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Family Law > Domestic Abuse > Flashcards

Domestic Abuse Flashcards

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1
Q

How is domestic abuse currently defined in Scotland?

A

Domestic abuse is defined as any form of physical, verbal, sexual, psychological, or financial abuse that might amount to criminal conduct within the context of a relationship.

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2
Q

What are the conditions under which a person commits an offense of domestic abuse according to S1(1)(a) of the Domestic Abuse (Scotland) Act 2018?

A

A person commits an offense if they engage in a course of abusive behavior that is abusive to their partner or ex-partner and both further conditions are met.

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3
Q

What does S1(2)(a) of the Domestic Abuse (Scotland) Act 2018 state?

A

A reasonable person would consider the course of behavior likely to cause their partner/ex to suffer physical or psychological harm.

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4
Q

What are the two intentions outlined in S1(2)(b) of the Domestic Abuse (Scotland) Act 2018?

A
  • The person intends to cause their (ex)partner to suffer physical or psychological harm
  • The person is reckless as to whether the course of behavior causes their (ex)partner to suffer physical or psychological harm.
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5
Q

What innovative aspects does the Domestic Abuse (Scotland) Act 2018 introduce?

A
  • Objective test of reasonableness
  • Gender neutral definition
  • Recognition of a broader spectrum of abuse
  • Focus on victims’ experiences.
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6
Q

What is the sentencing aggravator introduced by the Domestic Abuse (Scotland) Act 2018?

A

Abusive behavior directed towards a child, witnessed by a child, involves a child in the commission of the offense, or is likely to adversely affect a child.

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7
Q

What is the paramount consideration in cases involving child welfare according to s11(7A)-(7E) of the Children (Scotland) Act 1995?

A

The welfare of the child is paramount.

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8
Q

What does the Domestic Abuse Act 2021 in England and Wales introduce?

A
  • Statutory definition of domestic abuse
  • Special protections for victims in court
  • Inclusion of coercive control.
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9
Q

What does the Domestic Abuse Protection Notice (DAPN) provide?

A

Immediate short-term protection for victims.

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10
Q

What does the Domestic Abuse Protection Order (DAPO) provide?

A

Flexible, longer-term protection for victims.

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11
Q

What case emphasized that the welfare of the child is the paramount consideration?

A

Sanderson v McManus (1997 SC 55).

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12
Q

What was concluded in the case A v A [2021] SC GLW 018 regarding domestic abuse?

A

The court refused interim contact due to ongoing criminal proceedings related to domestic abuse.

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13
Q

What does Practice Direction 12J (PDJ12) require the court to do?

A

Identify if domestic abuse is likely to be raised as an issue in the case.

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14
Q

What is the ‘no-order’ presumption based on?

A

The principle that no order should be made if it is better that way.

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15
Q

What does the Domestic Abuse (Scotland) Act 2018 aim to criminalize?

A

Emotional and psychological abuse.

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16
Q

True or False: The Domestic Abuse (Scotland) Act 2018 requires victims to demonstrate harm.

A

False.

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17
Q

What is the role of the Victims and Witnesses (Scotland) Act 2014?

A

Allows victims the right to review.

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18
Q

Fill in the blank: The welfare principle in England and Wales is outlined in the _______.

A

[Children Act 1989 s1].

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19
Q

What is a significant challenge faced in domestic abuse cases regarding evidence?

A

Ensuring that evidence of abuse can be presented and considered in private contact proceedings.

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20
Q

What does the objective test of reasonableness in the Domestic Abuse (Scotland) Act 2018 assess?

A

The likelihood of harm.

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21
Q

What was the outcome of the case K v G [2021] SAC (Civ) 1 regarding domestic abuse?

A

The appeal court emphasized the importance of considering the ongoing impact of domestic abuse on the child’s welfare.

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22
Q

What does the Domestic Abuse Act 2021 extend the scope of regarding revenge porn?

A

It covers the threat to disclose intimate images with intent to cause distress.

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23
Q

What did the sheriff find regarding the appellant’s allegations of rape?

A

The allegations of rape/breach of section one of the Sexual Offences (Scotland) Act 2009 are not justiciable in the current proceedings.

This indicates that the sheriff determined the allegations could not be used as a basis to refuse contact with the respondent.

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24
Q

What were the two grounds of appeal in the case?

A
  • The sheriff erred in law by rejecting the appellant’s allegations of rape as ‘not justiciable’
  • The sheriff erred in failing to assess the impact of trauma on the appellant’s mental health and parental responsibilities.
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25
Q

In what context should allegations of criminal conduct made in civil proceedings be determined?

A

On a balance of probabilities.

26
Q

What does the National Strategy to Address Domestic Abuse in Scotland define domestic abuse as?

A

Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.

27
Q

What are some elements of a specialist approach to domestic abuse cases?

A
  • Victim and child safety
  • Keeping the victim informed
  • Offender accountability
  • Information sharing
  • Informed decision making
  • Effective use of the justice system.
28
Q

What is the purpose of a fact-finding hearing in family court related to domestic abuse?

A

To determine particular disputed issues regarding a child’s welfare.

29
Q

What does the Domestic Abuse (Scotland) Act 2018 introduce?

A

A statutory offence of domestic abuse aimed at reflecting the experience of victims of long-term abuse and ensuring more effective investigation and prosecution.

30
Q

What is the statutory aggravator introduced by the Domestic Abuse (Scotland) Act 2018?

A

Abusive behaviour directed towards a child, witnessed by a child, involves a child in the commission of the offence, or is likely to adversely affect a child.

31
Q

True or False: There is a formal legal presumption in favour of contact in Scotland.

A

False.

32
Q

What approach does Norrie describe regarding child contact?

A

The responsibility and right of contact is based on the assumption that it benefits the child to maintain links with both parents.

33
Q

What should be considered in deciding whether to have a finding of fact hearing?

A
  • The nature of the allegations
  • The relevance of the allegations to the child arrangements order
  • The necessity and proportionality of a separate hearing.
34
Q

What is the focus of the Domestic Abuse Act 2021?

A

To support victims in achieving recognition of past domestic abuse and protection from further abuse.

35
Q

Fill in the blank: The alleged perpetrator must be given the customary warning against _______.

A

[self-incrimination].

36
Q

What is the definition of domestic abuse according to Equally Safe?

A

Any form of physical, sexual or mental and emotional abuse which might amount to criminal conduct within the context of a relationship.

37
Q

What percentage of respondents believed existing criminal law does not provide sufficient powers to address domestic abuse?

A

93%.

38
Q

What should be done if a party wishes to adduce evidence about a complainant’s sexual history with a third party?

A

A written application should be made in advance for permission to do so, supported by a witness statement.

39
Q

What is one of the challenges highlighted regarding the information flow about domestic abuse?

A

There is a risk of partial or inaccurate information being conveyed, leading to delays.

40
Q

What is the significance of the Istanbul appeal hearing in the context of family courts?

A

It addresses whether the Family Court should apply a consistent definition of rape, sexual assault, and consent.

41
Q

What is the outcome of a fact-finding hearing typically used for in family proceedings?

A

To provide a narrative account of what has happened in the lives of individuals over a significant period.

42
Q

What is the definition of domestic abuse?

A

Any form of physical, sexual or mental and emotional abuse that takes place within the context of a relationship between partners or ex-partners.

43
Q

What could creating a specific offense for domestic abuse help address?

A

It could help end a ‘victim blaming’ culture and assist victims in understanding that they are being abused and not at fault.

44
Q

True or False: A delay in a victim’s response or report means the claim is false.

A

False

45
Q

What should the COPFS be able to apply for in the interests of the complainer?

A

A non-harassment order.

46
Q

What is suggested regarding orders in domestic abuse cases?

A

Orders should be automatic unless the victim requests otherwise.

47
Q

What is the significance of fact-finding hearings in child contact cases?

A

They ensure that abuse is visible and factored into decisions regarding contact.

48
Q

What did the Children and Families Act 2014 introduce regarding parental involvement?

A

A presumption that involvement of a parent in a child’s life will further the child’s welfare.

49
Q

What is one of the most dangerous times for an abused woman?

A

In the months after separation.

50
Q

What does the welfare principle in the Children Act 1989 state?

A

The welfare of the child is paramount.

51
Q

Fill in the blank: Domestic abuse is defined as ‘any incident or pattern of incidents of ______ behavior, violence or abuse between those aged 16 or over.’

A

controlling, coercive or threatening

52
Q

What are some barriers to addressing domestic abuse?

A
  • Lack of resources
  • Lack of access to legal representation
  • Adversarial proceedings
53
Q

What perception exists regarding mothers in child arrangement cases?

A

There is a perception that they make false allegations of domestic abuse.

54
Q

True or False: Less than 20% of domestic abuse victims report the abuse to the police.

A

True

55
Q

What might be assumed if a child does not want contact with the abuser?

A

It may be assumed to be due to parental alienation rather than the result of abuse.

56
Q

What is the burden of proof in allegations of domestic abuse?

A

It is on the person raising the allegations.

57
Q

How can engaging with children directly benefit understanding their needs?

A

It provides a more accurate idea of what individual children might want.

58
Q

What does the adversarial approach in court assume?

A

It assumes that both parties are equal and equally resourced.

59
Q

What does S91(14) of the Children Act 1989 pertain to?

A

It pertains to restrictions on applications for contact orders.

60
Q

What should be recognized regarding an abuser’s ability to parent?

A

An abuser cannot be a good parent.

61
Q

What did the case of Re H-N and Others emphasize about domestic abuse allegations?

A

The importance of considering patterns of behavior rather than isolated incidents.

Family Law (2 decks)

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