Meeting of the Parliament 01 February 2018
People who are seeing the physical devastation of domestic abuse for the first time always ask, “Why on earth does the victim stay? Why did they not leave—and leave immediately? Why did they go back?” What the person does not see is the years of psychological abuse that the victim has faced before the physical abuse began. They do not see someone who is so undermined that they blame themselves. They do not see someone who has nowhere to run, because the abuser has alienated their friends and family.
The bill tries to deal with such psychological manipulation, which is often the precursor to physical abuse and is just as devastating. The behaviour is often so subtle, initially, that the victim is unaware of what is happening to them, so it is for friends and family to spot it.
Concern was expressed that the threshold for criminality might be too low, but given the underhand nature of the crime, which is often hidden, harmful behaviour would not be captured and victims would not be protected if the threshold were higher.
For the offence to lead to a conviction, conditions will need to be met to ensure that a falling out or disagreement will not be captured. The conditions are as follows: the accused’s course of behaviour was abusive of their partner or ex-partner; a reasonable person would deem that such behaviour was likely to cause physical or psychological harm; and the accused intended to cause harm or was reckless about whether their behaviour would do so.
The bill will offer further protection, but there remain areas that need to be tackled. The bill considers the impact of domestic abuse on children, but it does not go far enough, although it was strengthened today by amendments in the name of my colleague Claire Baker.
Far too often in my casework, I see cases in which custody and access to children are used to continue to perpetrate abuse. Abusers use contact to trace the family and find out where they are living, so that they can continue the abuse. They use contact to monitor where a victim is, and they control their victim’s behaviour by changing pick-up and return times. The abuse continues and, worse, the child is used as a weapon.
The courts have forced mothers to hand over their children to an abusive ex-partner whom they know will harm the children—and if the mother does not hand over the children, she faces arrest. That is a horrendous and unacceptable situation to put someone in, and all too often we read that it has tragic consequences.
Although the bill now recognises the damage that is done to children by domestic abuse, we need to go much further to protect children. An abusive parent or step-parent should not have access to a child, under any circumstances. Unless they have been able to prove in a court of law that they have addressed their behaviour, their child must be protected from them. We need mechanisms to put such an approach into operation, but the rule of thumb must be that there is no contact, because of the damage that it causes to the child.
In a meeting with Mary Fee, the minister suggested that the Government will look at the issue as part of the reform of family law. However, the matter needs to be addressed urgently, because lives are being damaged and lost while the current situation continues.
The bill does nothing to ensure that all victims have access to a domestic abuse court. Given the concern that has been expressed about prosecution under the bill, such access is essential. If specialists do not preside over the legislation, we will have a two-tier system in which victims who have access to a specialist domestic abuse court get protection while those who do not have access do not get protection.
Domestic abuse courts are used to implementing special measures in court, when victims ask for things to be put in place to make giving evidence easier and less traumatic for them. A victim can ask for special measures in any court, but it is commonplace for victims to turn up at an ordinary court and discover that the measures have not been put in place. If all victims had access to specialist domestic abuse courts, there would be standard provision, rather than a postcode lottery.
We need specially trained professionals to deal with the legislation. The police need to be trained to investigate and recognise the offence, and throughout the whole prosecution system we need people who are appropriately trained. If people are not trained, the bill will not offer the protection that it should offer. That is why specialist domestic abuse courts are so important: they cater for the needs of victims, and the professionals have a deep understanding of the offence of domestic abuse.
Emergency barring orders were dropped from the bill because the Scottish Government said that it was going to consult on them as part of the review of the Children (Scotland) Act 1995. However, EBOs would be required even if there were no children in the home. A victim should never have to leave their home, especially not in haste and in fear of their safety. The trauma that that causes is unacceptable. Measures need to be in place that immediately remove the perpetrator and make the house safe for the victim and their family to remain. An abuser is not law abiding, so simply being told to leave is unlikely to address their behaviour.
We also need to ensure that where exclusion orders of any kind come to an end, the victim is informed in enough time for them to take action to protect themselves. Too often, we hear of abusers being given non-custodial sentences with no restrictions, which means that restrictions put in place while on bail fall immediately, leaving the victim unprotected.
We in the Scottish Labour Party support the bill. Anything that provides better protection against domestic abuse is to be welcomed.