Amendments Nos. 1 and 7 are related and will be discussed together.
Family Law (Protection of Spouses and Children) Bill, 1981: Committee and Final Stages.
I move amendment No. 1:
In page 2, line 20, to delete "1974" and substitute "1976".
These are merely corrections to the collective citations of the Adoption Acts and the Landlord and Tenant Acts, respectively, referred to in sections 1 and 16 of the Bill.
Amendments Nos. 2, 4 and 6 are related and will be discussed together.
I move amendment No. 2:
In page 2, between lines 24 and 25, to insert the following:—
" `proceedings under this Act' means proceedings for the making, variation or discharge of a barring order, or for the making or discharge of a protection order, and any related proceedings by way of appeal or case stated;".
In the course of my speech on the Second Stage I referred to the provision in section 14 (1) which requires that proceedings under the Bill shall be heard otherwise than in public. As I mentioned then, this provision is intended to refer only to proceedings relating to barring orders and protection orders. There can be no question of allowing criminal proceedings taken for contraventions of barring orders or protection orders to be held in private. The object of these amendments is to put this matter beyond doubt.
Amendment No. 2 introduces a definition of "proceedings under this Act" which confines that term to proceedings for the making, variation of discharge of a barring order or for the making or discharge of a protection order and any subsequent appeal proceedings. It is only those proceedings that must be heard in private under section 14. Amendments Nos. 4 and 6 are consequential drafting amendments.
I move amendment No. 3:
In page 2, between lines 28 and 29, to insert the following:—
"(2) For the purposes of any provision of this Act providing for the variation or discharge of a barring order or for the discharge of a protection order, an order made by a court on appeal from another court shall be treated as if it had been made by that other court.".
The purpose of this amendment is to ensure that where, for example, a barring order is made by the High Court on appeal from a refusal by the Circuit Court to make such an order, then, in the event of either spouse subsequently seeking to have the order varied under section 2 (3) or discharged under section 11, the proceedings for such variation or discharge will be taken in the court to which the original application for the barring order was made, that is, the Circuit Court in this example.
This is in accordance with the provision of the Bill transferring to the Circuit Court and the District Court the existing jurisdiction of the High Court to make barring orders. It also follows the general policy of the Courts Bill, which was recently passed by both Houses, of conferring as wide a jurisdiction as possible on the lower courts in the interests of speedy and less costly litigation.
I move amendment No. 4:
In page 3, subsection (3), lines 10 and 11, to delete ", and any exceptions or conditions to which it was made subject,".
The general provisions of this legislation rely for their efficacy on the ability of a court to give either a protection or barring order. The Minister will know that the courts operate like schools, they tend to have longish holidays. I am not suggesting that judges somehow are inactive. But what happens when the courts are not in session, bearing in mind that this is a problem of great urgency? What is in these two sections to assure a woman that she can seek protection rending an application for a barring order if the application coincides with the period when the courts are not in session?
The Deputy said the courts have long holidays. The holidays in the District Court are one month in summer.
Longer than I get. Assuming the woman needs an interim order in the middle of the night——
A protection order under section 3 solves the problem the Deputy is worried about. Any justice can give a protection order, which is in the nature of an interim injunction, to provide protection until such time as the application for the barring order could be dealt with.
That is not what the section appears to do. The section refers to an application to the court, not to somebody going to the home of a justice in the middle of the night. The words "the court is of opinion" imply that the woman must apply to the court.
There are courts for special circumstances. For instance, if a capital crime is committed a special court could be convened urgently and it has never been known that a justice was not available. That would apply in this very serious area we are discussing. The court could be constituted by the presence of the justice, the garda and court officers. Later the court could reconvene and deal with the hearing of a barring order application. I appreciate the Deputy's concern, but in the knowledge that special courts can be constituted for such crimes as murder, we should have not any difficulties.
Perhaps there may not be a problem, but the Minister is being vague and confusing. He now introduces the new concept of a special court, by which I presume he means a court set up specially by some agency or other when the normal court would not be available. Will protection be afforded by going to a justice in the same way as one would obtain an interim injunction in the court, or does it have to be a court sitting?
It has to be a court sitting. A justice has to be available.
That is not the same as a court sitting.
There could not be a court without a justice.
There could be a justice without a court.
There could be a special court during holiday time. It will be found that the requirements of the law will be met, and they have been met, by special courts. These applications for protection would be serious matters. There is not any doubt in my mind that this is unambiguous.
The hearing of a barring order is a court procedure which would take some time and which is not available immediately. Therefore the Bill provides for a protection order as an interim arrangement, but this interim arrangement has to be obtained by a court appearance. I do not honestly believe the Minister is serious when he says that a woman could have the protection she needs from a court cobbled together in the middle of the night.
The Deputy is going far into fantasy.
A justice is not synonimous with a court. You could have a judge without a court. Any member of the public is entitled to seek an injunction, and an interim injunction can be had without normal court procedure. However, a protection order is not available without court procedure of some kind. That is the weakness I am talking about. A woman might need immediate protection. pending the presentation of both sides in a normal court hearing. There would be long periods of the year, depending on the level of the court, and long periods of a day when a protection order cannot be made available to a woman who might need it. I do not want the Minister to fudge the line between a court and a judge. If a court is necessary, let us be clear about it.
There has not been any denial of that.
There is no arrangement available that I can see, barring a special court, whereby a woman can get a protection order. It is possible to haul a judge out of bed, whatever the mechanics of that are, but is that realistic when a simple order of some kind by a responsible authority should be enough to give protection to a woman who needs it until such time as there is a possibility of a further hearing?
That letter of the law, as far as I am concerned means in many cases it is needed, particularly at night when, as Deputy Desmond rightly pointed out, the question of alcohol and sexual problems arise. At a time like that it is essential to have such a facility available. It is not available because the courts are not in session. A woman will have to ask for a special court to deal with the problem. That is what the section says. That is a major weakness in it.
That is incorrect.
Would the Minister please explain it to me?
The Deputy is presuming that the District Court, which is a very informal place, in so far as its constitution is concerned, needs officers, policemen and all the regalia. That is what the Deputy sees the court to mean in this context. That is not so. A District Justice — his clerk is not even required—can sit at some appointed place, either of his own or the woman's choosing, and hear her application informally and privately. I do not think that should conjure up in Deputy Keating's mind the enormous task of finding burly policemen, social workers, doctors and so on from different parts of an area and getting them all together at some unearthly hour of the night for the purpose of dealing with a personal matter relating to a woman at risk. The Deputy should not misrepresent it.
The Minister has not answered the central question. Is there any difference between a District Justice at home in bed being called to deal with an application for a protection order and the court hearing that is necessary in relation to sections 2 and 3?
The justice may have the court in his own room.
The place is not the problem. The problem is whether or not he is acting on his own, without anybody else in attendance, apart from the applicant. Does that constitute a court for the purposes of these two sections?
It is not a matter for the judge.
The most important person, apart from the District Justice, is the person who is making the application for the order.
The Minister is not answering the question.
I have answered the question. I do not intend to repeat myself. I went so far as to give the Deputy information which he should have known.
I am trying to ascertain what the word "court" means here because in section 1, already approved by the Minister, the definition of "court" means the Circuit Court or the District Court, not the special court or the justice acting in his pyjamas at 3 o'clock in the morning talking to the applicant. There is a clear conflict between what the Minister is saying and what is in the Act. Black is not white. How does the Minister explain the definition of the court in section 1? In section 1 the definition of court means Circuit Court and District Court. The Minister is now saying the definition of court in the Bill is something else.
No. I have explained it clearly. I am not going to repeat myself.
The Minister is being evasive——
Does the Deputy know what the District Court and Circuit Court means in so far as they are defined in the appropriate court Acts?
In this legislation they hold the same definition and meaning.
as far as I am concerned there is grave uncertainty.
There is uncertainty in the Deputy's mind, not in mine.
The Minister considers that a court is synonymous with the hearing by a judge on his own of an application from a woman, without any distinction being drawn between that and the normal interim injunction type application which would be right in those circumstances. If that is the case, why does the Act refer to court in sections 2 and 3? Why does it not refer to a justice? Why does it refer to court if the two are the same?
The court is the forum in which the justice sits.
In the Bill the court is the Circuit Court or the District Court. In no circumstances could the District Court be construed in as simplistic and casual a format as the Minister is now telling me is so. I have no doubt whatever but that I am right and the Minister is wrong.
If the Deputy has misrepresented me again, he may be right.
I have not misrepresented the Minister. An application to a judge called out of bed at three in the morning, sitting on his own for a protection order, is probably not — the Minister should be more certain of this than I am because he has professional advice available to him — able to be heard, simply because that is not a court unless a special court is summoned. it would need at least a process of summoning to do that. It might need the presence of other officers. At the very least it is clear that a court hearing cannot be construed and interpreted to be the hearing of an application in the same way as, for example, an application for an injunction is heard, by a judge on his own, not acting as a court. Once again we see how weak this so-called protection order is. Even as an interim arrangement the woman still has to go to a court.
I have a question on subsection 1. When I talked about the protection of children, the Minister asked a question about recent problems in the party. I know I am falling into his trap by remarking on it but our party has a clear policy on the issue. I presume the Minister was asked about abortion?
We cannot discuss abortion on this section. Has the Deputy any other question?
I asked the Minister on Second Stage where the protection of children was embodied in the Bill. He referred specifically to section 2 (1) — the court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any child so requires, and so on. Obviously the applicants is an adult. In the normal course of events the question of protection would be for a mother and perhaps her children. Does the Minister consider that there might be circumstances in which both the husband and wife were of mutually violent temperament and that it should be possible for the court to be able to consider the interest of the child, not only on the application of one or other parent, but on the application of some third party, including the child itself if he or she was old enough to apply. If the child felt that the brutality between the parents was such that it hurt him or her, could that child apply to the court for protection?
The child could not apply for a barring order. Having said that, let me add that a child has a lot of other remedies under the general law. For the purpose of section 2 we are referring to either spouse and a child or children.
This Bill is entitled the Family Law (Protection of Spouses and Children) Bill. By definition the protection of children has an inferior status because the child has no recourse——
That is not so.
Not in this Bill, although I accept that there is recourse under the criminal law. Under this Bill there is recourse only on the assumption that one of the parents represents the child.
The child or children are linked with one of the spouses for the purpose of the application. Is the Deputy suggesting that, for instance, a child of 13 years should have an independent right to obtain a barring order against his father or mother?
I do not know. I think there are circumstances where the child should be heard himself or where there should be an advocate to speak for the child in circumstances where there is brutality——
The criminal law provides adequate protection.
My point is that this Bill specifically states it is dealing with the protection of spouses and children and I am stating that children have not a independent right to seek protection.
It is in the context of family law protection. For the purposes of this Bill that includes one of the spouses and a child or children.
The Bill does not protect children where both spouses are violent to the children.
There are adequate criminal remedies for that.
My point is that the Bill is misnamed.
I am still not satisfied about the status of the court but I will not go over the matter again. I think we have agreed to differ on it. Subsection (2) states:
A protection order may be made notwithstanding that the summons in relation to the application for a barring order has not been served on the respondent spouse.
That appears to conflict with section 4 which states that the production of a copy of the order is essential. Perhaps we can deal with the matter on section 4.
Subsection (1) states:
A barring order or a protection order shall take effect on notification of its making being given to the respondent spouse.
Subsection (2) states:
Oral communication to the respondent 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, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification to the respondent spouse of the making of the order.
I suggest an amendment to delete all words after the word "made" in line 38. This would remove the need for the woman to produce a copy of the order. Let us take the example of the court we have mentioned, the court at 3 o'clock in the morning. Unless the district justice is exceptionally well organised he will not be able to get a copy of the court order at that hour. My understanding is that a court order is a specific legal document that issues in the normal way some time after the court hearing. In this connection I am referring to the protection order which is supposed to be the interim arrangement. It is likely there will be a lapse of time between the decision of the judge to grant the order and the actual issuing of such an order. I do not understand why it is important to include the reference to the woman being obliged to produce a copy of the order. The threat of violence could arise immediately after the court hearing and before the court order is in the woman's possession. On the other hand, she might merely have mislaid the order. The reality is that when the wife opens the door her husband will be there and the effect of the order should be to debar the man from coming into the home. To some extent we are blackening the reputation of many husbands because there are two sides to every story. The husband may be in need of as much help as his wife. If we are practical we will accept the point that the woman will not have the order in her hand when she goes to answer a knock on the door.
I have some difficulty in replying to the Deputy on the section because I do not know what he understands a protection order to mean.
I do not know if the Minister heard my suggestion to delete all words after the word "made" in line 38.
The Deputy is confusing a barring order with a protection order. Once it is made, a barring order does not allow the person to go back into his home. This is a protection order, which does not prevent the person from going back to his house.
I did not talk about access to the house.
I have to talk about it. Perhaps we are not hearing each other. I always find difficulty in knowing what Deputy Keating is saying. He goes off at tangents. He is doing that again now. I am trying to help him. I am trying to explain to him the difference between a barring order and a protection order.
How does that arise on section 4? We have gone past the definition section.
I am trying to be helpful to the Deputy. I am making the point that there is a major difference between the two. In the case of a protection order the husband can go back to his place of abode. The one thing the protection order prevents him from doing is threatening or subjecting his wife to any threat of violence. It does not have to be actual physical violence, but a mere threat. That might include his acting in a certain way or behaving in a certain way in his own home. That is the difference.
Subsection (2) says that oral communication to the respondent spouse by or on behalf of the applicant spouse of the fact that a barring order or a protection order had been made, together with production of a copy of the order, shall be taken to be sufficient notification to the respondent spouse of the making of the order. I am proposing the deletion of the words "together with production of a copy of the order".
There are circumstances in which the order might not be available to the woman who answers the door. I did not suggest that the husband had not got access. I referred to the threatened violence which the protection order is designed to stop. That order will not be effective unless the woman has a copy of the order in her hand and says to her husband: "I have obtained a protection order". She has to have it in her hand.
She is in a position to produce it.
That is not correct.
It does not say she has it in her hand.
How else would she produce it?
It could be on the table or on the mantlepiece when he walks in the door.
That is precisely my point.
She can take him over and say: "Have a look at it".
It will not be like that. The type of man we are dealing with — otherwise there is no need for it — will have a potentially violent character. What happens in the interim between the court hearing and the issuing of that order? She will not be able to produce it at that stage and therefore it will not be effective. What happens if the woman has got the order but has not got a copy readily to hand?
She cannot make it to the kitchen or the drawer?
What happens if she cannot remember where she put it? A court, whether it be a midnight court or another court, has adjudicated that she should have a protection order.
The courts we are talking about. They said: "You are entitled to a protection order and we will communicate this to the husband. Under the Act you are entitled to say to your husband that you have a protection order and the order is then effective provided you have a copy of it. "There could be circumstances in which a copy of the order was not to hand. I do not understand why the Minister is including "together with production of a copy of the order".
This is an order which can be applied for without the respondent, that is the other spouse, knowing about it. He does not have to know. He is the husband of X. If he comes back to his own home and an order has been obtained by his wife against him which prevents him from threatening her in any way, for the protection of herself and her children, would it not be fair that some type of documentary evidence from the body who granted or made the order should be available?
I do not deny that. I agree.
I should like to have a more perfect system, but this is the only one. Take the situation where the man who is not barred comes back to his own home. The order might be somewhere else. There could be a row at the front door before she gets possession of the protection order from wherever it is located. Because of the seriousness of the matter to the people involved, the husband and wife, the proofs must be there.
The words the Minister used are correct but they are not in the Bill. I repeat that husbands have rights in this matter. It would be wrong for us to obscure that fact. A husband affected by any such order should have made available to him at the earliest possible date copies of whatever orders we are talking about. I maintain that the protection order should not be invalidated merely because within a matter of minutes or hours of the husband appearing the order is not actually to hand. That is the point. A copy should be forwarded to him. He should be entitled to it either from the wife or somebody else. He should get it immediately. Indeed, he should be summoned to the court hearing.
He is entitled to that.
That comes up in the next section.
If by some chance nobody knows his address, or he has not given a correct address, or the court have not had time to send the order out in the post, and he turns up at the door, the protection order should not be invalidated merely because a copy of it is not to hand. It is not the bureaucracy of the matter which is important. It is the essential right or wrong as to whether the order should be made. If the order is worthy of being made, it should not be invalidated by the mere fact that a slip of paper is not available immediately the man comes to the door. The form of words in the Bill leaves it open to the interpretation that the order is invalidated if the woman is not able to produce a copy of it immediately.
That is one way only of ensuring that the husband's rights are honoured. They could be honoured in other ways. I should like to see the husband getting a copy of the order directly from the courts, or from his wife, or from anybody else at the earliest possible moment. The protection order should not be invalidated by the fact that he has not got a copy of it in his hand, or that it could not be produced to him immediately. It should be given to him, but the protection of the woman should not depend on whether or not a typist sends out a letter, or whether it was a Friday, a Saturday or a Sunday when the court was held. The section as drafted implies that if the copy of the order is not produced immediately it is invalidated.
The important thing is that once the order is granted it is made available to the woman. If she chances to meet him on the street and has not got it with her, it would be unreasonable to presume it would not be effective because she had to go back half a mile, or 200 yards, or ten miles to her home to show it to him there or elsewhere. One of our obligations — rightly so — in the interests of the husband is to ensure that he has sufficient notice of the order, as he is liable to arrest for contravention of it. It would be wrong if that liability to arrest existed without that person knowing that an application had been made and an order obtained against him.
Is the Minister satisfied that the mere non-production of it would not invalidate the protection? In other words, he will have to show that there was a deliberate concealment of the copy of the order?
The production of the order is required under the section.
Over what time span?
Within a reasonable time.
In the meantime does the woman have protection?
Section 4 states:
(4) An order varying a barring order shall take effect on notification of its making being given to the spouse.
Will the Minister elaborate on what is meant by the phrase "an order varying a barring order"?
If the circumstances change the conditions of the order as made in the first instance might, because of the change in circumstances, be varied.
I move amendment No. 5:
In page 3, subsection (1), line 51, after "or" to insert "on making or discharging".
This is a drafting amendment.
Subsections (1) and (2) state:
(1) The Court, on making, varying or discharging a barring order or a protection order, shall cause a copy of the order in question to be given or sent as soon as practicable to the applicant spouse, the respondent spouse and the member of the Garda Síochána in charge of the Garda Síochána station for the area in which is situate the place in relation to which the application for the barring order was made.
(2) Non-compliance with subsection (2) of this section shall not affect the validity of the order.
What would happen in circumstances where such an obligation was not honoured or fell through? I am worried about delays in the post or it being sent to the wrong Garda District. Is there any legal implication for the rights of the applicant in this case arising from the non-compliance with the obligation involved here?
Non-compliance will not invalidate the order, but the intention is that the applicant will be notified there and then, and the order will then be notified to the other people concerned, such as the Garda Síochána in the district involved. It would be wrong if the order was to be invalidated. In the circumstances of the making of a barring order, the respondent spouse would usually be aware of its making. I am sure he would be very interested in knowing the outcome of the case, as it would involve whether he could go into his own home or not.
I am worried about the situation where a fellow says he does not know anything about an order, had not heard anything about it and had not been given a copy of it. What would that mean? In natural justice, and in common sense, such a person would have to be given some credit for that. I suppose there is not any easy way out of it and we will have to wait to see how it operates.
The section states that the fine shall not exceed £200 and I should like to deal with that matter. Subsection (1) states that a respondent spouse who contravenes a barring order or a protection order, or, while a barring order is in force, refuses to permit the applicant spouse or any child to enter and remain in the place to which the order relates shall be liable on conviction to a fine, if my memory serves me right, when considering the Bill dealing with the courts the Minister agreed to a system or formula whereby there was provision for updating fines in accordance with economic indicators and various cost of living indices. Does the Minister intend that the fine in this case be varied by ministerial order?
Normally fines are not index-linked and changes are made by way of legislation. It is not proposed that the situation should be any different in this case. It is also important to mention that we can have a person breaking a barring order after it has been granted and being liable to a fine or imprisonment, or both.
Is it not reasonable to be able to vary the sum or penalty by ministerial order at regular intervals?
There is a general procedure for all fines and it has been established practice. I mentioned in connection with some other legislation that the decision on fines and penalties was a special area and the place for discussing it was in this House. To proceed outside the House in such an important area would not be right. It would be preferable to deal with those things here rather than by ministerial order or a process of index-linking. The established practice whereby such matters are dealt with here is the proper one.
It is not correct to say that fines are varied only by legislation. The Bill dealing with the courts allowed the Minister to vary the fines by ministerial order, and that was perfectly sensible. We do not want a person outside the House to make rules or laws by which we are bound, but the House is supposed to be a reflection of public values. All I am asking is that, instead of the inevitable years of delay before we have a Bill to increase or decrease fines or penalties in relation to a specific piece of legislation, the matter be dealt with by ministerial order. It would have been right for the Minister to seek power to vary that in the context of economic criteria and perhaps with some safeguards, because he could not vary it more often than once every two or three years. The House does not wish to discuss whether the £200 that he is going to impose in 1981 should be £583 in 1986. That is not what we are here for, that is a matter of accountancy. To talk about the House needing to debate that is not acceptable. It is a question of not cluttering up the Statute Book with irrelevant legislation which does no more than take into account present day values.
The second point strikes at the heart of the fining system generally. For many people £200 is a lot of money while for others it is very little. I hold the view strongly that we should take into account not just economic values but also the ability of people to pay, because the alternative is imprisonment. I can think of people for whom £200 would not cost a thought to write a cheque and I can think of other unfortunate people for whom it would mean a lot of saving and scrimping and they may not have it. If fines are to be just they should not merely be related to prevailing economic indicators across a wide area so that value of the punishment, so to speak, in 1981 is the same in 1986, 1996 and so on, but also the ability of people to pay those fines should be taken into account. From that point of view the fine could be moderated or even increased so that you would get a sensitive and sensible yardstick based on a notion of the value of the sanction, which it is, and taking into account individual circumstances. Then we will not need to come running back here to change every time values change. The truth is that £200 would not be a deterrent to many people and certainly not in five years' time with inflation going as it is. I can see that in ten years' time we will still have a fine about which the Garda will say, as they have said in other respects, that it is so much of a joke that it is costing more to collect it than it is worth. Then the whole point of the fine is lost. We should face up to these issues.
I welcome this very important section, which introduces a concept which a number of us have been asking for for a long time and which, introduced in other areas, will deal with a major problem. Let us be clear that we are approving that, and I quote from the section:
(1) Where a person charged with an offence under section 6 of this Act is released on bail and commits an offence under that section while so released, any sentences of imprisonment passed on that person for offences under that section shall be consecutive.
We have heard much about the law on bail and we are not going to go into it today but, because this section is specifically about offences committed on bail and because it is phrased as it is, providing for consecutive sentencing, it shows at last we are beginning to understand the real root of the problem. The problem is not that people are on bail. The problem is that crimes committed on bail have been treated more leniently than the normal crime by the virtue of the inability of the court effectively to give consecutive sentences because of the maximum jurisdiction of the District Court. Therefore, the best time to commit a crime for a criminal was while on bail, simply because the offences were taken into account or lumped together and sentences taken concurrently. I am pleased, therefore, that it is now clear that someone who commits an offence while on bail for another offence, assuming he is convicted of the first offence, will find that the full rigour of the law applies and he will serve another sentence for the second crime. It is interesting too, that that is mandatory under this section. The section says:
...passed on that person for offences under that section shall be consecutive.
— not "may be consecutive". It should not go without comment that this is a significant innovation. It is just, in so far as imprisonment can be the answer to these problems. It is appropriate that the person on bail should not be treated differently from other persons. It is no mystery to any of us why people commit crimes while on bail. A person with criminal propensities will commit crime when free until rehabilitated, reformed or whatever the expression might be. This, plus one or two other measures, is the answer to these problems, and the other measures can be talked about at the appropriate time.
This will have a sobering effect on people. It is a very significant part of the answer to the problem of crime committed on bail generally. For that reason I welcome it. Not alone is it just in itself, it means also that stronger measures which would not be in the best interests of our society need not be seen as the only option. In this section we have a very large part of the answer. That, plus speeding up of trials and one or two other issues, would deal with this problem which has raised its head recently. We should not let section 8 (1) go without comment.
I have one query. I want to know if the adjudication of the second offence, that is the charging of a person with an offence committed while on bail, will be a formal charge, or does whether the person was guilty of the first crime have a bearing on it? Let us assume that a person on bail is found to be innocent, will the crime committed while on bail still have the full rigour of the law?
Yes, in so far as it would be a crime committed while on bail, it would be heard at the same time as the first offence and the penalty would be imposed at the same time, which then would run consecutively. I want to thank Deputy Keating for recognising the merit of this section. The provision is of significance because it anticipates a type of general provision that may be in a future Bill——
——to deter persons who commit offences while on bail by imposing increased sanctions on them for such offences. These sanctions could be either by way of increasing the maximum penalty or provision, as is here, for consecutive sentences. Various possibilities were examined—for example, increased penalties for breaches committed while on bail or to make sentences for such offences consecutive on any sentence for the original offence, or a combination of both. It was considered that a term of imprisonment significantly greater than the existing maximum term of six months for breach of a barring order would not be justified for a breach committed while on bail, having regard to the fact that the assault causing actual bodily harm or grievous bodily harm can be prosecuted separately under the general criminal law and is subject to severe penalties. The conclusion reached was that the consecutive sentence approach was the better way of making people aware of the seriousness of breaches of barring orders committed while on bail as well as the seriousness of repeated flouting of the court orders. I recognise the Deputy's concern in this area and I thank him for it.
Section 9 (1) states:
Section 9 (2) of the Family Home Protection Act, 1976 (which restricts the right of a spouse to dispose of or remove household chattels pending the determination of matrimonial proceedings) shall apply between the making of an application for a barring order and its determination....
Does it also apply in the case of the making of an application for a protection order? Presumably it does.
I understand both are the same.
Does the Minister think it needs to be spelled out?
No. The protection order application is automatic once you apply for a barring order.
I am talking about section 9 of the Family Home Protection Act applying during the interim period. Presumably the whole purpose of this is that people cannot go in and move the furniture.
That is right.
It is clear that under this Bill that is not going to happen during the operation of a barring order. Is that right?
From the moment the application is made.
For the barring order.
Is it the point that that would supersede the time to which the protection order was issued? One makes an application for the barring order and the protection order at the same time and the protection order is issued immediately.
Yes. The protection order puts a stay on everything.
I must say that I would have preferred to include the words "protection order" to make it consistent with what the Minister said earlier on, because there is a doubt there if a protection order is issued first and a barring order second.
There is no doubt.
If the Minister is satisfied, I will let it go.
I move amendment No. 6:
In page 5, line 6, to delete "vested in the Court by this Act" and insert "of the court in respect of proceedings under this Act".
Most of us, I am sure, are reluctant to accept making court proceedings secret. Could the Minister elaborate slightly on how precisely the hearings of proceedings under this Act would be handled from that point of view? Who would be entitled to be there and who would not be entitled to be there?
Nobody but the parties and their advisers would be entitled to be there.
And, presumably, officers of the court.
I am anxious about the wording in this section. It seems very vague. It provides that the costs of any proceedings under this Act shall be at the discretion of the court. It might have a slightly intimidatory effect on somebody who wants to seek such an order. Most people who go before the courts have never seen the Acts under which they apply for orders such as this. They might feel that, although they win the order, they might have to pay the costs.
That is not necessarily so. If the application by a wife does not succeed, it does not necessarily mean that she would be liable for the costs.
Could the court rule that the cost of procedures, which would include legal aid——
It would be a matter for the Legal Aid Board to decide the entitlement of the applicant.
Does the court have any kind of discretion in situations where parties do not have the ability to pay the costs?
It is very difficult to put a measure on discretion.
But the intention here is that one of the parties will obviously pay?
Who else might pay?
If the situation warranted it, there are a number of options.
Would the Minister just give me one, apart from the two parties? Who else might pay?
Either party could pay or the court could require one of the parties to pay, not necessarily the successful party.
What other party?
The civil Legal Aid Board.
But the Minister said that was a matter for the parties. What I am trying to find out is: where there is a big bill at the end of it and neither party has the money to pay, what happens?
In that situation the court has a discretion to break it in two. The use of the word "discretion" leaves a wide range of options open.
I wonder if the court will have a fund or something. I suppose Joe Soap pays in the end. I am a little unhappy about the wording.
The wording is as in section 26 of the 1976 Act.
That is the one we are amending. The reason we are here is because it did not work.
I move amendment No. 7:
In page 5, subsection (1), lines 26 and 27, to delete "1931 to 1978" and substitute "1967 to 1980".
I consider it to be a bit of a misnomer.