Interdicts for domestic abuse

An interdict is a court order issued by the Court of Session or a sheriff court. It is made on the application of a person raising an action and prohibits the unlawful behaviour that is specified in the action. If the interdicted person does not conform, the person who has the interdict for her/his protection can inform the court that the order has been breached. If the interdicted person is proved to have broken the interdict, they may be found to be in contempt of court and subject to a fine or, in more serious cases, a term of imprisonment.

A power of arrest can be attached to certain interdicts, including matrimonial interdicts. [1] These are interdicts obtained under the Civil Partnership Act 2004, [2] interdicts obtained under the Children (Scotland) Act 1995 [3] and in cases where the interdict has been obtained to protect an individual against abuse by another individual, [4] giving the police the power to arrest and detain when there has been a breach.

An interdict can be granted only if the behaviour it seeks to prohibit is unlawful and can be reasonably anticipated.

Unlawful behaviour includes acts that are not necessarily illegal but infringe another person's rights. In domestic abuse cases, this will include acts of abuse and threatening behaviour that falls short of abuse. An interdict cannot prevent someone from doing something s/he is entitled to do. For example, a person cannot be interdicted from telephoning someone else although s/he can be interdicted from making abusive and threatening phone calls to her/him.

An applicant seeking an interdict must have some reason for believing that there is likely to be unlawful behaviour. Previous such behaviour and threats will provide sufficient indication of that likelihood. An interdict should be no wider than is necessary to protect the complainer against unlawful acts. It must also be sufficiently precise that the person interdicted is clear what it is that s/he is prohibited from doing. [5]

Any person can apply to the court to prohibit behaviour that affects her/him. It is a remedy available whether someone is married or unmarried, a civil partner heterosexual, gay or lesbian. A guardian may apply on behalf of a child who is under the age of 16. [6] Children of 16 or older have to apply themselves. Generally, a child over the age of 12 may apply on her/his own behalf. [7]

The most common form of interdict is called a non-molestation order and generally prohibits a person from abusing the complainer verbally, by threatening her/him, by putting her/him into a state of fear and alarm or distress and by using abuse towards her/him.

Interdict can also be granted to prohibit other behaviour that is unlawful and reasonably anticipated. In domestic abuse cases this may include a prohibition against removing a child from the care of parent, removing furniture or destroying property. [8]

An interdict can be obtained to prevent unlawful entry to a home. This can be used to prevent a return to the home by someone who does not have a right to occupy it. An interdict cannot be used to evict someone, even if s/he has no rights, but it can be used after s/he has left or been evicted in order to prevent her/his return. [9]

An application for interdict does not have to be part of a divorce action or any other type of action.

The action will be raised in the jurisdiction of the court in which the anticipated action may take place or the court that has jurisdiction over the perpetrator. [10] The applicant can raise the action on her/his own behalf, but it is a difficult process. There are no standard forms. The applicant would be responsible for preparation of all her/his own paperwork and representation. Solicitors make almost all such applications. An applicant must be represented by a solicitor or advocate in an interdict action. Lay representation is not allowed.

The application to the court is made in the form of an initial writ that will generally specify the applicant's address. An applicant who has moved to a safe address, and fears abuse if the perpetrator finds her whereabouts, can ask the court to allow her to give her address as care of her solicitor. [11]

The writ specifies the nature of the relationship between the applicant (pursuer) and the perpetrator (defender). It specifies details of past conduct against the applicant, which indicates that it is likely that the defender will commit a civil wrong against the pursuer.

An interim interdict can be applied for at the commencement of the action, before the papers are served on the perpetrator. An interim interdict is one that can be granted at an early stage of an action, before the court hears evidence. The case should still proceed to a full hearing of evidence (a proof).

An interim interdict is useful because it can be obtained quickly at the beginning of an action. If applied for at that stage the defender will not be represented at that hearing nor be aware that it is taking place. The court will grant an application for interim interdict if it is satisfied, on the basis of submissions made by the applicant's solicitor, [12] that an interim order is justified on the balance of convenience. In considering the balance of convenience the court has regard to the effects on both parties if the order were to be granted, or not granted.

An interdict, interim or final, only takes effect when the defender is made aware of its terms. [13] An interim interdict, made without the defender's knowledge, is effective only after copies of the initial writ and the interim interdict itself are served on her/him. [14]

Once the writ and interim interdict or the interdict are served on the defender, s/he has an opportunity to defend the action. If s/he does not do so, an interim interdict granted in the Sheriff Court until a further order of court, will be effective for only a year and a day from the date of service on her/him. [15] If the action is defended the court will hear evidence and decide whether the pursuer has proved, on the balance of probabilities, that it is likely that the defender will commit a wrongful act. If so, a perpetual interdict will be granted.

If the defender does not defend the action, then the applicant must decide whether to apply to have a perpetual interdict granted. The court will grant such an interdict if it is satisfied that there is a continuing need for it. It may choose to continue the interim interdict further.

The applicant who obtained the interdict from the court has sole responsibility to decide to take action over any breach of it.

If the court action in which the interim interdict was granted has not finished, the court can deal with any breach of the order in that same action.

If the case in which the interdict was granted has finished then a separate application for breach of interdict will be required. Any application for breach of interdict can only proceed if the Lord Advocate or procurator fiscal has been informed of the intention to bring breach of interdict proceedings and has agreed to that course of action. [16] This is to prevent the perpetrator from having two sets of proceedings for the one incident (breach of interdict and criminal proceedings).

'Breach of interdict' proceedings are quasi-criminal proceedings. There is a higher standard of proof; the breach must be established beyond reasonable doubt. [17] Corroboration is not required. [18]

If breach of interdict is established the court has the power to fine or impose a term of imprisonment up to a maximum of three months (imposed in the Sheriff Court) and six months (imposed in the Court of Session). [19]

Where a power of arrest has been attached to the interdict, the police can remove the perpetrator from the scene until the next court day and then possibly for a further 48 hours. This will quickly and temporarily remove her/him from the scene. The applicant with the interdict still must decide whether to raise proceedings for breach of interdict in order for a fine or a term of imprisonment to be imposed.

Interdicts in domestic abuse cases simply place a restriction on violent and abusive behaviour. This does not guarantee that the interdict will be effective, or that it will provide protection.

Reliance on interdicts for protection puts the onus and responsibility for enforcement on the applicant/complainer. This can be a difficult burden when someone has been abused.

The process is likely to be expensive unless the complainer is entitled to legal aid without any contribution towards the cost. Legal aid without a contribution is likely to be restricted to those on Income Support. If the complainer has to pay privately, a straightforward undefended interdict in the sheriff court is likely to cost around £800.