Protective remedies enable Scottish courts to intervene swiftly to safeguard vulnerable parties, including partners, cohabitants, and children. Where domestic abuse, harassment, or harmful conduct arises, a combination of statutory and common-law measures empowers the court to regulate contact, determine occupancy rights, and ensure the safety of applicants and children.
This article sets out the legal framework relevant to the interdicts and orders typically sought.
1. Interdict Protecting the Care and Control of Children
An interdict may be sought to prevent a defender, or any person acting on their instruction, from removing or attempting to remove the children from the pursuer’s care. This is grounded in the court’s inherent equitable jurisdiction and is commonly used to maintain stability during highly contentious family-law disputes.
Where the applicant seeks a power of arrest, Scottish law imposes strict limitations. A power of arrest is competent only where it protects the applicant from abuse. Given that this interdict’s purpose is to safeguard the children’s placement rather than the applicant’s personal protection, a power of arrest cannot ordinarily be attached.
2. Domestic Abuse Interdict Determinations
Section 3(1) of the Domestic Abuse (Scotland) Act 2011 allows the court to determine that a particular interdict is a domestic abuse interdict. This status is significant only where a power of arrest is sought under section 4 of the 2011 Act.
Accordingly, such a determination is not required unless the applicant intends to attach a power of arrest to the specified interdicts. This reflects the statutory scheme in which the domestic-abuse designation serves as a procedural gateway rather than an independent protective remedy.
3. Molestation Interdicts under Section 18A of the Matrimonial Homes (Family Protection) (Scotland) Act 1981
3.1 Scope of Section 18A
Section 18A(2)(a) of the 1981 Act empowers the court to interdict a defender from molesting the pursuer. Molestation encompasses a wide range of behaviours including:
- verbal abuse,
- threats,
- repeated telephoning or messaging,
- email or other electronic communication,
- conduct causing fear, alarm, or distress, and
- any form of violence.
This provision applies not only to spouses but also to cohabitants by virtue of section 18(3).
3.2 Interim Interdict
Where urgency is established, an interim molestation interdict may be granted immediately, providing early protection before full consideration of the merits, even before an action is served on the defender.
3.3 Interaction with Section 18B: Powers of Arrest
Section 18B provides that a power of arrest may be attached to a section 18A interdict, but only where necessary to protect the applicant from further abuse. The order authorises police to arrest without warrant where they reasonably suspect a breach. However, as with interdicts concerning children, a power of arrest is competent only when it protects the applicant, not third parties.
4. Exclusion Orders Under Sections 4(1), 4(2), and 4(6)
An exclusion order suspends the defender’s occupancy rights in the matrimonial home. Under sections 4(1) and 4(2), the court may grant such an order where it is necessary to protect the applicant or any child of the family.
Where urgency requires immediate protection, an interim exclusion order may be granted under section 4(6), allowing the defender’s removal from the home pending a full hearing.
5. Mandatory Ancillary Orders Under Section 4(4)
When an exclusion order is granted, section 4(4) obliges the sheriff to issue three further protective measures unless the defender satisfies the court that a particular measure is unnecessary.
5.1 Summary Ejection (Section 4(4)(a))
The sheriff must grant a warrant for the summary ejection of the defender from the matrimonial home. This ensures immediate enforcement of the exclusion order.
5.2 Interdict Prohibiting Re-Entry (Section 4(4)(b))
The defender must be interdicted from entering the matrimonial home without the pursuer’s express permission, securing the applicant’s ability to remain in the property without disturbance.
5.3 Interdict Concerning Removal of Furnishings (Section 4(4)(c))
The defender must be interdicted from removing furniture, plenishings, or belongings from the home except with the pursuer’s consent or a further court order. This protects domestic assets during a period of conflict.
These measures are statutory requirements in all exclusion-order cases unless the defender proves that a particular remedy is not required.
6. Interim Orders Under Section 4(6)
Each of the above ancillary orders, summary ejection, non-entry interdict, and prohibition against removal of furnishings, require to be granted ad interim under section 4(6)where sought. Interim relief ensures that the protective framework is operational from the outset of proceedings.
7. Additional Discretionary Perimeter Interdict Under Section 4(5)(a)
Section 4(5)(a) allows the court to impose broader geographical restrictions, such as prohibiting the defender from entering or remaining within a 200-metre radius of the matrimonial home. This may be appropriate where physical proximity would undermine the effectiveness of the exclusion order or present a risk of confrontation.
Conclusion
The suite of remedies set out in the Matrimonial Homes (Family Protection) (Scotland) Act 1981, supplemented by the Domestic Abuse (Scotland) Act 2011, provides a robust and structured legal framework for protecting individuals and children from domestic abuse, harassment, and destabilising conduct.
Key protective tools, such as molestation interdicts, exclusion orders, mandatory ancillary orders, powers of arrest, and perimeter restrictions, operate together to ensure immediate and enforceable security for applicants.
Where invoked appropriately, these remedies allow the sheriff to take swift, decisive, and proportionate action to prevent harm and maintain stability in the family home. XK Family Law Solicitors Aberdeen can assist you with all the above matters.
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.