Remember: these are general answers and should not be used as a substitute for legal advice. We would always recommend that you seek tailored advice about your particular circumstances.
If you are (or were) married or if he is registered as the children’s father, he has parental rights.
This includes the right to have contact (spend time) with them and also to have a say in where they live.
If the children are with you, usually, to exercise this right he will either have to come to agreement with you or go to court to get an order.
If agreement is not possible, the court will decide if he can see the children. In making that decision, the Sheriff (judge) will consider whether it is in the children’s best interests to have contact with him.
You may be able to apply to the court for an interim interdict and then a non harassment order.
The interim interdict is an emergency temporary court order which will stop him from approaching you, contacting you or harassing you in other ways. This can be put in place while an application for a non harassment order is going through the court.
A non harassment order can then be put in place to prevent him from approaching you / contacting you on a more permanent basis (usually 3 years but can be extended or put in place for longer).
You might be able to get an exclusion order. This is an order which temporarily suspends your partner’s right to live in the house.
The court will look at lots of different factors in deciding whether an exclusion order should be granted – eg are you / your children at risk if one isn’t granted? Do you have anywhere else safe you can go? Does your partner have somewhere else he can live? etc.
If you are not married or in a civil partnership, and the lease or mortgage is in his name only, you might need to get a court order which confirms that you have the right to live in the property before you can ask the court for an exclusion order.
You should ask the Procurator Fiscal for the reason why they cannot go ahead – try to get this is writing if you can.
The reasons will vary from case to case but in cases of Gender Based Violence, one of the main reasons why the Procurator Fiscal cannot go ahead is because there is a lack of corroboration. This means that there needs to be two pieces of evidence – eg if your partner hit you, he denies this and no-one else saw this, there is only one piece of evidence against him – your statement. This is not enough – there would need to be something else that could be used as the second piece of evidence.
Gender Based Violence like rape and domestic abuse often takes place behind closed doors. It is not unusual that prosecutions cannot go ahead due to a lack of corroboration.
You might also want to consider asking the Procurator Fiscal to review their decision by making a Right to Review application.
Once a verdict has been reached, this is usually the matter closed from a criminal perspective. However, you might be able to apply to the civil court for compensation (known as civil damages) from him even where he was found not guilty. This is because, in the civil courts, the standard of proof is lower.
A civil action is the right step for some women but you should think carefully about whether you want to go ahead with an action for civil damages. The process can be long and difficult and even if the court orders that he has to pay you money, if he doesn’t have any money then you are unlikely to actually get anything from him.
You can also apply for criminal injuries compensation. This can be applied for even where he has been found not guilty as long as you have reported the crime and co-operated with the police and procurator fiscal where possible. Criminal injuries compensation is paid through a government fund and therefore would not usually involve any contact with the perpetrator and in most cases he would not be notified of your claim.
The usual time limit to apply for for civil damages is three years after the incident (such as the rape, assault, sexual assault). The usual time limit for criminal injuries compensation is 2 years. It might be possible to argue that your claim should be allowed “out of time”.
Please contact our Helpline or arrange a surgery appointment for more information.
For most crimes involving Gender Based Violence, you will be entitled to Special Measures as a vulnerable witness. This means that you should be able to give evidence behind a screen or by video link.
However, your ex partner will be able to see you, even where you can’t see him and, if you use a screen, you will be able to hear him. Also, most courts have just one entrance for everyone so there is a chance that you will see in the corridors etc of the court.
You should try to arrive early so that you can be in the waiting room before he arrives and if possible take someone with you for support as that can help if you do see him or his friends or family.
If you do not have a friend or family member who can support you, there are some organisations who might be able to help.
This will depend on exactly what kind of visa you have. It is therefore important to seek legal advice.
However, you may be entitled to apply to stay in the UK separate to your partner.
You might also be entitled to refuge accommodation and other benefits whilst you do so depending on the specific circumstances of your case.
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