Man convicted of assaulting wife and young son fails in challenge to three-year non-contact order
A man who was sentenced to two years’ imprisonment for assaulting his ex-partner and his son has been unsuccessful in his challenge of a non-harassment order preventing him from making contact with both of his children for three years.
GRPW, the appellant, was prohibited from approaching his wife, from whom he became separated in 2019, and his two children, and was also prohibited from entering their home. He did not challenge the imprisonment part of the sentence but argued that the non-harassment order was unnecessary and excessive in its inclusion of his children.
The appeal was heard by Lord Pentland and Lord Matthews in the High Court of Justiciary. The appellant was represented by Findlater, advocate, and the Crown by Edwards QC.
Significant domestic violence
The appellant had pled guilty to four charges in June 2021, comprising two charges of assaulting his wife, one of assaulting his son, C, and one of sending abusive and threatening messages to his wife via social media. Prior to their separation, the appellant and his wife had been together for 24 years and had two children together, C and L, who were born in 2007 and 2010 respectively.
In both charges 1 and 2, the appellant had punched his wife in the head or face following an argument. The latter charge also included an incident where he threw a dog cage at her and seized her by the neck, the day after which the parties separated. The third charge related to an incident where the appellant struck his then 8-year-old son on the back of the knee, causing him to fall down the stairs and injure his head.
A motion was made by the fiscal depute requesting a non-harassment order, which the complainer wished to have in place for as long as possible. It was submitted that it would be appropriate to include the children in such an order because they had witnessed significant domestic violence against their mother. The appellant opposed the granting of such an order on the basis that the views of the children on the matter had not been properly and independently investigated.
The sheriff took the view that section 234AZA of the Criminal Procedure (Scotland) Act 1995 required him to include the children in the order unless he could conclude there was no need for them to be protected by it. He felt he could not reach that conclusion in this case given that the children had seen the appellant assault their mother.
It was submitted for the appellant that prohibiting all contact for three years was inappropriate and excessive. Further, the sheriff’s approach to the 1995 Act was incorrect in law, and he had erred in considering there was a need to protect the children from further harassment. The appellant was at a low risk of further offending and the children wished to have continuing contact with him.
Entitled to be considered
Delivering the opinion of the court, Lord Matthews said of the sheriff’s considerations: “We agree that the sheriff’s concerns about recognising the victimhood of the children and relieving them of the burden of making decisions about contact, were not themselves relevant considerations either in relation to the appropriateness test or the statutory question. The sheriff does not appear to have asked himself in terms whether the appropriateness threshold had been crossed.”
However, he continued: “We are satisfied that had the sheriff addressed the appropriateness test, he would have been bound to find in respect of each child that it had been passed. C himself was a victim. While no order was sought in respect of him under Section 234A and the charge in which he was named as a victim did not relate to a qualifying offence, the fact that he was a victim is a relevant consideration.”
On the relevance of both C and L witnessing part of the offending, Lord Matthews said: “It is fair to proceed on the basis that they were or would have been affected by it, at least in relation to charge (2). They were entitled to be considered for protection. When it came to the statutory question, the sheriff was not satisfied that he could give a negative answer.”
Addressing the appellant’s argument that the views of the children ought to have been obtained, he concluded: “The statute does not require that the views of those who might be protected by an order should be sought and we do not ourselves think it is necessary in any event. It only remains for us to point out that, if circumstances change, the order could be varied or revoked.”
For these reasons, the appeal was refused.