Hansard

Members have already been briefed on the technical aspects of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and its impact on abused women. The briefing notes the women who are not included in the scope of the 1981 act. The act was introduced in 1982—almost two decades ago, and in those two decades women have been killed by their abusers. The briefing gives details of women who have been killed in Scotland in the past 12 months. The 1981 act was heralded as a major step in providing protection from abuse, but the statistic that, every week, two women in the UK die at the hands of their abusers has to be born in mind. We know that one in four women experience abuse at some point in their lives. Now, two decades after the act was introduced, we need to take urgent action to include those who are excluded from the protection of the act. There are categories and classes of women who are not provided with automatic protection under Scots law; that needs to be addressed urgently. I will give a brief outline of which women are not included in the scope of the 1981 act and the technicalities of the act. The act relates the protection it provides to the occupation of the matrimonial home. A person who has the ownership or tenancy of a home possesses occupancy rights in relation to that home and the act attempts to regulate that occupancy. If a woman marries a man, she is not an entitled person in terms of the house — he is the owner or tenant. By virtue of marriage, she automatically acquires a right of occupancy and it is that right of occupancy that gives her a passport to accessing the protections in the act—matrimonial interdicts and the right to exclude her spouse and suspend his occupancy rights if there is abuse. The automatic rights of occupancy and access, and part of the right of protection, disappear after divorce. A matrimonial interdict can have a power of arrest attached to it. That gives the police discretion to arrest the perpetrator of the abuse should he breach the terms of the interdict. At the end of the marriage—through divorce or death—the power of arrest is completely lost, so a spouse loses vital protection. A matrimonial interdict without the power of arrest is not effective. That power is the enforceable and effective part of it.The first group of women we would like to be included in the widened scope of the act are spouses after divorce. We know that the times during separation and following divorce are very dangerous for women. There is a widely held myth that physical or legal separation from the husband or partner offers some protection, but it does not. The risk of female homicides is increased during, and in the aftermath of, separation and divorce.Cohabiting women and women who are joint tenants or owners are in the same position as spouses: they can apply for all the protections under the act and they can get a matrimonial interdict and an exclusion order if they satisfy the tests. The language makes the legislation more complex, but if a woman is a non-entitled cohabiting partner—not a joint tenant or owner—she is, to all intents and purposes, in exactly the same position as a spouse.A woman who has no entitlement and lives with a partner who is either the sole owner or tenant of a property has no occupancy rights. Apart from the common interdict—which is similar to the prevention of a neighbour cutting down a tree and for which anyone can apply—a woman must first go to court in order to get a matrimonial interdict, or any of the protections in the Matrimonial Homes (Family Protection) (Scotland) Act 1981. She must get a declarator of occupancy rights.For women who are not entitled—who are not tenant or owner—that process might take up to 12 weeks. The Family Law Association may say something different, but I can provide references to cases in which that has happened. A woman must wait for 10 to 12 weeks before she has occupancy rights and access to protection. During those three months and pending the action, a woman might choose to stay with the abuser. He will know that the woman is applying for those orders and that she may be trying to have him excluded from his home. The woman will have to put up with whatever reprisals that brings.Her other choice is to leave and to go into refuge—perhaps temporarily—until the orders come through and she is safe. She might go into temporary homeless accommodation provided by the local authority. That might be in a bed and breakfast or something equally inappropriate. The innocent victim of abuse and her children must leave the family home without their possessions and go into alternative accommodation while the perpetrator of the abuse is allowed to stay.If the woman succeeds—and cohabiting women often do not succeed—in accessing the protections under the act, she might be able to return to the home and the abuser will be excluded. She will have an interdict with the power of arrest so that she can remain in the family home with her child with reinforced protection. That is very rare. It is very difficult to exclude men who have sole title to the family home, and in the experience of Scottish Women's Aid it happens relatively infrequently.In addressing that problem, one straightforward suggestion has been to extend occupancy rights to cohabiting women in the same way as a spouse acquires them through marriage. By virtue of the cohabiting relationship, the non-entitled woman—who has no ownership or tenancy rights—can acquire that right of occupation.Often, people find it difficult to accept that the woman would acquire rights on a property that does not belong to her, but we are not talking about her acquiring property rights: we are talking about her acquiring temporary rights to continue to occupy the family home, along with her children.Married and cohabiting women who seek to exclude abusers face stringent tests to persuade the courts to oust a man from what is often perceived as his home. Despite the fact that they may have been systematically abused over a long period and despite the fact that there is good evidence, the tests are incredibly stringent. To exclude a man from his own home it must be necessary for the protection of the woman and/or child, and it must be just and reasonable. There is a long list of matters that the court must consider when coming to a decision about whether it is just or reasonable: the relative conduct of the spouses, whether alternative suitable accommodation is available, and so on.Exclusion orders have not been mentioned by anyone so far, and I note that they were not mentioned in the family law review or the Scottish Law Commission's recommendations. We do not want to end up with the situation that they have in England. There, the scope of matrimonial interdicts—which are called non-molestation orders—has been widened to enable cohabiting women, former spouses, former cohabitees, fiancées, same-sex couples and others, to gain protection against abuse. However, they also have occupation orders—similar to our exclusion orders—that allow only the people with occupancy rights to obtain an occupation order to exclude the other partner. That means that if someone shares their home with an abuser they can obtain an interdict with the power of arrest to try to stop the abuse, but unless they have occupancy rights they cannot exclude the person from the home.We do not want the same situation to exist in Scotland, in which non-entitled cohabitees have an interdict that enables the police to arrest the offender if he breaches it, yet the abused person must continue living in the same home as him unless they can obtain an exclusion order. Currently, in order to exclude an abuser, the abused must have occupancy rights. It is absurd that in England a person can be in the same home as their abuser and they can have an interdict, yet they cannot exclude him from the home. In a relationship in which abuse is a factor, having an interdict with a power of arrest can only increase the difficulties.Our other concern is that relating the degree of protection that is available to the lifestyle or relationship choice of the parties is now outdated. Cohabiting partnerships are as common as marriages these days. All sorts of complex family relationships exist: heterosexual and homosexual couples, married and unmarried and second families. By limiting the full protection to those who are currently in a state of marriage—divorced women are excluded from power-of-arrest provisions—we are behind the times. The act came into force almost 20 years ago. It is time that it was brought up to date with the social reality of human relationships and reflected their diversity.The last main area that requires to be considered for reform is the enforcement of powers of arrest. If an interdict is breached, the police can arrest the perpetrator at their discretion. The discretion has been restricted somewhat by a circular from the Lord Advocate in which he said that all but the most trivial of breaches should result in arrest, but that does not happen in practice. Whether a breach is considered trivial depends on the subjective view of a police officer. We know of numerous cases where an interdict has been breached and the abuser has not been arrested.To overcome that difficulty, we suggest that breach of interdict be made a criminal offence—along the lines of what happens under the Protection from Harassment Act 1997. If a civil non-harassment order made under that act is breached, it is a criminal offence, the penalties for which can be severe. There is a two-tier system: if an interdict is breached, there is a relatively weak response from the criminal justice system; if a non-harassment order is breached, there could be severe criminal sanctions—we do not know how well it is working yet as the legislation is only two years old.A lot of cohabiting women, who are not covered by the 1981 act, are accessing the 1997 act to secure non-harassment orders. The 1981 act deals with domestic abuse; the main aim of the 1997 act is to prevent stalking, not to deal with breaches of interdict, but it is being used for that purpose because it is far more effective than the other legislation.Sometimes a strong criminal justice response is thought to be inappropriate, but we should bear in mind that strong enforcement of the orders will deter some offenders from reoffending. It will not eradicate recidivism, but anything that lessens the likelihood of offending behaviour recurring is worth considering.Civil orders are essential because the woman seeks the order and retains an element of control over the process. She can remain in her own home with the abuser excluded. The alternative—minor sanctions resulting from breach of the peace convictions—is not as effective. The extension of protective civil orders, with appropriate enforcement, will provide one of the best forms of protection for women.The committee might have heard of the three Ps: protection, prevention and provision. They are the central tenets of strategies to combat domestic violence. The Scottish Partnership on Domestic Violence has embraced them. Protection and prevention are well provided for by civil orders. We ask that the committee consider the introduction of a protection from domestic abuse act that reforms the law to extend the class of people who can seek protection; to create a new offence of breach of a protective order; and to rename the orders, as the term "matrimonial interdicts" is irrelevant and does not describe the diversity of people's relationships. We envisage that the act would involve a straightforward repeal and would remove the connection with the matrimonial home and marital statement prerequisites. Those changes would widen the scope of protection to include everyone who needs it.