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Domestic Violence (Amendment) Bill, 2002 [ Seanad ] : Second Stage.

Wednesday, 18 December 2002

Dáil Éireann Debate
Vol. 559 No. 6

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Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Information on Willie O'Dea Zoom on Willie O'Dea I move: “That the Bill be now read a Second Time.”

The purpose of this Bill is to remedy a defect in the Domestic Violence Act, 1996, which resulted in the Supreme Court on 9 October declaring section 4(3) of the Act unconstitutional. In doing this, the Bill restores to our courts the power to make interim barring orders ex parte.Section 4(1) of the Domestic Violence Act, 1996, provides that the Circuit or District Court may, on the making of an application for a barring order, or between the making of such application and its determination, make an interim barring order if it is of the opinion that there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or any dependent person if the order is not made immediately, and the granting of a protection order would not be sufficient to protect the applicant or any dependent person.

Section 4(3) of the Act provides that where the court, in exceptional circumstances, considers it necessary or expedient in the interests of justice, an interim barring order may be made ex parte or notwithstanding the fact that the originating document or other notice of the application required to be duly served on the respondent to the application has not been so served. The words “ex parte”signify that the order has been made in the absence of, and without notice to, the other party. Section 4(4) provides that an interim barring order shall cease to have effect on the determination by the court of the application for the barring order.

On 9 October last, the Supreme Court, in a case which arose out of the granting of an ex parte interim barring order which was in effect for almost three months, held that the provisions of section 4 as they relate to ex parte interim barring orders, in failing to prescribe a fixed period of relatively short duration during which such an order would continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram partem –that the other side should be heard – in a manner and to an extent which is disproportionate, unreasonable and unnecessary. The court declared section 4(3) unconstitutional and said that it had not been demonstrated that the remedy of an interim order granted on an ex parte basis would be in some sense seriously weakened if the interim order thus obtained were to be of limited duration only, thus requiring the applicant, at the earliest practicable opportunity, to satisfy the court in the presence of the opposing party that the order was properly granted and should now be continued in force.

It is important to note that the Supreme Court said that it was beyond dispute that the Legislature was entitled to abridge the rights of individual citizens, such as a person's right to be heard in proceedings taken against them, to deal with the social evil of domestic violence. However, the manner in which the abridgement of the right is effected has to be proportionate. As is clearly indicated by the Supreme Court, when such an order is made, there must be an early return date on which the applicant must show in proceedings, of which the respondent has notice, that the continuation of the interim order is justified in accordance with the statutory criteria.

The Supreme Court's decision did not surprise me. When the Domestic Violence Bill was being debated in the House in July 1995, I expressed concerns about how it dealt with ex parte interim barring orders. I said at the time that we must look carefully at the restrictions on the general application of the power being given to the courts as it is a serious matter for someone to be removed from his or her family home without having the right to speak in his or her defence. This is exactly the point emphasised by the Supreme Court in its recent judgment.

On the provisions of the Bill, section 1 is the substantive provision which substitutes a new subsection (3) for the existing section 4(3). Paragraph (a) of the proposed subsection has three features worthy of comment. These are: first, the provision that an interim order may be made ex parte; second, the replacement of the phrase “in [1433]exceptional cases” in section 4(3) with a reference to “the circumstances of the particular case”; and, third, the stipulation that an interim order may be made ex parte“where the court considers this necessary or expedient in the interests of justice”.

Section 4(3), in its present form and prior to the Supreme Court decision, permitted the making of an interim barring order ex parte or notwithstanding the fact that the originating document or other notice of the application required to be served on the respondent to the barring order application had not been so served. This was a reference not to notice of the application for the interim order but to notice of the application for the full barring order. I have been informed that, in the vast majority of cases, interim barring orders were issued where notice of the barring order application had yet to be served on the respondent. Even where this notice had been served, it would be rare for the respondent to be aware that, in addition to a full barring order, an interim barring order was also being sought against him or her.

The approach taken in the Bill is to dispense with reference to notice of the barring order application and provide simply that where, having regard to the circumstances of the particular case, the court considers it necessary or expedient in the interests of justice, an interim barring order can be granted ex parte; that is, in the absence of and without notice to the respondent. Where the court decides it is neither necessary nor expedient in the interests of justice to make the order ex parte, it can require notice to be served on the respondent of the application for the interim order. Paragraph (b) of section 1 makes a largely similar amendment to section 5(4) of the Act dealing with protection orders. I will refer to that matter later.

The second point about the proposed new subsection (3)(a) relates to the phrase, “having regard to the circumstances of the particular case.” The Supreme Court noted that section 4(3), as it stands, provides for the making of interim barring orders ex parte in “exceptional cases”, but contains no indication of the criteria by which the court is to decide whether a case is exceptional. The merit of the new wording is that it invites the court to assess the circumstances of the case before it. In that respect, it focuses on the individual case before the judge and does not require any determination that the case is exceptional, which would imply comparison with other cases.

As regards the phrase “necessary or expedient to do so in the interests of justice”, Deputies will note that this criterion is already in section 4(3). It also resembles section 17(3) of the Child Care Act, 1991, which was referred to with approval by the Supreme Court in the case to which I referred and which permits an interim care order in respect of a child to be made without notice to a parent where, having regard to the interests of [1434]justice or the welfare of the child, the judge so directs.

On the proposed paragraphs (b) and (c) of the new subsection (3), applications for interim barring orders, prior to the finding of unconstitutionality, were generally made on sworn information. However, they were often supported by oral evidence given by the applicant to the judge. I understand that while the sworn information was frequently made available to the respondent, practice differed from one judge to another and sometimes the information was not made available. The oral evidence, however, was not recorded in a note or otherwise nor was it communicated to the respondent.

This issue has been highlighted in a report of the Law Society law reform committee entitled, Domestic Violence: The Case For Reform, published in May 1999. This report proposed that court rules be amended to require that ex parte applications for a protection order or an interim barring order be made on affidavit and that the respondent automatically be provided with a note of all the evidence given at the hearing.

The effect of paragraphs (b) and (c) is that the application for an interim barring order must be made either on an affidavit or on sworn information and, where an interim order is made ex parte, a note of any evidence given must be made and served, together with the order and affidavit or sworn information, on the respondent as soon as practicable. In this way, the respondent will have full information on what has been alleged against him or her and the basis of which he or she has been barred from the family home.

Paragraph (c) provides that the note of the oral evidence shall be prepared by the judge, the applicant or the applicant's solicitor and approved by the judge or as otherwise directed by the judge. In the case of applicants for an ex parte interim barring order in the District Court, which represents the majority of cases, it would be unusual for such persons to be accompanied by a solicitor and they may not be fully in a position to make an adequate note of their evidence.

To ensure such cases are catered for, the judge may make the note or he or she may direct that it be done in some other way, for example, by obtaining the services of a stenographer.

Paragraph (d) of the proposed new subsection (3) addresses the main point in the Supreme Court's judgment. The court held that the provisions of section 4, as they relate to ex parte interim barring orders, in failing to prescribe a fixed period of relatively short duration during which such an order would continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which is disproportionate, unreasonable and unnecessary. Paragraph (d) provides that the ex parte order shall have effect for not more than eight working days unless, on application by the applicant for the barring order and on notice to the respon[1435]dent, the order is confirmed within that period by order of the court.

The report of the Courts Service for 2001 indicates that, while the average length of time from the date of issue of the summons to the date of hearing of barring and safety order applications was 12 weeks, barring order applications where an interim barring order had been made were dealt with within two to three weeks. So the District Court had been giving priority already to cases in which an interim order had been made and judges were generally conscious of the need to set early return dates where they had made such orders.

Proposed paragraph (e) provides that the ex parte interim barring order shall contain a statement of the effect of paragraph (d), i.e. the duration of the order and the possibility of its being confirmed as provided for in the paragraph. A working day, for the purpose of paragraph (d), is defined in paragraph (f) as a day other than a Saturday, Sunday, or a public holiday within the meaning of the Organisation of Working Time Act, 1997.

If the interim order is confirmed, it will continue in effect until the application for the barring order itself is determined, as provided for in section 5(4) of the 1996 Act.

Paragraph (b) of section 1 of the Bill provides that a new subsection (4) is to be substituted for section 5(4) of the 1996 Act. This provides that a protection order may be made ex parte. Section 5(4), as it stands, provides that a protection order may be made “notwithstanding the fact that the originating document or other notice of the application required to be duly served on the respondent to the application for a safety order or a barring order has not been so served”. As I have already explained in relation to section 4(3), this is a reference to the notice of the application for the final order – in this case a barring order or a safety order – not to any application for the interim relief. The proposed amendment to section 5(4) changes this by simply providing that a protection order may be made ex parte, that is in the absence of and without notice to the respondent.

Section 2 contains a standard provision for the Short Title and collective citation.

This Bill represents the first significant amendment to the Domestic Violence Act, 1996, an Act which itself radically amended our previous law on the subject. That Act came into operation in March 1996 and it provided expanded remedies to victims of domestic violence. Based on the experience of its operation, there have been a number of recommendations for change to what are perceived to be deficiencies in the Act. In particular, there have been reports from Women's Aid and the Law Society's law reform committee – I have already referred to the latter report. [1436]There is also a commentary on the Law Society's report by AMEN, an organisation that speaks in defence of men who have been respondents in domestic violence cases.

I will now outline some of the proposals, which have come from various sources. Eligibility criteria for orders under the Domestic Violence Act, 1996 should be extended to include a person with a child in common. The residence requirement for eligibility for a barring order in the case of unmarried cohabitees should be reduced from its present level which is six months out of the previous nine. The residence requirement should be removed for cohabitees seeking a safety order and for cohabitees with sole ownership or tenancy rights in the home seeking a barring order. Provisions should be introduced permitting parents or elderly relations to apply for protective orders against abusive relations or persons other than an adult child. Such provisions should include safety or barring orders against such relations or persons residing in the home and safety orders against those residing elsewhere.

There should be a category of associated persons who would be entitled to apply for a safety order and a non-exhaustive list of such persons should be provided. Also, associated persons with sole ownership or tenancy rights in the home should be entitled to apply for a barring order. There should be either detailed statutory guidance or a list of criteria to be considered by the courts in determining whether to grant protection orders.

The Minister, Deputy McDowell, intends to have these various recommendations further examined in consultation with interested parties and, to the extent that reform seems warranted, his intention would be to introduce the necessary amendments as part of a family law reform Bill which he would aim to bring forward in about a year's time.

This Bill represents a proportionate response to the situation where an interim barring order has to be obtained urgently to save a vulnerable person who is faced with an immediate risk of significant harm to himself or herself, or a depenant. I commend the Bill to the House.

Mr. Deasy: Information on John Deasy Zoom on John Deasy I will be brief. This Bill should be passed today so that it can be enacted before Christmas for obvious reasons. The Bill restores the power to the courts to make ex parte interim barring orders. The legislation allows for an interim barring order that is granted ex parte to lapse not more than eight days from the day it is made unless it is continued by a court, which has given the respondent an opportunity to be heard. Where such an order is made, a note of evidence must be given to the person barred.

With others, my colleague, Senator Terry, made the point that there were many groups in the country involved in this debate in the past two [1437]or three weeks. Many of them felt there should have been a wider debate on domestic violence and the issues that surround barring orders. It is a sad indictment of the way society is going that it is necessary to pass this Bill before Christmas. There should be a wider debate and we should invite AMEN and Women's Aid to participate. We have talked about this for a long time, but the topic has not been debated adequately with women's and men's groups.

One statistic stands out for me. Four out of every ten Irish women, who have had a sexual relationship, have experienced domestic violence. That is pretty startling and gives an indication of how widespread this issue is. Like the Minister, I am not surprised at the decision of the Supreme Court. I do not think many people were surprised. However, it has put the victims of domestic violence at renewed risk. At the moment, the courts can only provide a safety order or a protection order, which is not enough. At present a man or woman can wait for months before a violent partner can be barred, which necessitates this legislation.

At one point it was said of domestic violence that it was a monologue, meaning that it was focused on violence against women. Now it has become a dialogue and is a debate that centres on not just women, but also men. John Waters should be given credit for that. Almost single-handedly he has raised the debate nationally over violence that is perpetrated against men in this country. I am sure not many people know that one third of sexual assaults in this country are perpetrated against men.

There are some issues not covered in this legislation that need to be addressed quickly. One of those is the lack of help for victims of violent partners. A study in the UK discovered that only one in 20 victims actually report the crime committed against them. I imagine it is similar in this country. In many cases people do not understand or believe they cannot afford to deal with the legal system. They feel intimidated by the system and that has to change. In many cases that is why these crimes are not reported.

On a general theme, one of the biggest issues facing the country is the break up of the traditional family unit. This is having a deep effect on our society in terms of crime and in many other respects. The Minister and I are both from urban areas, although Waterford is the smaller of the two. When one visits a secondary school in Limerick or Waterford, it becomes very noticeable that many of the children are from one parent families. While many lone parents are doing a tremendous job bringing up their children, unfortunately, a large number of one parent families lack a role model. I have been told by social workers that some such families are terribly dysfunctional for this reason.

It is incumbent on us to begin to allocate [1438]resources to domestic violence issues, which we have, to date, failed to do. We need to evaluate the break up of the family unit here. Although some pilot programmes on domestic violence have been done very successfully, they are badly under funded. In many cases the schemes have helped participants and prevented the break up of families. The Government needs to address the problem of family breakdown and its serious consequences.

I lived in Washington DC for seven years. I remember taking a trip with one of the local homicide captains in the middle of the summer. It was at the height of the 1990-93 period when the city was known as “Murder, USA” because it had the highest number of murders per capita in the country. The captain told me we had a very good chance of coming upon a homicide. At about 3 a.m., we did. Afterwards, I asked him what was going on in the city, to which he pointedly replied that most of the kids in question, mainly juveniles aged between 14 years and 25 years, had never known their fathers and, similarly, the generation of men before them had never known their fathers. The family unit had broken down. Although we have not reached that stage yet, domestic violence here is not given sufficient priority and funds are not being allocated to existing pilot programmes, which should be expanded.

We need to try to keep families together at all costs. Domestic violence programmes and schemes have been successful, but have lacked funding. We cannot accept domestic violence as an inevitable, but unfortunate facet of life. Our tendency to do this is allowing tremendous damage to be done to society. Intervention and prevention programmes would ameliorate the problem. We should also provide more money for refuges, many of which are so short of funds they must turn away significant numbers of people, which one estimate I have seen put at 66% of those seeking assistance. This issue needs to be addressed.

I support the Bill. It is an indictment of society that we are taking it just days before Christmas, a period which we acknowledge gives rise to widespread domestic violence as people get together.

Mr. Costello: Information on Joe Costello Zoom on Joe Costello I welcome the Minister and the legislation, which my party will support. It was inevitable, as the Minister indicated, that a case would be taken before the courts because of the manner in which ex parte applications were being made and the delays in hearing cases in full. It comes back to the question of resources. If there had been full hearings of ex parte applications, it is very unlikely a constitutional case would have been taken as the matter would have been dealt with expeditiously and there would have been a full hearing. As such, it is improbable the respon[1439]dent would have been so dissatisfied as to take a case to court.

We should also remember that the Supreme Court did not find against ex parte orders per se, but against the mechanisms used. The Bill is in tune with the constitutional findings in that it makes provision for ex parte findings where a sufficiently important and serious emergency arises. The problem, therefore, was with the manner in which applications were being handled, the lack of resources available to the courts and the rather lackadaisical approach by which information or notes were not made available to the respondent, who was not informed in all cases. One also had the problem of full cases dragging on.

I hope we will get a commitment to provide resources in support of the legislation. I am appalled by the last sentence in the explanatory memorandum which states that no necessary financial implications are envisaged, despite the acknowledgement that the legislation will give rise to additional court hearings. One cannot introduce legislation on such a basis. The resources available are insufficient to expedite the cases which come before the courts, either on an ex parte or permanent basis. To introduce further legislation and claim it will have no financial implications is ludicrous. I am concerned we will again find ourselves without the necessary resources and the legislation will, as a result, fall into disrepute.

I am also unhappy that we are debating the legislation at this late date. I understand it could have been taken on 9 October, which would have allowed us to consider the context in which it has been framed. There is no sense in rushing legislation through the House. I am concerned we do not have a repeat of the passage of the previous legislation which passed without First Stage, Second Stage, Committee Stage or Final Stage debates. This was, I understand, the first time this happened in the House. This debate is not much better in that we have little more than an hour to debate all Stages and there will not be an opportunity to put the proposals in their proper, broad societal context or consider amendments, either by subtraction or addition. It is wrong to use the imminent end of the session as a pretext for taking a guillotine approach.

As the title of the Bill states, the background to the legislation is very serious and has grave implications for society. Domestic violence is widespread. We, as public representatives, are probably more aware than most because we are in constant contact with people who have been abused, physically and emotionally, in the home and elsewhere. Domestic violence is often a hidden crime. The Garda Commissioner, who appeared before a committee yesterday, said he was a great believer in CCTV on the streets and that he has examined some of the footage from [1440]city centre locations and was appalled at the degree of violence one citizen can perpetrate on another in a public place. What may be done in the family home or in an intimate situation may be very sour indeed. During celebrations or festive seasons such as Christmas there seems to be a substantial increase in domestic violence. That leads us to the degree of alcohol consumed in this country and the limited steps we have taken to deal with it even though we speak about it regularly.

There is no doubt that we need to deal with this substantial problem which often spills over into the courts as emergency action is required. Before I look at the legislation I wish to refer to statistics on the nature and extent of violence against women which I am sure have been supplied to all Members by Women's Aid. I would have thought the Minister of State would have put such statistics on the record as a background to the legislation. In 2000, Women's Aid – one organisation – supported 10,000 women in need of support. In 1999, three refuges accommodated 609 women and 1,451 children but we must remember there are 32 refuges in the country.

In 1999, gardaí were called out more than 10,000 times to incidents of domestic violence of which 92% were against women. In 2001, 4,470 barring orders were applied for, while 2,067 were granted. In the same year, 2,903 safety orders were applied for, while 1,232 were granted. Some 8,243 calls were made to the Dublin Rape Crisis Centre between July 1999 and June 2000. Four out of ten women involved in a sexual relationship with a man have experienced violence. The Rotunda Maternity Hospital found that in a sample of 400 pregnant women, 12.5% had experienced abuse while pregnant. That is a fairly horrific picture of violence in the home presented by one organisation. There are other organisations, including those representing men who have been subjected to violence, which could give us statistics that would add considerably to what I have stated.

This amending legislation is appropriate in that it remedies a defect in the Domestic Violence Act, 1996, whereby it was deemed unconstitutional to grant barring orders as they operated under that legislation. What is the Minister of State's interpretation of the eight working days? Is it eight working days as set out in section 1(f) which states “days other than Saturdays, Sundays or public holidays”? How does it operate if the courts are in recess? Does it mean the working days of the courts or of the ordinary citizen?

Section 1(c) states “If an interim barring order is made ex parte – (i) a note of evidence given by the applicant shall be prepared forthwith-”. Does that also apply to an application for a barring order? The taking of a note of evidence should be automatic once the applicant is brought before the court. It would be proper to have the [1441]facilities in place and to have best practice. A proper note of evidence should be taken in all cases, irrespective of the success or otherwise of the barring order.

The victims of violence must be paramount and this legislation at least ensures temporary relief for them. However, what will be done in the long-term? What support and relief will be provided by the State? The State has been lackadaisical in providing support mechanisms and relief to victims of violence, whether generally or, more particularly, in the home. It has been left almost exclusively to voluntary organisations to fund raise and make applications to the State for grants, funds and premises. The State has not taken the initiative in this matter. Although the situation in respect of domestic violence has been deteriorating, as the statistics show, the State's responsibility has not increased in a meaningful fashion, resources have not been provided and structures and mechanisms have not been put in place.

The Minister of State said the Minister, Deputy McDowell, intends to look at some of the broader issues and to introduce an amendment as part of a family law Bill. I fear future commitments. It is like the Minister closing down Shanganagh Castle, the only open prison for juveniles, and promising to build a replacement some time in the future.

Commitments are not adhered to always. The commitment is not included in the programme and I wonder whether the Minister of State could provide a more substantial commitment than the statement at the end of his contribution that there would be a wider level of consultation whereby all the organisations involved in this area could be brought together. They could be brought before the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights, for example, or the Minister to make a presentation.

Many recommendations are being implemented in this area in a broader context. We support this necessary legislation, which is welcome. We would like to see the day when adequate resources will be provided to implement this legislation, the original Bill and the other proposals so that more comprehensive legislation can be introduced.

Dr. Cowley: Information on Jerry Cowley Zoom on Jerry Cowley I wish to share time with Deputies Cuffe and Ó Snodaigh.

An Ceann Comhairle: Information on Séamus Pattison Zoom on Séamus Pattison Is that agreed? Agreed.

Dr. Cowley: Information on Jerry Cowley Zoom on Jerry Cowley I welcome the Bill because it is short and sweet and is clear in what it seeks to do, which is to remedy a defect that rendered section 4(3) of the original Act unconstitutional and to restore power to grant interim barring orders ex parte. It is a good day for democracy when we do something that makes a real differ[1442]ence to people. The people affected by this legislation are in need of our help.

As a general practitioner, I have seen the effects of domestic violence and, as someone who has studied law, I am aware of the deficiencies in the legal system. Like the “Late Late Show”, the Bill contains something for everyone in the audience. In cases of domestic violence if the court considers that only a barring order will suffice to compel the alleged perpetrator to leave the family home, it can provide for such on an interim ex parte basis where there is thought to be an immediate threat to the person seeking protection or to dependent children.

The new wording gives more discretion to the courts to grant such orders than the more narrow phrase “in exceptional circumstances.” With regard to the implementation of the order when the full hearing is many months away, if the excluded member of the family is out of the picture for that time, that could have a detrimental effect on his or her chances in decisions relating to custody of children and so on given that courts favour stable relationships.

Everyone involved in the caring professions knows that alcohol and Christmas are synonymous with domestic violence and I can vouch for that having worked as a GP for 23 years and in the accident and emergency departments of hospitals. Some people hate Christmas, and children, in particular, dread the foreboding that comes with hearing a key in the door because they are reminded of unpleasant experiences. The answer to alcohol-related violence lies in the banning of alcohol advertising as well as in the provisions of this legislation. Shakespeare said alcohol increases desire but decreases performance. However, it affects mental as well as physical performance. The higher centres of the brain are dampened resulting in violence.

Legislation is only part of the equation. The increase in the number of refuge centres for women brings home the increase in domestic violence cases and women nowadays are not prepared to put up with what their peers did in the past. They will walk out but it takes on average seven attempts before a victim of domestic violence eventually leaves the home. That illustrates the hell on earth these women and men experience.

Domestic violence is not confined to Ireland and it is all-pervasive as it does not heed the urban-rural divide or social classes. That does not matter a hoot. Children are scarred mentally and physically. Domestic violence is no less shocking than other types of violence. It is often worse because it occurs in relationships based on trust and the victims expect to have sanctuary in their own homes but instead they are not protected.

On average six women are murdered in Ireland annually and in a high proportion of cases where a spouse or partner is killed, there is a history of violence against the woman in the relationship. That is chilling and it is also chilling that the common thread in these cases is the pattern of coerc[1443]ive control among those who abuse. This can involve destruction of property, isolation from friends, family and other supports, stalking, control over access to money, food, transport and telephones, sexual coercion, assault, rape and so on.

In an important US study a total of 57% of male partners who had been married were found to be violent to another partner. This raises the question of whether there should be a register of such abusers but I do not know where it would fit because it would be so big. An analysis of Garda criminal record files found that domestic violence offenders who were found guilty were previously heavily criminalised. This population of offenders should be noted.

The most recent study of domestic violence in Ireland, as reported in The Irish Times on 1 February, indicated that almost four in every ten women attending their GP had experienced domestic violence. Men are also affected and we need to highlight the controlling behaviour involved and take steps to attenuate it so that it does not lead to violence. If it was highlighted, perhaps it would not be socially acceptable. We live in a violent society and aggressive behaviour is wrong. However, it must be seen to be such. It begins with bullying in the classroom and continues up the line, and children need to be told that such behaviour is not right. With various super powers fighting each other in movies, how can our children learn?

Mr. Cuffe: Information on Ciaran Cuffe Zoom on Ciaran Cuffe I welcome the Bill. Although it is a quick-fix solution, it is necessary given the season that is in it. Measures are needed to help the victims and their families who will, sadly, be exploited and abused over the festive period. This is a good Bill but there will be a number of teething problems, but amendments could be made. Overall it is a positive step in dealing with the court action taken last month.

It is important to recognise and applaud the fantastic work of voluntary organisations in this area, ranging from national bodies to women's refuges on the ground. I visited a refuge recently and the steel doors on the front of the building bore witness to the horrific circumstances in which women, in particular, often find themselves. They must regularly find a way out of such circumstances at a moment's notice. While barring orders are an imperfect tool, they are necessary to protect people from domestic violence and to that end they are welcome.

I concur with Deputy Cowley's reference to the link between alcohol and violence. Given that alcohol advertising levels increase significantly at this time of year, a ban on such advertising must be considered because they perpetuate the myth that alcohol does nothing but good. When the chairman of the National Safety Council saw an alcohol advertisement with the word “Believe” in it, he stated that many people would die as a result of drink driving over the festive period. [1444]Many more will be victims of violence in the home as a side effect of alcohol consumption and that must be addressed separately.

Regarding the eight day period in the Bill, concerns have been expressed by Women's Aid, among others, that people may find themselves in limbo after one eight day period ends while waiting for another to commence. The Minister of State should clarify this. However, there is also a concern that we may see an infinite number of eight day periods with the order continuing for a long period before a full hearing is held. I would welcome clarification on this point also. A specific date for a hearing on the full barring order should be clear as soon as possible.

I compliment the Minister and welcome the haste with which he has acted on this matter. The legislation could do with amending and the Labour Party has put down some simple amendments. Subject to some clarification on the eight day period my party supports the Bill.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh Zoom on Aengus O Snodaigh The day the Supreme Court unanimously ruled that interim barring orders were unconstitutional my constituency office received numerous calls. They were all from women, though that is not always the case in this area. The women felt very vulnerable because of the collapse of their interim barring orders and in many cases their ex-partners took advantage of the confusion to terrorise them further. When one considers the statistics they were right to be fearful, as 76% of women who are separated from abusive partners suffer post-separation violence. Women's Aid also states that in the resolved cases of women murdered in their homes, 82% of the women were killed by men they knew. Women are at the greatest risk of homicide at the point of separation or when leaving a violent partner.

Constitutionally valid interim barring orders could save lives and I am glad we are debating this Bill. I have been pushing for this since the Supreme Court judgment and I am eager we get the legislation right and that it is fully constitutional. I acknowledge that domestic violence is not perpetrated exclusively by male partners against female partners, nor is it exclusive to heterosexual partnerships. The reality of domestic violence in our society is that partners abuse partners, parents and other relatives abuse children and grown children sometimes abuse their elderly parents. Children on the receiving end of such violence often become abusers themselves in the future, perpetuating the cycle of abuse. These tragic circumstances are all around us and anyone holding an advice clinic or the like can recite the details of numerous cases. The fact that there are so many refuges around the country reveals the existence of these tragic situations. The Bill is not enough to tackle the entire problem but it is another step forward.

We must acknowledge there is domestic violence against women and that it is reaching epidemic proportions. The statistics are harrowing: [1445]one quarter of all violent crimes reported involve a man assaulting a wife or partner and on average a woman will be assaulted by a partner 35 times before reporting it to the police. We want the Government to ensure that the resources are made available in order that the legislation can work as intended. I therefore raise my concerns about recent budget cuts when it comes to implementing the Bill. The delays the Supreme Court found unreasonable are not in the interests of either the applicant or respondent in such cases and we know a contributory factor in creating the unreasonable delay in the first case was the under resourcing of our district courts. This applies to barring orders, child custody and access applications but the problem does not stop there. Low income applicants and respondents currently face great difficulties in accessing legal representation and the waiting lists are far too long, yet the Government cut the legal aid grant for next year in the budget.

There is an urgent need for new legislation to make interim barring orders constitutionally compliant and I welcome this debate. I have put down a Committee Stage amendment which I will address at that point but I welcome the Bill. I hope those who usually suffer at Christmas do not suffer this year.

Minister of State at the Department of the Taoiseach (Ms Hanafin): Information on Mary Hanafin Zoom on Mary Hanafin This is a crucially important issue for many women. In many ways it is ironic that at Christmas, when we are thinking of celebrating, many people will be the victims of violence as a result of the tension, alcohol and pressure that goes with this time of year. Our responsibility is to ensure the provisions are there to protect these people and to make sure that wherever they need the protection of the law, over Christmas and beyond, they will have it.

It would have been nice to spend longer debating the finer points of the Bill but we do not have that luxury if we want to ensure that those protections are in place. The void that was created since the Supreme Court decision of 9 October has been highlighted already. If the current law on interim barring orders is unconstitutional it is our responsibility and duty to fill that void and to return to the courts the right to grant barring orders ex parte. It is a sad topic but we recognise that interim barring orders are vital to protect the safety, and often the lives, of people when it comes to domestic violence. It is sad when one realises it takes a long time for someone to seek an interim barring order and to have to say they have been a victim for a long time, suffering repeated acts of violence, physical injuries and psychological taunting. Unfortunately, that is compounded by court delays and a lack of refuge places. We must ensure these people do not have to wait for a full court hearing in order to get the extra legal protection they need.

It is a very brave decision for a woman to seek a barring order against a partner which is only reached after long consideration. Calling the [1446]gardaí to remove a partner from the home is a brave and difficult decision. We are all aware of instances in which the gardaí have broken into a house where they have heard sounds of domestic violence. One garda told me he entered a house to find a man with a knife at his wife's throat only for her to say it was not a domestic violence incident and to deny it. Denial is part of the process.

If one gets to the stage where a woman will take the step of going to court to seek a barring order, then we must put a process in place to protect her. Such women have suffered fear, intimidation and violence and unfortunately will do so after the barring order has been issued. They know as much and the statistics bear this out. The court must make a decision quickly and decide whether a protection order is enough; if it is not an interim barring order has to be put in place.

Domestic violence means the stronger person can intimidate the weaker into remaining in a destructive relationship. Deputy Ó Snodaigh has already quoted figures from the Women's Aid report which said that people had been beaten up 35 times before they reported it. From previous work with children I know they are suffering not just by being the victims of a physical assault but by being present when domestic violence is taking place. It is equally important that the process is fair and is seen to be fair. We all accept that an accused has the right to hear the case being made against him and should have the opportunity to defend themselves. Any restriction of that principle would have to be justified and would have to be proportionate.

I accept and understand the judgment of the Supreme Court that the lack of a time limit on interim barring orders when they were granted ex parte was disproportionate, unreasonable and unnecessary. Both parties in a case must be given consideration because there were cases of men who came home in the evening and found they had no home to get in to and did not know if they were ever going to get back in. Justice must apply to everybody. If the barring order was not being dealt with for several months by the court then that was equally wrong.

The increase in barring orders over the last number of years is a terrible indictment of society. Dr. Cowley mentioned the link with alcohol. Like most issues of a social nature which we examine in this House there is a wider social impact and there is no one reason as the cause. In 1996 there were 170 barring orders granted and 1,159 were granted in 1999. That is a huge increase but it is also a huge increase in the number of brave women who have taken the step. When I read these figures I wonder if there is more domestic violence or is it just that people are admitting that it exists. Much of it is probably the latter, with people willing to talk about what is happening behind closed doors. I acknowledge that there will be questions about the time of eight days but it is a fair and a balanced way of trying to deal with the issue and of giving the [1447]respondent the right to present their case in court.

I have attended events organised by Women's Aid and I attended the launch of the report earlier this year. We should never cease to be shocked by the statistics. People do not usually give information of a personal nature in surveys and they are doing society a great service by imparting this information. We must constantly focus on this area because of the effect it has on families and on women and their children. The perpetrators are usually partners or ex-partners, people who are known to the women concerned. We must work to help women build up self confidence so that they can recognise what is acceptable behaviour.

I have met children who have been the victims of domestic violence. Their lives are ruined by fear and their emotions are torn. They fear for their own safety and for the life of their mother in many cases. They are torn between which side to take. The Barnardos campaign shows a child terrified by what is happening in the home and between their own parents. The children are learning to suppress their own fears and feelings and it is only in later years that a lot of this can come out. They believe that living in fear is a normal feeling. We know then that as they go through life, having experienced violence and conflict as a normal part of life, many – perhaps 50% – risk becoming a victim or a perpetrator of domestic violence. Too often we forget about the child in the case; we think of the child when the child is the direct victim of a physical assault but we do not think of the emotional consequences for them.

I launched the national children's strategy two years ago. One of its key aims was that children should be safeguarded to enjoy their childhood free from all forms of abuse and exploitation. That takes a lot of work with families. We saw evidence during the week of how counselling and mediation work in the context of marriage and families. I commend and praise from a height those organisations and voluntary groups who work daily with women and families to ensure that they are safe in their homes. We should all strive to protect children and to protect them from their families. That is our job as legislators. Today is just one step on that road. We can put supports in place and this Bill will put a legal support in place at a very opportune time for victims.

I have met men's groups who tell me that they too are increasingly becoming the victims of domestic violence and we should not ignore that fact. The vast majority of people who look for barring orders are women. It is a wider social problem which should be examined. Christmas can be a difficult time for a lot of people. My message to women who are the victims of domestic violence is to seek support and to tell somebody. The help is there, the Garda and the organisations and refuges will support them, and they do not have to remain a victim in their own home.

[1448]Mr. Neville: Information on Dan Neville Zoom on Dan Neville There is no doubt that it was necessary to deal with the situation which arose in October. It was necessary to ensure the safety of women in the home. The Minister of State may be correct in saying that it may be an increase in the level of reporting rather than an increase in incidents but I suspect that there is an increase in the level of violence in the home. The Minister of State drew attention to the plight of children. The discussion of domestic issues often concentrates on parents and the children are often only referred to in passing. We should examine how society deals with children.

I wish to speak about the role of parents in a changing society where possibly one in four children are born to single mothers. We must legislate for the role of the father in a changing society. The State does not facilitate single or separated fathers to fulfil their role, obligations and responsibilities as a parent. Single parents as of right – when I say single parents I mean mothers and fathers, single and separated – have an entitlement to a relationship with their children. The presumption in law is that single fathers do not have a right and must seek agreement to obtain that right.

As it stands the law facilitates the rights of the mother to the access and rearing of children. It hinders the role of the single father in carrying out his rights and obligations. Custody or guardianship cannot be arranged without first being agreed with the mother. The State does not encourage or facilitate a single father to establish guardianship or joint guardianship without the mother's agreement. As it stands, the law discriminates against single parents in the children's relationship with their father, and single fathers have an inferior status in the eyes of the law and in society in general.

We should conduct an examination of the role of the father in a changing society. It is important that children have the knowledge and the influence of both parents and an acquaintance and friendship with both parents' families. A child has a right to the knowledge and friendship of both parents and the State should uphold that right.

While we agree that progress has been made in recognising children who are born outside marriage, even going back to the abolition of the concept of illegitimacy, nonetheless we must continue to recognise that families are now very different than they were in the past. We continue to promote this principle that parentage is, in effect, solely tied up with marriage, particularly in the case of the father. We are not recognising the needs of the child or children who are born to a single mother and we are not relating to the realities of life today.

Traditionally the father had enormous control in families and the mother, in effect, was dependent on the father. This is long changed to very good effect, and it was a very necessary change, but we have now almost turned the principle on its head whereby in certain circumstances fathers are now dependent on mothers for access to a [1449]relationship with their children. It is not acceptable that it is solely within the gift of the mother to grant guardianship to the father of her child. A single mother can agree or disagree that the unmarried father be a guardian of the child, however the role of the father is not significantly or properly developed in the context of what is happening today. I am not happy that so many women are rearing children on their own where the fathers of those children are missing because they do not want to know their children or they have been prevented from knowing them. It is an issue which we must address.

It takes two people to have a baby and I believe it takes two people to rear a child. The responsibility and rights of fatherhood have not been addressed where the parents are single. We must include fathers in a way in which they are established as having rights and they are challenged to take responsibility for having a child. If we fail to do so, we are simply reinforcing a pattern which will not be good for society as a whole or for individuals who have the rights and responsibilities as parents, regardless of whether they are married.

Unless there are compelling reasons like domestic violence, with which the Minister is dealing today, it is in a child's best interests to know and have a relationship with both father and mother and the father should recognise the relationship and be involved in parenting of the child. The overriding consideration in any marriage breakdown seems to be the convenience of the parents rather than the best interests of the child.

We cannot overestimate the importance of the father figure in a child's life. There is a void where a father is not involved in the rearing of a child. Some 80% of primary school teachers are female and many children taught by female teachers do not have a father present in the family, therefore those children brought up by their mothers have no male influence or significant male figure in their lives. I cannot outline the consequences of this, but I believe it has serious consequences for the upbringing of children and for the future role of the male in society.

We must face the reality that while there are in excess of 2,500 children born to unmarried parents each year, less than 1,000 applications are made by unmarried fathers for guardianship of the children. We must examine seriously what is in our culture which determines that the majority of fathers of children born outside marriage do not have a relationship with their children. We must consider how we should cope with the position to ensure that children of unmarried parents have as stable a relationship as possible with both parents.

Society and the State must fully recognise that a family is automatically created when a child is born, regardless of whether the parents are in a relationship. Of course there will be exceptional circumstances such as those the Minister is dealing with here. Both parents have an obligation to take an active part in the upbringing of the chil[1450]dren and the law should facilitate this rather than oppose it as it does at present.

Children have an automatic right to access to the extended family of both parents and they have the right to have both parents' names on their birth certificate. They should have access to the family tree of both parents. How often, when you go to a doctor for an examination, will he or she ask about your family history or, for example, whether any member of either side of the family has, for example, a history of coronary disease? Every child should have a right to know the answer to that question and the State should facilitate that.

This is a two-sided issue. It has to do with the State granting the right to single fathers to be involved but also with placing responsibility on those fathers who walk away from their duties and responsibilities and ignore the rights of their child.

Mr. Andrews: Information on Barry Andrews Zoom on Barry Andrews A Cheann Comhairle, you were good enough to allow me to raise this matter on the Adjournment a couple of months ago after the Supreme Court judgment. I am not claiming responsibility for the drafting of the legislation, but I find it very gratifying that we have managed to close the gap created by that judgment. It is a little sad that we are concluding our work in the Oireachtas at Christmas time with legislation which is a sign of the times, a mark of society generally and of marital breakdown in particular. It is sad that we should be concluding our work on this issue, but nevertheless it is very important and I am pleased to see such widespread support for the issue.

One of the duties which will come with passing the legislation will be its implementation. Specifically the Government, and perhaps the media to a certain extent, have a duty to clarify the position for the public. As the House will be aware, there was some confusion arising out of the Supreme Court judgment where some people were of the view that all baring orders were deemed unconstitutional rather than just interim barring orders, and violent spouses were coming back to the family home in some cases. That confusion created a great deal of grief for groups like Women's Aid. I hope the Government, on passing this legislation, will do its best to publicise what we are doing here.

The Supreme Court judgment was designed to bring an end to the position where there were delays in dealing with barring orders, whereby the respondent would have an opportunity to give his view. In the case which led to the judgment there had been about three months of a delay between the interim barring order and the decision in the Supreme Court. It is amazing nobody ever brought a case in the time between 1996 and October 2002.

One of the issues raised by the Opposition is that this Bill is being brought through so quickly, but I think people can see that it must be passed before Christmas. On the one hand, the Govern[1451]ment is criticised for not introducing some legislation quickly enough and on the other, as in situations like this, it is criticised for expediting matters too quickly. The Opposition is trying to have it both ways, which is not politically acceptable.

On the legislation itself, there has been criticism of the dropping of the phrase “in exceptional circumstances”. There is a fair amount of protection in the Bill to ensure no fraudulent applications are made. I am particularly pleased about paragraphs (b) and (c) of the new subsection (3), which deals with sworn evidence. This is something which could be extended to other areas of the law because the obligation to swear an affidavit, the information upon which one makes one's application, can have a sobering effect on people who might abuse the situation.

The statistics were outlined by other Deputies and Senators yesterday. I think there were 1,000 interim barring orders issued in 2001, so this is a large area of the law that had been open to abuse. The dropping of those words allows the District Court, which is usually the forum for these applications, to deal with a case on its merits rather than carrying out some spurious comparative analysis exercise in different sets of cases. Finally, regarding the eight days stipulation, the Courts Service reports an average delay of 12 weeks between the issuance of interim barring orders and a full hearing. This is an appropriate answer to the problem, and I commend the Bill to the House.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Information on Willie O'Dea Zoom on Willie O'Dea I appreciate the wider philosophical debate but will stick to a few specific points made in relation to the Bill. I thank Deputies on all sides for their support. Deputy Deasy called for a wider debate, and I can assure him that the Minister for Justice, Equality and Law Reform is serious about bringing forward the proposals I mentioned in my Second Stage speech to amend family law in a number of respects. I can further assure him that any proposals for legislation in this area will be developed in consultation with bodies such as Women's Aid, AMEN and so on.

Deputy Deasy is also correct when he speaks of the need for support for victims of domestic violence. The Government is committed to the provision of such support, as evidenced by the fact that it has significantly increased the funding for service providers. The funding for refuges and rape crisis centres, for example, has increased from €3.8 million in 1997 to over €11.5 million in 2002. Of course that does not tell the full story of provision of local authority houses and flats and various other measures across different Departments. I agree, nevertheless, that more needs to be done.

Deputy Deasy also said that there should be a wider debate on this and that there should be a facility to bring in groups such as AMEN and [1452]Women's Aid. That facility is already there through the Committee on Justice, Equality, Defence and Women's Rights. My understanding is that it is quite possible to make arrangements to bring the appropriate groups before the committee and let them make submissions.

I take Deputy Costello's point about the explanatory memorandum. It is perhaps being overly-cautious when it says that there will not necessarily be financial implications. My personal view is that there will be financial implications because there will be more hearings and more pressure on the Courts Service. Regarding the Deputy's point about working days, a working day is defined as a day other than Saturday, Sunday or a public holiday within the meaning of the Organisation of Working Time Act, 1997. Public holidays under that Act are Christmas Day, St. Stephen's Day, St. Patrick's Day, Easter Monday, the first Mondays of May, June and August, the last Monday of October, the first day of January and, where relevant, the following weekday when the public holiday falls on a Saturday or Sunday.

The provision for eight working days gives greater flexibility to the courts than would be the case with eight days. For example, with eight working days, an ex parte order granted on Monday, 23 December next will expire on Monday, 6 January 2003. If the period were eight days, it would expire on 30 December and the court would have to sit on that day or earlier. While eight working days amounts to a longer period than eight days, our view, based upon the fact that it has been cleared by the Attorney General's office, is that it is not an excessive period or disproportionate abridgement of the respondent's rights having regard to the Constitution. In short, the Bill refers to working days in the lay person's sense, not in the technical legal sense.

Deputy Cuffe made an interesting point about the eight day period. The ex parte order will have effect for eight working days at most unless confirmed by the court on notice to the respondent. The court will summon the respondent to a hearing, which obviously has to take place within the eight working days, and decide whether the order is to continue. If it is confirmed, the order will last until the full barring order application is determined in accordance with section 4(4) of the 1996 Act. In reply to Deputy Cuffe, there will not be any definite series of eight day interim periods. That will not be a consequence of the legislation.

These were the main points raised in relation to the Bill itself. I reiterate my thanks to Deputies for their co-operation. As has been acknowledged, it is necessary to get this legislation on the Statute Book because, as a result of the Supreme Court decision, it is currently not possible to secure an interim barring order ex parte. Judging by the volume of applications for such orders, the legislation is necessary. These orders were found by the courts to be necessary in up to 1,000 cases in 2001, so it is a matter in regard to which we need to press on. I appreciate what Deputies are saying about not giving sufficient time to debate [1453]the wider issues and about the legislation being somewhat rushed. It is rushed out of necessity. I commend the Bill to the House.

Question put and agreed to.


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