both Acts to deal with the issue in the same way.
Kenneth McK Norrie is a Professor of Law at the University of Strathclyde