A guide to protective orders
When you experience any form of abuse or violence, you can request legal protections to keep yourself and your children safe from the abuse. These are known as Protective Orders, and they can legally prevent someone from doing certain things —for example, contacting or approaching you. The perpetrator will usually face legal consequences if they breach the order, which may include being arrested by the police.
When thinking of legal protections, often the popularly known ‘restraining orders’ come to mind. However, it’s important to clarify that Scotland does not have retraining orders and instead offers different types of Protective Orders.
In this guide we give an overview of each of them and explain what they do for the person who requests them.
1. Protective orders and the criminal justice process
When you report a crime to the police, if there is sufficient evidence, the police may put in place protective measures known as bail conditions.
Bail conditions forbid the accused from doing certain things, such as communicating, approaching or visiting the home of a victim. After the criminal case goes to court, if the person accused is found guilty, then the court may put in place a criminal non-harassment order.
If the criminal court or the police do not request these measures for you, or you wish to have more protection, then you can request your own protective orders through the civil court process, which we explain below. You don't have to wait for a criminal charge or conviction before you can request a civil protective order.
2. Civil court protective orders
In this section we explain the different types of protective orders which you can request from a civil court. To apply for them you will need the assistance of a solicitor. It is really important that you get legal advice and representation to find out if you can get a protective order in your situation. You can find a solicitor and instruct them directly or contact our legal helpline for more information.
Interdicts
An interdict is an order which forbids a person from doing something and/or from visiting a certain place or approaching a certain person. An interdict can have specific requirements, such as preventing a person from visiting your workplace or place of education.
Before making a final decision on your case, the court can grant you what is known as an interim interdict, which is a temporary emergency order. For your safety, you can request an interim interdict from the court before any legal action is served on the perpetrator.
Once the action has been served on the perpetrator, you can request to attach a power of arrest to an interdict and to an interim interdict. This means that if the perpetrator breaches the interdict, the police may be able to arrest them if there is sufficient evidence.
You can apply for an interdict against someone who is still living with you. For example, you can have an interdict to stop a person from abusing you (known as a non-molestation order). However, you cannot use an interdict to evict someone if they have the right to live in the same property as you (please see the section on exclusion orders later in this blog).
Non-harassment order
A non-harassment order is designed to prevent behaviour which may cause you harm or distress. This is similar to an interdict but provides additional protection from harassment. To request this order, the behaviour must have made you feel distressed or alarmed (for example, if your ex-partner is repeatedly phoning you or coming to your home).
It can take some time before the court will grant a non-harassment order, in which case you can ask for an interim interdict (a temporary emergency order preventing specific behaviour) to get protection before the court grants a non-harassment order. For your safety, you can also ask the court for an interim interdict while the non-harassment order is issued against the abuser.
If the harassment you are experiencing amounts to domestic abuse, then the behaviour only has to happen once before you can apply for a non-harassment order. If the harassment is not part of a domestic abuse situation, then the behaviour must happen on at least two occasions before you can apply for the non-harassment order.
A non-harassment order is granted by the Sheriff Court. The person subject to a non-harassment order would automatically commit a criminal offence if they breach the order.
Exclusion order
If your ex-partner has occupancy rights to the family home (meaning that they have the right to live in the family home) and you wish to have them removed from the home for your safety (if the police have not put bail conditions in place), you must apply to the court for an exclusion order.
An exclusion order suspends the occupancy rights of your ex-partner for an initial period of 6 months (you can apply to have this extended). Occupancy rights are the right to stay in a family home and apply where an individual either:
- owns the home
- is named as a tenant on the tenancy agreement, or
- is married or in a civil partnership with someone in one of the two categories above.
You can apply for an exclusion order if your partner has harmed or threatened to harm you and/or your children, either physically or mentally. To apply for an exclusion order against another person, both of you must have the right to occupy the home. You do not need to be living in the home when you apply for the order; this means that you can apply if you have temporarily moved out of the home for your own safety.
You can also apply for other protective orders alongside an exclusion order, such as interdicts.
If your ex-partner does not have the right to live in the home and has refused to leave, you can apply to the court for a warrant of ejection. A warrant of ejection is an order that instructs the removal of a person from a property.
For more information, read our guide on Exclusion Orders, which explains how to apply for an order and what to expect from the process.
Forced marriage protection order
A forced marriage is one where one or both persons do not consent to a marriage (or they can’t consent if they are children or an adult with a mental disability) and they are coerced into marrying. Coercion can happen in different ways, like being harassed, threatened, blackmailed or pressured (physically, financially, emotionally and/or sexually). You can read more about your rights if you’re being affected by forced marriage in this guide.
A forced marriage protection order (FMPO) can protect you from being forced to marry someone and offers protections to those who are already in a forced marriage. An application for this type of order can be made by the victim/survivor or by certain organisations (such as a local authority) on their behalf in recognition of the difficulties that some may have in reporting the situation to the police.
Each order will be unique as the court will include what they believe is necessary to protect you. The order can include restrictions, requirements or bans to prevent you from being forced into marriage. For example, the order may forbid someone to take your passport from you. If someone breaks a FMPO, they may receive a sentence of up to two years in prison or a fine of up to £10,000, or both.
Female genital mutilation protection order
Female Genital Mutilation (FGM) involves the removal of external parts of a girl or woman’s genitalia, it is illegal in Scotland and can cause significant emotional and physical pain for the victim. You can read more about FGM in this article.
FGM protection orders can impose conditions or requirements to protect a person from FGM or to safeguard women and girls who have already undergone an FGM procedure. The purpose of an FGM protection order is to keep a person at risk from FGM safe from another person, to reduce the likelihood of FGM from happening, and to protect the woman or girl who has been affected by FGM.
An application for this type of order can be made by the victim/survivor or by certain organisations (such as a local authority).
An order may ask a person to: take the protected person to a place of safety or any other place (such as a GP surgery or hospital); refrain from any violent, threatening or intimidating behaviour; refrain from taking the protected person to a certain place; other similar requirements. If someone breaks a FGMPO, they may receive a sentence of up to five years in prison or a fine of up to £10,000, or both.
3. Getting legal advice or assistance to apply for protective orders
If you would like to know whether you can request a protective order in your situation or you are considering applying for one and you need legal advice:
- You can speak to our solicitors by contacting our legal helpline or book an appointment for one of our advice surgeries.
- We also recommend finding legal representation through the Law Society of Scotland website. This guide explains the process of finding a solicitor and how to prepare for the first meeting.
