I welcome the Bill. The Workers' Party recognise that it is an important though small amendment to the whole armoury of the development of law for the protection of the family, spouses and children beleaguered by matrimonial strife and difficulties. However, I must pass a number of comments in the context of the Bill and of some perceptions abroad as to the possible effect of its provisions. Many commentators, and those concerned directly in the area of this law, are concerned that it will be seen abroad, particularly within judicial circles, as an endorsement of a trend by the Legislature of a view that the barring order has been somewhat too punitive or onerous a provision in dealing with matrimonial strife in the past. The Minister, in the opening speech delivered on his behalf, used the word "drastic" when referring to the issuing of a barring order. We want to emphasise clearly that if and whenever a barring order is made, drastic though it may be, it is in response to a very drastic and unhappy situation. The message must go out from the House that we have full confidence in the barring order procedure and in the competency of any of our courts to make such an order when the judge or justice thinks it proper. There is no doubt that the introduction of the judicial process of issuing a barring order for the protection of a beleaguered spouse or family has been an incredible safeguard and an important development in our law to protect vulnerable people.
Reference has been made to the fact that the Bill was a response to a promise made in the Fianna Fáil election manifesto issued last February. I am glad to see that some members of the Government remember that document and that some promises in it are seeing the light of day in legislative action. However, it will be of concern to me if the Bill will be the only response to the promise contained in the Fianna Fáil election manifesto. In time it may prove to be too small a proposal. There is no doubt that in dealing with the whole area of the protection of spouses, and the barring of spouses from the home in the case of strife we should seize the opportunity to expand, develop and improve the law. The Bill should be used to expand the areas of protection to spouses and the expulsion of bullying spouses from the home.
From statistics it appears that courts are developing in a retrograde way, that they are moving back from the original intention in the granting of a barring order when first introduced into our law in 1976. Statistics for the years 1983 to 1985 indicate that our courts are becoming more reluctant to act in issuing barring orders. It is said that that was immediately consequent on the ruling of the Supreme Court in the O'Bv. O'B case delivered in June 1983. It appears that the courts are taking a more narrow or more conservative stance on the issuing of barring orders. In 1983 in the Dublin metropolitan area 1,697 application were made for such orders and of that number 848 were granted. However, in 1985, after the O'B v. O'B ruling, 1,856 applications were made but only 516 were granted. That trend developed further in the following year, the last year for which we have full figures, when 1,927 applications were made and only 440 were granted.
It appears that upwards of 1,500 applications made by spouses who were in positions of difficulty and vulnerability were not either pursued because of the high onus of proof required or were not sympathetically entertained primarily because of the restrictive definition given by the courts in the wake of the O'B.v. O'B decision. I bow to the better views of Deputy Shatter and Senator Robinson that it was a misconstruction of the intention of the O'B. v. O'B. judgment, namely, that there would be need for proof of physical violence, or the threat of it, before a court should or would act in the issuing of a barring order. The intention in bringing in the Bill is not to endorse that narrow attitude and not to say that, recognising the restrictive nature of the grounds on which a barring order can be issued, there will be available in the alternative the issuing of a protection order of an interim, premanent or semi-permanent nature.
We need to re-establish our confirmation of the importance of the barring order as a necessary, though unfortunate, weapon in the campaign to put down bullying spouses in the matrimonial home. We should use the Bill to extend, as widely as possible, the application of the law in this area and there are a number of areas that we should consider widening. First, we should consider widening the grounds on which a barring order, or a protection order, can be made. It is important to re-establish the original conception of the 1976 legislation, that it should involve physical and mental injury or damage to the spouse or child. If nothing more we should use this opportunity to reaffirm the view of the House which is contrary to the perceived or misunderstood interpretation of the O'B judgment. Secondly, the scope for making orders against those persons should be extended. For example, we should not confine ourselves to the spouse definition. It is clear, particularly in the area of sexual abuse, that we are dealing with people who are not necessarily the spouse but often a brother, an uncle, or another person living on the premises. In my view it is desirable to make it possible to issue a barring order against persons living outside the marriage or who are cohabiting or sharing a dwelling.
The whole purpose and draft of the legislation is to protect, and the extent to which children and adults can be the victims of abuse or violence and threats of abuse or violence should be recognised, irrespective of whether the adults are married. I hope the Minister will consider extending beyond the definition of spouse the definition of persons who are entitled to seek order and against whom orders can be made.
Another important area in which the scope and concept of the availability of the barring order must be developed is to concerned agencies outside the marriage definition. It is clearly recognised that many spouses, particularly women, in some way beaten down, bullied, frightened or simply because of pride, were unprepared to seek aid. I concede that in many of the applications which were not granted these people had the initial courage or were desperate enough to seek the order, but they drew back at the last moment because of the fear of having to go into court to tell a stranger sitting on a bench the terrible turmoil they had to endure in the marriage. Where there is a concerned external organisation—such as a health board or a welfare officer— available who is aware of what is happening in the home, they should be entitled to bring proceedings on behalf of the beleaguered spouse to ensure the ejection from the home of the bully. I hope the Minister will consider the extension of this legislation in this regard.
I know these matters are not news to the Minister because they were raised in the debate in the Seanad and they will be raised here again at Committee Stage. I hope he will respond as magnanimously in this area as he has done over the past few weeks. The message must be underlined that the availability of the issuing of the protection order is not to be seen as a supplant of the barring procedure. There are a number of practical reasons for this. It is clearly recognised that it is much more difficult to prove the breach of a protection order than to prove the breach of a barring order. It is a fact that the errant respondent found in the garden or at the front door by the gardaí if and when called is clear proof, conclusive almost, of a breach of a barring order, but it is very difficult to prove that there has been a breach of a protection order particularly when the definition allows for the making of a threat or the presentation of violence rather than the administration of it.
This brings me to the difficult role the Garda have in the policing of these orders. It is clear that the Garda Síochána are pivotal to the proper implementation and application of the law in this area. In the case of a barring order, it is a very simple job when they arrive at the family home and find the errant respondent on the premises, but what happens when a protection order is in force? When the Garda arrive a blunt complaint is made that the errant respondent has done something which the wife considers to have been a breach of the protection order. In the face of a blank denial, when there is not extraneous evidence to suggest a breach of the protection order — such as a broken picture frame, banged door, spilled tea or the sign of a bruise or mark on the spouse — what is the garda's position? He is an invidious position. I know from practice it is a position they do not want to have to extend unnecessarily or unduly. This must be borne in mind when we are dealing with this legislation.
For example, in the area of assault, the directive issued to the Garda Síochána is that when called to the matrimonial home on complaint of an assault, the garda should not seek to arrest and remove the husband unless there is the sign of the infliction of a blow. Therefore, the officer is instructed to look for such things as reddening or bruising, torn clothing or something extraneous from the word of the injured party to suggest that there had been the commission of the crime of assault. That is probably the general working rule which is applied in regard to breach of protection orders. For that reason I join in the calls for the introduction of clear guidelines for members of the Garda Síochána so that they can act effectively in the undoubted increasing availability of protection orders in the future.
In regard to the specific provisions of the Bill, it is a very welcome fact that there is an onus laid on the courts which issue protection orders for an order to be sent as quickly as possible not only to the person who seeks it but also to the local Garda station so that there is on record available to the Garda up to date information of the orders in their locality or any alternations or abbreviations to them. That is a very welcome development under section 5. The provision in section 4 with regard to the oral notification of the respondent is a good development in the law and will be supported by us.
There are a number of matters to which I would like to refer briefly. It is strange that recent legislation has given us the opportunity to make comment on the very poor situation in which our civil legal aid offices find themselves. There is no other area of the law in which these offices are asked to concern themselves more urgently than in the protection of beleaguered and battered spouses. It is a fact that 90 per cent of the applications being brought before the court are initiated, unaided, at the behest of the victim because of the overworked legal aid offices and the lack of facilities and staff there. The beleagured battered spouse must make her own way to the District Court and there encounter at first hand the intricacies of this legislation. I know they are very well catered for and aided by the staff of these offices, but it is undesirable that they do not get advance advice, counselling and aid from the legal aid services. I hope the Minister in responding to his Government's manifesto in bringing in this legislation will recognise that a comprehensive, fully staffed legal aid service is the only way we can give effect to this Bill.
It is important to make the point that once we bar spouses from the home, for whatever good reason, it is incumbent on us to consider providing care and attention for those people. It is clear that many of them have personality disorders or problems, particularly alcoholism. Many of them are wandering the streets as a result of a barring order. They have nowhere to go and are in great need of counselling. I should like the Government to take that problem on board. Clearly, in trying to develop a uniformity of view and development of this whole area, there is a very urgent need for the establishment of family law courts. I know this is actively in the mind of the Government and I realise it will involve the commitment of resources but it is quite clear that the Government should, at the earliest possible opportunity, consider the establishment of these courts from the point of view of developing the quality and effectiveness of the service and ensuring the implementation of the legislation.
The Workers' Party welcome the Bill and we commend the Minister on its introduction. We particularly commend the Government because it appears they are responding to a lot of good counsel from very concerned organisations outside the House in this area. That is something which any Government should always be prepared to do, to listen to those in the field and to respond at the very earliest opportunity. There are, as I indicated, areas that immediately concern The Workers' Party which we will be addressing by amendment on Committee Stage and we look forward to a response of a positive nature from the Government.