An interdict seeks to prevent an individual from carrying out a specified action. A pursuer can seek an interdict to prevent any action which breaches their legal rights. Thus, one does not have to have committed an illegal act; it is enough to infringe the legal rights of the pursuer.

Under the Family Law (Scotland) Act 2006 a pursuer can apply to prohibit or restrict certain conduct by the defender towards themselves or any child in their permanent or temporary care. The pursuer can also apply to prohibit the defender from entering or remaining in certain places. The legislation states that a defender can be prohibited from entering or remaining in:

• a matrimonial or family home occupied by the pursuer and the defender;
• any other residence occupied by the pursuer;
• any place of work of the pursuer;
• any school attended by a child in the permanent or temporary care of the pursuer.

For example, whilst it may not be illegal for you to attend your child’s school it may be claimed that your behaviour amounts to harassment and infringes on the legal rights of the resident parent. The resident parent as the pursuer may apply for an interdict to prevent you entering and remaining within a certain distance of your child’s school. Due to this being a civil action there is no requirement for the pursuer to prove beyond reasonable doubt that you have been harassing them.

When a pursuer seeks an interdict it is common practice to combine the crave for interdict with a crave for interim interdict. An interim interdict can be granted as soon as the application is made. Hence, you may be prevented from coming within a certain distance of your child’s school before the ordinary court procedure has taken place.

An interim interdict lasts for one year and one day once served on the defender.

There are a number of different types of interdict. The court can be asked to attach a power for arrest to certain interdicts. The power of arrest can last for 3 years and be renewed as the court sees fits. The ability of the court to attach a power of arrest will be subject to the circumstances of the individual case.

Breaking an interdict can result in a fine or imprisonment. If the interdict specifies that you cannot come within a certain distance of your child’s school then you will be breaching the interdict if you carry out this action after the interim or final interdict has been served on you. You can lodge a caveat to warn you in advance if anyone applies for an interim interdict against you.

Last updated on April 18, 2012 by FNF Scotland