In context: Emergency Protective Orders

The First Minister recently announced a new power to protect victims of domestic abuse. What is it and how might it work?

During her party conference closing speech in October, First Minister Nicola Sturgeon announced that the Scottish Government will introduce new legislation before the end of this parliament to allow police to issue Emergency Protective Orders (EPOs) in cases of alleged domestic abuse.

These protective orders – also known as Emergency Barring Orders – are immediate, short-term powers designed to remove the perpetrators of domestic abuse from the family home. This should allow victims to remain in their home rather than fleeing in search of safety and security.

“It should not be the victims of abuse who lose their homes, it should be the perpetrators,” Sturgeon said.

EPOs would allow the police to quickly impose a ban on individuals while an investigation is carried out, allowing victims to remain in their homes regardless of who is named as owner or tenant.  

Right now, the only option for someone wishing to keep their abuser away in the time before the perpetrator enters the criminal system is to seek a civil protection order, which they may have to pay for.

This has led to a situation where victims, overwhelmingly women, feel they have to leave to escape the threat of abuse. More often than not, children have to escape with them.

Domestic abuse is the number one cause of homelessness among women in Scotland. According to Scottish Women’s Aid (SWA), ‘dispute within the household: violent or abusive’ was the reason given for homelessness by 4,395 applicants for emergency housing in 2017/18. Women made 78 per cent of these applications and more than half had children with them.

Campaigners in favour say introducing EPOs reflects a better understanding of what it means to ‘leave’ an abuser. SWA said it “represents a paradigm shift in approach to protecting women and children experiencing domestic abuse”.

Scotland’s Domestic Abuse Act of 2018 was celebrated for widening the definition of domestic abuse to include psychological abuse and coercive and controlling behaviour as well as sentencing aggravators for harm caused to children by abusive environments. 

But third sector organisations raised concerns as the act took shape that there were gaps in protections, which it is now hoped EPOs will address.

A consultation on protective orders for people at risk of domestic abuse closed in March 2019. There was near unanimous agreement that the police should have this power and, additionally, that the courts should have powers to impose similar but longer-term orders. 

But some questions drew less consensus. Campaigning organisations have slightly different views to Police Scotland, for example, on some key details.

The Scottish Government says the consultation responses will inform the development of this policy as it aims to introduce legislation before 2021.

“For years, women and children have been asking us, ‘why should I be the one who has to leave my home, my pets, my belongings and my community?' We are glad to see the Scottish Government going further to protect them.” – Scottish Women’s Aid

What are the next steps?

While there was widespread agreement among respondents to the consultation on the need for EPOs, there are questions about some details which will be debated as the legislation takes shape:

Who should they apply to?

The barring orders would likely apply only to partners and ex-partners, as defined by the Domestic Abuse Act. But some would like to see it extended to apply to any adult family member, or person living in the household. Some respondents also believe that it should be possible to seek an EPO on the basis of protecting children in the home, reflecting children’s experience of domestic abuse through the new child aggravation feature contained in the act.

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What about consent?

One of the more fraught questions is likely to be whether a victim’s consent is always necessary when police decide to seek an EPO. Many respondents were of the view that consent is always needed in order to respect the interests of the victim. But there is some discussion about the nature of informed consent in domestic abuse settings and whether it is always possible, or desirable, to require a victim’s consent.

What else could be covered?

Beyond barring access to shared housing, there is widespread agreement that EPOs should also include other measures, such as prohibiting access to victims’ and children’s places of work and school. Many respondents also said that the orders should also stop the perpetrator contacting the victim in any setting, online or in person.

Who decides?

Another area of contention is on who decides when an EPO should be issued. Although it would be the police and/or courts who hold the power to impose EPOs, some campaigners say that victims should have the right to request an order from the police. Others, including Police Scotland, argue that there should be some clear evidence of “ongoing risk”, something Scottish Women’s Aid rejects. 

Around the world

The Istanbul Convention is a Council of Europe convention on tackling violence against women and domestic abuse. It aims to “open the path for creating a legal framework at pan-European level to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence.”

It was opened for signatures in 2011 in Istanbul and came into force in 2014.

The United Kingdom is a signatory along with 42 other countries, 34 of which have ratified it, most recently Ireland.  

The UK has not yet ratified the convention, as domestic abuse legislation across the nation does not yet meet all the convention’s requirements.

Under the section referring to EPOs, it says: “Parties shall take the necessary legislative or other measures to ensure that the competent authorities are granted the power to order, in situations of immediate danger, a perpetrator of domestic violence to vacate the residence of the victim or person at risk for a sufficient period of time and to prohibit the perpetrator from entering the residence of or contacting the victim or person at risk. Measures taken pursuant to this article shall give priority to the safety of victims or persons at risk.”

The UK Joint Committee on Human Rights called for the government to prioritise the ratification of the convention, something Scottish Women’s Aid, Women’s Aid, Amnesty International and others have also pushed for. 

A 2017 act, introduced by former SNP Work and Pension spokesperson Dr Eilidh Whiteford, obliges the UK Government to update parliament on the progress towards ratification of the Istanbul Convention on an annual basis. The next report is due by the end of November.

The Domestic Abuse Bill (2019) contained in the recent Queen’s Speech said “the UK is committed to ratifying it as soon as possible”.