As October is Domestic Abuse Awareness Month, our Senior Associate, Tom Main, discusses some of the key civil protective measures that can be sought through the Scottish Courts.
Interdict
An interdict (the Scottish equivalent of the more widely used terms, “injunction” and “restraining order”) is a court order designed to prevent specific unlawful behaviour. Interdicts can be granted on a temporary basis, known as interim interdicts, where there is an immediate risk of an individual committing an alleged wrong. These can be granted by the court on an interim basis prior to the person who is being interdicted being made aware of the application. However, it will only come into effect once a copy of the order granting the interim interdict is served on the person being interdicted. The test for the court to consider is two-fold. The first part requires a legal foundation to the case and a probable chance of success (prima facie case). If the first part is established, the court then considers whether, based on the balance of convenience, the interim interdict should be granted.
As family lawyers, we are often instructed to apply for interdicts to prevent removal of a child, for example, from the care of one parent or any party entrusted with the care of the child, or from the jurisdiction of the court. Interdicts are also commonly applied for to prevent a person from verbally threatening, abusing, or putting another person into a state of fear and alarm.
If the interdicted person is proved to have breached the interdict, the matter can be taken back to court by the applicant, and the interdicted person may be found to be in contempt of court and subject to a fine or, in more serious cases, a term of imprisonment. If the alleged conduct takes place between parties in an intimate personal relationship, it is possible to ask the court to determine that the interdict should be categorised as a “Domestic Abuse Interdict.” If granted, any subsequent breach of the interdict carries greater penalties and will result in criminal proceedings being brought against the interdicted person.
Power of Arrest
If an interdict has been granted by the court, the applicant can ask that a Power of Arrest be attached to the interdict. The test for this is stricter, as the applicant must show that a power of arrest is necessary for protection from risk of abuse in breach of the interdict. Unlike an interim interdict, a power of arrest cannot be granted by the court until the person against whom the interdict is sought has had the opportunity to be heard or represented. If successful, the power of arrest is granted for no more than three years. If the interdicted person breaches the interdict, the police have the authority to arrest them, and criminal proceedings can be brought against them.
Non-Harassment Order (NHO)
It is also possible to apply for a Non-Harassment Order (“NHO”) to protect an individual from a course of conduct that causes them fear, alarm, or distress. The key difference between an interdict and an NHO is that an NHO cannot be granted based on one single act (unless it involves domestic abuse); rather, there must be a series of incidents or acts. Additionally, an NHO cannot be granted on an interim basis and will be granted for a specified period. Breaching an NHO is a criminal offence, and unlike an interdict, enforcement does not rely on the applicant taking steps, but rather on the police and procurator fiscal.
Exclusion Order
An interdict can also be sought to prevent a spouse or cohabitant from entering the matrimonial home. If necessary, this can be accompanied by an exclusion order and other orders, such as an order to eject a spouse or cohabitant from the property. Your lawyer can advise whether you have occupancy rights in respect of a property. An exclusion order will remove the occupancy rights of the spouse or cohabitant if it is deemed necessary by the court for the protection of the applicant or any child of the family. The court must also be persuaded that an interdict alone would be insufficient or inappropriate. The court will require information on the harm caused or which may reasonably be caused by the conduct of a party. Notably, this harm does not need to be physical and can include harm to the mental health of the other party or a child. Where a matrimonial interdict is granted alongside an exclusion order, a power of arrest must be attached to the interdict.
It is important to note that this is a summary and not exhaustive. Comprehensive legal advice from a specialist family lawyer is essential in these matters.
If you need further advice on any of the civil protective measures discussed, please don’t hesitate to contact our Family Law team for expert guidance.
