I move: "That the Bill be now read a Second Time."
The object of the Bill is, as the Long Title puts it, to make further provision for the protection of a spouse and any children whose safety or welfare requires it because of the conduct of the other spouse. It does this by making three important changes in the present law relating to barring orders. These orders exclude a spouse from the family home, usually because of violence.
Perhaps I should first indicate what the three changes are. Section 3 of the Bill will enable a spouse, while awaiting the outcome of an application for a barring order, to obtain an injunction-type order, called a protection order. Breach of this order, like breach of a barring order, will be a criminal offence. Second, section 7 provides a power of arrest without warrant for breach of either a barring order or protection order. Third, if a person charged with breach of such an order is given bail and then commits one or more such breaches while on bail, any sentences of imprisonment imposed under section 8 will have to be served consecutively.
Other provisions of the Bill deal with such matters as giving the courts greater flexibility in dealing with applications for barring orders and providing for expeditious hearings in barring order cases and other improvements that experience has shown to be necessary. I shall refer to these other provisions later on.
The barring order procedure was first provided by section 22 of the Family Law (Maintenance of Spouses and Children) Act, 1976, which was welcomed on all sides of the House as providing protection for spouses and children in cases of domestic violence. Since the passing of the 1976 Act, there has been an opportunity of reviewing its operation. I have received various representations, mainly from some women's organisations, that their experience suggested that the system needed strengthening. Initially, it was thought the problems might be solved by a more active involvement of the Garda Síochána in the issuing of summonses for breaches of barring orders, and instructions on those lines were issued to the Force by the Garda authorities. Unfortunately, while an improvement was achieved in this way, it has been found not to be enough and that is why we have this Bill now.
In the preparation of the Bill, there have been consultations with the President of the District Court and district justices with experience in this area: it is, of course, the District Court that handles the bulk of the barring order applications. The Garda authorities have also been consulted and account has been taken of recent developments in England and Scotland.
The proposals in the Bill have emerged as a result of this review. I think I can say that they take into account as far as reasonably possible the various helpful comments and suggestions made by the persons and bodies concerned. I think it better not to single out any particular group or individuals for special mention, but I am grateful to all of them.
I should now like to refer to the three main provisions I have mentioned, the first of them being the protection order. This is a new type of order provided for in section 3. It can be made in favour of a spouse who has applied for a barring order where the court is of opinion that the safety or welfare of the applicant or of any child of the family requires it. The protection order itself is an order in the nature of an interim injunction directing the other spouse not to use or threaten to use violence against the applicant spouse or a child, or molest them or put them in fear. The court may make an order at the time of the application for the barring order or at any time before the case is heard and whether or not the summons in relation to the application has been served on the other spouse. Once the application for the barring order is disposed of the protection order will cease to have effect but, if a barring order is made, it may contain a prohibition to the same effect as the protection order.
The point may be made that a protection order is no more than an order to observe the law or, rather, not to break it by using or threatening violence on the other partner. The answer is that it is a very solemn warning to the spouse concerned. It creates a situation where a breach of it constitutes a criminal offence and renders the offender liable to arrest without warrant and to heavy penalties.
The proposed protection order is a response — I think an effective response — to representations that a spouse who has been assaulted would remain at risk for some weeks until the court made a decision on the application for the barring order. Experience has shown that some form of protection, some form of court intervention, is often necessary at this stage, bearing in mind that an application for a barring order is usually made only when the spouse concerned has suffered violence over a fairly long period.
To grant an interim barring order in that situation would be open to most serious objection. It would, in fact, amount to an eviction order without notice. What the protection order will do is to direct the other spouse, as I have said, not to use or threaten to use violence or molest or put in fear. The existence of such an order, coupled with the criminal sanctions that will attach to it, should effectively deter violent spouses from committing further acts pending the hearing of the application for the barring order and will, perhaps, help to make some of them realise the seriousness of their conduct.
The second important change is the power of arrest without warrant being conferred on the Garda by section 7 for breach of either a barring order or a protection order. This provision has often been advocated as the cure for any shortcomings in the barring order procedure. I think that by now we can say that experience has shown it to be a necessary provision but it would not, by itself, be a solution. Indeed, without any other provision, it could make matters worse. For one thing, arrested people can normally get bail and might very well resort to violence again. The fact that they had been arrested might make them more prone to commit further acts of violence.
Accordingly, it was necessary to provide some deterrent against breaches of the others committed while on bail. One possibility was to provide an increased penalty for an offence committed by a spouse while released on bail. Another was to make a sentence for such an offence consecutive on any sentence for the original offence or, perhaps, to have both an increased penalty and consecutive sentences in these cases. Minimum penalties were ruled out as these are open to objection on a number of grounds. Of the two other options available, it was considered that a term of imprisonment substantially greater than the existing maximum term of six months would not be justified for breach of a barring order or protection order, even when committed while on bail, bearing in mind that if there is bodily harm a more serious charge — triable on indictment — may be brought and that that would be the correct course where the facts warranted it. The solution adopted in section 8, that is that any sentence of imprisonment for a breach committed while on bail will be consecutive, is, I believe, the right response to the needs of the situation.
Section 8(2) caters for the possibility that a spouse may commit more than one breach while on bail. It removes the limit of twelve months on the aggregate of consecutive sentences that may be imposed by the District Court. While I hope that the provisions of section 8 will not have to be invoked very often, if at all, I believe that their existence will be justified by the strong deterrent effect they will undoubtedly have.
I realise that there will be some concern at the extension of the power of arrest without warrant to a breach of an order given in what are basically civil proceedings. This applies also to the proposed mandatory imposition of consecutive sentences for offences committed on bail. I understand that concern, but in my considered view these provisions are essential to ensure respect for an compliance with barring orders and protection orders and the proper protection of spouses and children from domestic violence.
I should now like to menton some of the other provisions of the Bill. Two of them have been taken over from the Courts Bill which has now been passed by both Houses. The more important of them is, I think, that allowing the District Court to make barring orders for a period of up to 12 months, instead of up to three months, as at present. This provision has already been approved by this House and I do not think the House will want me to reopen the discussion. It is a very important power but then so also is the long-established power of the District Court to impose sentences of imprisonment of up to twelve months.
The other provision taken over from the Courts Bill transfers the existing High Court jurisdiction in relation to barring orders to the Circuit Court, as recommended by the Committee on Court Practice and Procedure. The transfer is effected by the definitions section (section 1) which defines "the Court" as the Circuit Court and District Court only. It will help applicants for barring orders to get speedy redress.
The Bill contains a number of ancillary provisions designed to improve the efficiency of the present procedures. For example, the courts are being given greater flexibility in dealing with applications for barring orders. Section 2 (2) provides that a barring order may be made subject to exceptions and conditions, such as those giving limited access for visits to the children in the family home or for paying a short visit for a particular purpose such as collecting personal possessions. This flexibility is particularly necessary having regard to the extension to twelve months of the maximum period for which a barring order may be made by the District Court. Again, it is being made clear by section 2 (6) that a spouse can get a barring order even though not residing in the family home because of the conduct of the other spouse. Moreover, section 12 ensures that proceedings must be taken in the circuit or district where the applicant spouse resides or where the family home is situate. Accordingly, a spouse who has had to leave the court district where the family home is situate can apply for the barring order in whatever district that spouse has gone to live after leaving the family home. At present the spouse can take proceedings in the new district only if ordinarily resident there, and ordinary residence might be difficult to establish for a spouse temporarily living in a refuge or with friends. In section 13 provision is made for making rules of court to enable barring order cases to be heard expeditiously and for dispensing with the statutory requirements for service of documents in such cases.
I think I should mention also the special provision made in section 4 regarding the taking effect of barring orders and protection orders. The fact that a power of arrest without warrant is being provided makes it essential that a person liable to be arrested should be aware of the existence of the order. In the case of barring orders, both parties will normally have been present at the hearing and no problem of notification will arise. Sometimes a barring order is granted in the absence of the offending spouse and, of course, this will almost invariably be the case on the grant of a protection order. Section 4, therefore, provides that a barring order or protection order will take effect when the spouse against whom it is directed is notified. It further provides that oral communication to that spouse by or on behalf of the applicant spouse of the fact that a barring order or a protection order has been made, together with production of a copy of the order, will be taken to be sufficient notification. Moreover, section 5 provides that the court shall cause a copy of the order to be given or sent as soon as practicable to both spouses and to the local Garda station but non-compliance is not to affect the validity of the order. These provisions are all designed to ensure that the powers of arrest will be invoked only when the spouse concerned has been made personally aware of the fact that the order has been made. A further safeguard is that the power of arrest may be exercised by the Garda only on a complaint by or on behalf of the applicant spouse. This is to cover the possibility of a reconciliation having been reached in the meantime.
Finally, as I am dealing with these ancillary provisions, I might mention that section 6, in addition to making breaches of barring orders and protection orders an offence, also makes it an offence for a spouse to refuse to permit the applicant spouse or a child to enter and remain in the family home or to do anything to prevent them entering and remaining there. This situation might arise where the spouse and child in question, after having had to leave the family home, would find, after a barring order had been made, that they could not enter it because the locks had been changed.
There is one further matter to which I would like to draw attention. It arises on section 14 (1) of the Bill, which provides that proceedings under the Bill shall be heard otherwise than in public. This provision corresponds to section 25 of the 1976 Act, which applies not only to proceedings for barring orders but also to maintenance proceedings. It has now come to notice that in some cases prosecutions for breaches of barring orders have also been heard in private and that there are differing views on whether the 1976 Act, when it speaks of proceedings under that Act being heard otherwise than in public, is referring only to proceedings relating to barring orders or maintenance orders or whether it applies to criminal proceedings for breach of barring orders as well. Clearly, I cannot say authoritatively or in any formal sense what the intention of the previous Government was in this regard but I understand from the information available in the Department that there is nothing to suggest that it was ever the intention to introduce such a radical change in the criminal law as would be involved in having criminal proceedings under that Act heard in private. Moreover, the Family Home Protection Act, passed later in 1976, although also creating a criminal offence, confines court hearings in private to civil proceedings under that Act to which both of the spouses are parties.
It is a fundamental principle that criminal cases against adults should be heard in open court. The only exceptions are cases affecting national security or public morality. The law does not make exceptions merely because of possible embarrassment to an accused person or a witness. I should make it clear, perhaps, that the matters which give rise to the making of the barring orders or protection orders in question should not ordinarily be relevant to the criminal proceedings for breach of the orders. The only issue of fact would be whether or not a breach had occurred, that is did the defendant enter the family home in breach of the barring order or, as the case may be, contravene the protection order by using or threatening violence? Incidentally, I also think that, quite independently of this issue of principle, the fact that criminal proceedings will be in public could itself act as a deterrent to a violent spouse. I propose, therefore, to move an amendment on Committee Stage which will make it clear that the only proceedings that are to be heard in private under the Bill will be those related to applications for making, varying or discharging barring orders or for making or discharging protection orders.
Because of the extreme complexity of human relationships and domestic situations, no legislation can be expected to deal satisfactorily with each individual case of domestic violence or discord. Nobody will pretend that the law can by anything more than a contribution to assisting in those cases which have become so serious that the safety or welfare of one of the spouses or of the children requires intervention by the court. I am fully aware that arrest can make reconciliation difficult or even impossible but I am assured by people with long experience in this field that a power of arrest will have real value, both as a deterrent and as a sanction, in many of the situations that now arise. The hard fact is that by the time a case gets as far as the court there will have been a history of marital discord and probably, to a greater or less extent, of violence. The court is there as a last resort and, when its jurisdiction is invoked, it has to apply the law. I know that the courts do not neglect any possibility of reconciliation and often help by adjourning cases or giving sympathetic advice or admonitions or a mixture of both. I am very conscious of the value of the marriage counselling being carried out by a number of voluntary agencies. They are making a tremendous contribution and I would like to acknowledge and pay tribute in this House to their work, but at the end of the day situations arise, here and in every country, where the sanction of the law, even of the criminal law, has to be invoked.
In conclusion, may I say that I hope the Bill will commend itself to Deputies on all sides of the House as a genuine improvement of the existing law, based on practical experience of its operation. I look forward to a constructive debate so that in this area of family law we shall continue to have legislation that is well up to — indeed in advance of — the best international standards in relation to the protection of spouses and children from domestic violence.