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 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 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 respondent, 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. 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.