The Protection from Abuse (Scotland) Act 2001 was introduced to strengthen the civil protection available to individuals at risk of abuse by enabling the attachment of a “power of arrest” to certain interdicts. Section 1 of the Act is the foundational provision for that measure.
Core Provisions of Section 1
- Application for power of arrest
Under subsection (1), a person who is applying for, or has obtained, an interdict for the purpose of protection against abuse may apply to the court for a power of arrest to be attached to that interdict. - Mandatory attachment for certain interdicts
Subsection (1A) provides that in the case of a “matrimonial interdict” (as defined by section 14(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981) or a “relevant interdict” under the Civil Partnership Act 2004, when ancillary to an exclusion order or interim order, the court must attach a power of arrest on application. - Discretionary attachment for other interdicts
Subsection (2) addresses “any other interdict”. In those cases the court must attach a power of arrest if it is satisfied that:- the interdicted person has been given an opportunity to be heard or represented; and
- attaching the power of arrest is necessary to protect the applicant from a risk of abuse in breach of the interdict.
The concept of “necessary” protection is central: this is not a default measure in all interdicts, but is available where the risk justifies it.
- Expiry of power of arrest
Subsection (3) requires the court, when attaching the power of arrest, to specify a date of expiry for the power, which cannot be later than three years after the date when the power is attached.
Thus the power of arrest is not indefinite and must be time-limited from the outset.
Practical Significance in Family Law
For practitioners in the family law sphere, section 1 offers an important protective tool where abuse, or the risk thereof, is present. Some points of note:
- The availability of a power of arrest elevates the consequence of breach of the interdict: the interdicted person may be arrested without warrant (see section 4 of the Act) when in breach.
- The mandatory requirement for certain interdicts (matrimonial / civil partner exclusion-related) underlines the legislature’s recognition of the heightened vulnerability in spousal/civil partner exclusion contexts.
- The discretionary route for “other interdicts” enables flexibility for victims of abuse outside the traditional spousal/civil partner relationship to apply for the enhanced protection, but requires the court to be satisfied of necessity and procedural fairness (right to be heard).
- The three-year expiry limit imposes a built-in review point; in practice one must consider whether extension applications will be needed if risk persists beyond that period.
Strategic Considerations
- Evidence and Risk: To satisfy the court under subsection (2)(c), it is essential to present evidence of the risk of abuse or further abuse in the event of breach of the interdict. Without such evidence, the attachment of the power of arrest may be refused.
- Procedural Fairness: The court must ensure the interdicted person has been given an opportunity to be heard or represented, which emphasises the need for appropriate notices and fairness in the application stage.
- Time-limit Awareness: The three-year cap on the life of the power of arrest means that even successful attachments must be monitored; if the risk remains, an application for extension must be considered under section 2.
- Integration with Criminal Measures: While section 1 concerns civil interdicts, the existence of a power of arrest means that a breach may attract criminal consequences, amplifying the protective effect.
- Client Advice: Clients seeking protection should be made aware of the option of the power of arrest, how it enhances protection, and the additional evidential and procedural steps involved.
Conclusion
Section 1 of the Protection from Abuse (Scotland) Act 2001 is a key provision offering enhanced civil protection in abuse-related interdicts by providing for the attachment of a power of arrest. For any practitioner dealing with interdicts in abuse or domestic contexts in Scotland, it should be a standard part of the assessment when drafting and advising clients. Ensuring the threshold of “necessary to protect” is met, drafting the application accordingly, and monitoring the expiry or extension of the power are essential steps.
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.