Monday, February 25, 2008

Domestic Violence Scotland

In Scotland, the main legislation which deals with the problem of domestic violence is contained in the Matrimonial Homes (Family Protection)(Scotland) Act 1981.

This legislation was enacted to deal with the problem that very often the victim of domestic violence is forced to remain in the family home because he or she has nowhere else to live.

The 1981 Act is mainly concerned with giving rights to spouses in respect of the matrimonial home. The act refers to the ‘entitled spouse’ and the ‘non-entitled spouse’. The entitled spouse is the one who has legal title to the matrimonial home, e.g. the owner or tenant. The non-entitled spouse is the spouse who has no legal title to the property, but is given certain rights of occupation under the 1981 Act.

Under the 1981 Act, the non-entitled spouse has the right to occupy the matrimonial home. However, the right to occupy the home on its own would be of very little use in cases of domestic violence. For this reason, the 1981 Act also gives additional rights. For example, the act entitles the non-entitled spouse to make payments, such as rent, that are due by the entitled spouse or to carry out repairs.

More powerfully, section 4 of the 1981 Act gives the court the power to exclude a spouse whether entitled or non-entitled from the matrimonial home. The court must grant an order where it is ‘necessary for the protection of the applicant of any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse which is or would be injurious to the physical or mental health of the applicant or child’. In other words, the court will exclude a spouse who commits domestic violence on their family.

Where an exclusion order is granted, the court must also make certain other specific orders where these are requested by the applicant. The court must grant:

• A warrant for the summary ejection of the non-applicant spouse from the home

• An interdict prohibiting the excluded spouse from entering the matrimonial home without the express permission of the applicant

• An interdict prohibiting the non-applicant spouse from recovering any furniture from the house

An exclusion order or a matrimonial interdict can be enforced by the police, who can arrest a spouse in breach of his or her obligations in certain circumstances.

Scotland Domestic Abuse Helpline 0800 591203


lynda 25 November, 2008 10:00  

This is not accepted in the English Courts.
Please note if you mention DV they remove your child and give the child to the abusive father.
End of

lynda 25 November, 2008 10:03

lynda 25 November, 2008 10:04  

Courts put kids at risk
Ruth Pollard
November 25, 2008
CHILDREN are handed over to violent fathers and women are exposed to further harm in family mediation sessions because of flawed amendments to the Family Law Act. Too often these changes place parenting rights over the safety of children, experts warn.
The changes, made by the Howard government two years ago, have forced women with current apprehended violence orders against their partners into mediation where further threats of abuse occur, the Herald has learned.
And the presence of domestic violence or child abuse made little difference to whether fathers were given overnight access to their children, research from the Australian Institute of Family Studies found, prompting calls for urgent reforms to the system and better training for magistrates and mediators.
"If there is domestic violence occurring in that relationship, mediation is not appropriate at all," said Betty Green, convener of the NSW Domestic Violence Coalition.
"It is having horrendous consequences for women who are desperately trying to keep their children safe and yet the family law court is handing over children to violent men who are not necessarily interested in parenting these children."
Ms Green called on the Federal Government to implement urgent changes to the act so the safety of children was privileged over a parent's right to contact.
"The idea of shared parenting is fine in those relationships where prior to that there was some kind of joint responsibility in raising children, but in domestic violence relationships that is not what happens," she said.
"You get a crazy situation where from a state perspective child protection agencies may be involved, where if a mother were to provide contact for the abuser that would be grounds to lose her children because she was exposing them to violence.
"On the other hand, you have a family law court in the federal system that puts that order to one side, and says, 'Here is a father and he must have access rights to his children'."
The Attorney-General, Robert McClelland, said the Government was aware of concerns over the way shared parenting provisions in the act have been applied in cases where domestic violence is present.
"That is why the Government is implementing new accreditation standards that will require all professionals - from mediator to judge - to be able to identify and respond to evidence of domestic violence," he said in a statement to the Herald.
"My department is currently consulting with key stakeholders to find better ways to address family violence in the family law system [and] the Institute of Family Studies is also conducting a detailed examination of the impact of the shared parenting presumption - that review will be completed in mid-2009."
Karen Mifsud, a solicitor in the Women's Legal Resource Centre domestic violence advocacy service, said many women felt pushed into mediation because they were unable to pay for legal representation to go to court.
"We have had clients reporting that they do not want to go to mediation because they feel intimidated or scared but feel they have no option as they need to get some sort of arrangement for children in place."
Domestic violence is listed as a factor in considering the best interests of the child under the Family Law Act, Ms Mifsud said.
"However, it is only one factor and the case law indicates that there needs to be exceptionally high conflict between parents or extreme domestic violence … to be taken into account."

lynda 25 November, 2008 10:12  

We can all relate to not wanting to be in the same room with an abusive father of your child.

In Luton they are now getting specialist training for DV cases in the magistrate courts.Please NOTE there is no specialist in the Family court in private or public law to evaluate the problem of DV.
Most women we know who mention DV have lost custody.
Globally women are gathering on lone in forums all saying the same thing.
Deal with it just like we have to .
If this system is good enough in principle for us it can be used on anyone else in the future.

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