I welcome the Bill before the House which is designed to implement certain changes in family law that are of some importance. Currently a wife who is at risk of violence when she seeks a barring order in the courts may find she cannot establish to a judge's satisfaction that the allegations she is making against her husband are true. The judge does not regard the evidence presented as sufficient to warrant making a barring order and there is no intermediate remedy the courts can provide for her protection. This measure is designed to allow the courts to make a protection order as an alternative to a barring order when a wife seeks a barring order. To that extent the Bill is welcome. The protection order has been a mechanism available to the courts as an interim remedy. When a wife seeks a barring order pending the hearing of the barring proceedings, in an emergency the District Court and the Circuit Court have been able to grant protection orders but they have not at the conclusion of the proceedings had the option to make a protection order instead of simply a District Court or Circuit Court barring order.
However, there is a concern about this Bill which needs to be voiced and put on the record of this House. Instead of assisting some wives as it is designed to do, the Bill could create difficulties. We have a problem in the area of family law which I have referred to on many occasions in this House, and particularly in matrimonial law. Currently the District Court, the Circuit Court and the High Court have varied jurisdictions in the area of family law. It is possible at present for a wife to seek a barring order in the District Court, Circuit Court or High Court and in each of the court's systems different judges are hearing different family law cases. The difficulty is a complete lack of uniformity of approach not only between the different courts but in the courts themselves, in deciding, for example, whether to make a barring order as matters stand under existing law and as they will be under the new Bill. The court can make such an order if it is of the opinion that there are reasonable grounds for believing that the safety or welfare of a spouse or of any child requires that an order be made.
Different judges have different views of what behaviour is sufficiently grave to warrant the making of a barring order. Some judges will regard behaviour as tolerable and bearable by a wife that other judges regard as intolerable and unbearable. A wife who is the victim of serious physical violence will generally get the benefit of a barring order. However, a wife whose husband's behaviour is placing her under severe mental stress, placing her and the family at serious risk, making it impossible for a normal family life to be conducted and possibly posing a long-term threat to the psychological well-being of children, but which falls short of violence can find that the courts are not willing to investigate the effect his behaviour is having on her and the children and so do not provide her with the type of protection she needs.
Some judges are of the view that unless there is serious violence a barring order should never be made. Family circumstances of an appalling nature can arise when marriages break down, which I and many who work in the area of marriage breakdown believe can place at serious risk the welfare of the wife and children, but judges currently are loath to grant barring orders under such circumstances. The introduction of the protection order mechanism has the merit that where there are family difficulties but it is not warranted that the barring order be made, it allows the courts to provide some degree of legal protection for a wife at risk. The worry is that judges who simply do not like to grant barring orders no matter what the family circumstances may when they have the power to make a long term protection order, instead of making barring orders nearly always resort to making protection orders. The wife who has been the victim of serious violence, for example, might find a judge giving a very violent husband another chance in the home, leaving her living in the family home in fear of further violent attack at the hands of her husband. There is a need, which this legislation fulfils, to allow the courts to make a permanent protection order where a wife requires some protection but where the evidence before the court is not sufficient to warrant the making of a barring order.
However, in cases today where the courts regard themselves as having sufficient evidence to make barring orders, upon the enactment of this Bill some judges may still give a violent husband, a second, third or fourth chance by making a protection order. There is a need to get the balance right. I am not saying that in the event of marriage breakdown a husband or wife should always be barred from the family home, but where there is a serious threat to the safety or welfare of a wife or children, whether posed by violent conduct by a husband or by other types of conduct, it is necessary that the powers to make a barring order be used by our courts.
I have been talking about the barring of a husband. About 97 per cent of barring order applications are made by wives seeking protection from the violent behaviour of husbands, but in about 3 per cent of instances barring orders are sought by husbands seeking protection against the violent behaviour of wives. Our Judiciary tend to take it for granted that wives are generally the victims of violence and it can be extremely difficult for a husband who is a victim of violence and is being battered by his wife to convince a judge that this is actually happening. It can be extremely difficult for a husband in those circumstances to succeed in getting a barring order. I am aware of individual cases where husbands have fled the home, taking the children with them, in circumstances where a wife subjected to violence would have stayed at home and got a barring order. I am aware of such instances occurring across the mainstream of Irish society, from medical practitioners to corporation workers. In seeking to provide for a uniformity of approach on the part of the courts there is a need for our judges to be open-minded to the possibility that in a minority of cases the husband is the subject of physical violence.
This measure will in theory provide for equal treatment for husbands and wives in the obtaining of barring or protection orders. This problem of lack of uniformity will never be resolved until such time as we have a unified and coherent family court structure. This is another piece of legislation which will involve both the District Court and the Circuit Court, which will have concurrent and overlapping jurisdiction. Different judges will be dealing with family matters at different court levels all bringing to bear their own subjective views and prejudices on the decision-making process. Until we have uniformity of approach within our courts there will always be some wives at risk of violence who will not get the protections to which they are entitled. This will apply to some husbands also.
People who seek assistance from the courts when marriages break down will be subject to a system of judicial roulette. If they strike lucky they may get the right judge who has a real understanding of the nature of the problems upon which he is adjudicating, but if they are unlucky they will get the wrong judge who has no real insight into these problems. This is a particular problem in the context of protection and barring orders. It is a particularly subjective judicial exercise to decide whether a protection order or a barring order should be granted. It has been made a great deal more difficult by a judgment of the Supreme Court which has been wrongly interpreted by some members of the Judiciary as meaning that barring orders should never be made unless there has been an instance of violence. These are problems we must be aware of in this area.
The mechanism to provide for the making of barring orders first came about with the enactment of the Family Law (Maintenance of Spouses and Children) Act, 1976. There is no doubt that barring orders have provided a very helpful and effective remedy by providing real protection against the violence imposed by a husband. Nevertheless there are other problems. The 1981 Act, which this Bill seeks to amend, extended powers to the Garda to arrest without warrant a husband who has broken a barring order or protection order. Women's Aid, the organisation which has for many years provided a safe house for wives who are the victims of violence, have recently produced an excellent report detailing the difficulties suffered by a number of women who sought refuge in the hostel as a result of their husbands' violence. They also detail in the report some of the steps necessary to ensure that adequate protections are provided and that the barring order system can work effectively.
In circumstances where a barring order has been made excluding a husband from a family home and he attempts to break the barring order by entering the home and assaulting his wife, the report indicates that the extent of the protection provided by barring orders in these circumstances is very often dependent on the efficiency of the gardaí in the local area where the wife is residing. It can be dependent on the interest of the local inspector or superintendent in ensuring that his own gardaí are organised to respond effectively and provide help for wives at risk of violence. The report of Women's Aid has suggested that there should be a code of Garda conduct regarding intervention by gardaí to provide protection for wives at risk of violence, particularly those wives who have already been afforded the protection of the courts by the making of a barring order.
There is a need for the new Garda Commissioner to circulate official instructions to all Garda stations setting out a uniform code of practice to which all members of the Garda should adhere in the context of the enforcement of barring orders. This is to ensure that the protections we seek to provide in this House are truly available on a uniform basis throughout the State. It is not sufficient that the Judiciary apply the law uniformly; it is important that it is enforced uniformly. The protection which can be afforded by the arrest without warrant of a spouse in breach of a barring order can be placed at serious risk by the failure of the Garda to respond. The ability of the Garda to respond in such cases is dependent on the interest the local inspector or superintendent may show in this area and his concern to ensure that wives at risk of violence are properly protected. It is as basic as that. The ultimate responsibility may rest on the shoulders of the local station sergeant to ensure that barring orders are effective.
There are a number of reasons for calling for a code of conduct to be issued by the Garda Commissioner, setting out the procedures to be followed by the Garda in implementing the sections of the current Act and of the new Act dealing with barring orders. First, it will draw to the attention of those in a command position in the various Garda districts the responsibility in regard to this. There is not always a very clear view as to what are their responsibilities. Secondly, it will impress upon the individual members of the Force what their own obligations are with regard to providing assistance for wives who have obtained barring orders in certain circumstances where their husbands are breaking such orders.
However, there is a need for another reason. There is no section of Irish society which is immune from the sadness of marital breakdown. Equally, there is no section of Irish society which is immune from the tragedy and the horror of domestic violence. The occurrence of domestic violence and vicious assaults on wives is not confined to any particular strata here. Lawyers beat up their wives, doctors beat up their wives and, occasionally, politicians beat up their wives. County councillors, corporation dustmen and busmen beat up their wives. In my experience in every part of Irish society there are some people who are either the victims or casualties of broken marriages or who are the perpetrators of violence within marriage. The Garda are not immune from that. There are members of the Force who have been barred by our courts for engaging in violence against their spouses. I am aware of instances where that has occurred and those of us who have worked with the problem of marital breakdown in voluntary organisations or in a professional capacity as lawyers, social workers or doctors are aware of instances of that nature.
There is a difficulty because it is the Garda who are looked to by many wives who obtain barring orders to enforce those orders and provide them with protection. I have come across instances where gardaí who have been barred for assaulting their own wives have been sent to provide assistance for other wives who have been the victims of violence. I have come across cases where members of the Force have been sent out to restrain another member of the Force who has been barred from trying to re-enter the home. That creates very real difficulties. The demarcation line in the Garda between a person who perpetrates an offence and the possibility of arresting a colleague gets very confused. There is a need for a strict code of conduct to be handed down on by the Garda Commissioner setting out to members of the Force exactly how they should exercise their powers to arrest without warrant under existing legislation and under the Bill before us where a spouse who has been barred, be it a husband or wife, breaks a barring order or a protection order.
One of the great fears of many wives is that if they get a barring order and the husband arrives at the home in the middle of the night there will be nobody available to provide them with help if they call for it. There is a need to reassure wives who are the victims of violence that barring orders work and can be effective. In the great majority of cases barring orders are effective in providing protection for wives. They are effective in having violent husbands put out of the family home. There is a need to reassure wives that if they obtain a barring order the powers conferred on the Garda to arrest without warrant will be truly exercised if the violent husband is in breach of the barring order. I hope the new Garda Commissioner will look at this.
It is interesting to note that the problems that Women's Aid speak about in the excellent report they published some weeks ago have been referred to by women's organisations in many countries. Similar reports have been produced in Canada by women's organisations in the context of the Canadian courts enforcing orders similar to barring orders. There have been similar problems in England and in the United States. It is noteworthy that in some of the police authorities in England the codes of conduct and practice which I would like to see applied here has already been brought into operation. They have been seen to work, to build up the public's confidence and, in particular, the confidence of those who look to barring orders to provide them with protection and in the protection being real. There has been a uniformity of approach by the police in responding to calls for help when barring orders are broken.
A number of other problems arise in the context of barring orders and which apply equally in the context of protection orders. If a District Court makes a barring order it will expire 12 months after the date it is made. A barring order made by a Circuit Court can go on for a longer period. If a husband is being violent the courts make a barring order under which the husband is excluded from the home. From then on he is left alone and the law takes no further part in the life of that husband but 12 months later when the husband may return to the home he may have the same violent personality he had when he was barred 12 months earlier. There is no provision in our legislation for any social work help, counselling or any assistance to be given not only to the wife who obtains the barring order but to the husband who was barred.
The report of the Joint Committee on Marital Breakdown emphasised that where a husband was barred it was in the interests of his family, society and himself, that there should be provision for an effective service to provide counselling for him. It is in the interest of the husband so that he will have an opportunity to come to terms with whatever personal difficulties he has. It is in the interests of the wife so as to ensure that if the husband is to return to the home 12 months laters, or some time later, that he does not return as a person who seems to be threatening violence on her. It is in the interests of the children of the couple because whether a husband is barred or not he still remains the parent of his children and will continue to have contact with them. Any personal difficulties or problems the husband has which have given rise to him responding in a violent way to his wife could create equal difficulties for the children.
At present we bar husbands and wash our hands of them. We leave them to return to the family home 12 months after the barring order has been made, as in the case of a District Court order, like a smouldering Exocet waiting to explode in a night of violence. Some wives find themselves in the position of having to move out of the house in such circumstances. There is an absolute necessity to have the probation and welfare service available in the absence of statutory provisions to provide for counselling for barred husbands or husbands against whom a protection may have been made. In the absence of some form of counselling provided by way of statute and in the absence of a family court structure with a full back-up service, there is a need to utilise the probation and welfare service so that welfare officers who have experience in dealing with marital breakdown problems can make contact with the husband who has been barred to ascertain if he is willing or interested in co-operating in a form of support counselling following the making of a barring order. There is a need to involve agencies and not to leave that husband as someone abandoned, who is shut out from his home yet still maintaining some sort of unspecified contact with his children. It is possible he will be full of resentment because he has been put out of his home and he may return 12 months later with an even more violent personality than he had at the time the barring order was made. There is a real problem in that area.
I do not want the message to go from the House that barring orders are only in force for 12 months. A person who can afford to go to the Circuit Court or who can get assistance from one of the Government law centres to go to the Circuit Court may get a barring order that will remain in force permanently. Many permanent barring orders have been granted but a vast number of orders are granted by the District Court. This is where we have another problem, and it is a problem Women's Aid referred to, as did the Oireachtas Joint Committee on Marriage Breakdown. It is a problem which in a sense is repeated in this Bill because this Bill falls down in one very important respect.
In the context of obtaining a barring order or protection order the provisions of this Bill provide for the expiration of such orders 12 months after they have been made. At the moment a barring order lasts 12 months and the wife can go back to court and look for an order for a further 12 months. When that expires, in theory, she can go back again. The difficulty is that there are two different judicial approaches used in these circumstances. Where a wife seeks to have a barring order which has been in force for 12 months renewed she may or may not succeed depending on the justice, no matter how serious the violence which originally gave rise to the barring order.
Some district justices take the view that if a barring order has been made, if the husband has stayed away from the family home and behaved himself for 12 months, and if the wife seeks to renew the order, no matter how horrific the assaults of the husband on the wife were before the barring order was made, the order will not be renewed. Some district justices take the view that the order will only be renewed if the husband has broken the barring order or if there has been a violent or threatening incident during that 12 month period. Other district justices take a different view. They take the view that if the original barring order was granted because violence was particularly bad and if the wife comes back after 12 months and says she is truly afraid of her husband and could not possibly live with him, and that even though he has behaved himself for 12 months she believes he will be violent again, they will grant a barring order.
This brings me back to where I started 20 minutes ago, that is, the lack of a uniformity of approach on the part of the Judiciary. It means that some wives get better protection from the courts than others, and whether they can have the barring order renewed for another 12 months will depend on the game of judicial roulette and which district justice sits on the day their cases are heard. That is a very real problem. I would like to see on Committee Stage some provisions setting out the criteria that should be applicable in the context of the courts, and the district courts in particular, deciding whether to renew a barring order, because at present this is left totally to the justices' discretion. There is no real guidance in this legislation as to how a district justice should determine an application to renew a barring order. There is a very real need to set out the specific criteria which should apply in these circumstances so that the varied, differing and contradictory approaches which take place in our courts are brought to an end and a uniform approach to the renewal of barring orders at District Court level comes into being.
There is another problem in the area of barring orders which should be mentioned. This, too, was referred to by the Oireachtas joint committee. When a barring order is made, effectively a husband is barred from the home. When the barring order is sought the wife may bring other court proceedings. She may be looking for maintenance for her support and she may bring custody proceedings with regard to children. If she does so, the husband, if barred, may look for an order for access to his children.
There are many cases where wives simply seek protection orders or barring orders, as they will be under this Bill. They do not bring proceedings under the Guardianship of Infants Act. The children are living with them and there is no dispute about custody although they may bring a maintenance application at the same time. The district justice hears the case, and grants the barring order.
There can then be a difficulty when young children find one of their parents has been excluded from the family home. It is one of the curiosities of family difficulties that a husband who is barred from the home for being violent may have a very good relationship with his children. The husband who is behaving in an appalling way towards his wife may not only have a good relationship with his children, but the children may have a very good relationship with him, and the wife may say that the husband has a very good relationship with his children although he behaves very badly towards her. Unless this husband brings his own court proceedings when the barring order is made, he can be excluded from having excess to his children. Separate additional court proceedings have to be brought if he wishes access to them.
It would make sense to put a provision in this Bill saying that when making a barring order the District Court should have jurisdiction to make orders granting the spouse, against whom the barring orders is made, access to his children, such as the orders which can be made under section 11 of the Guardianship of Infants Act, 1954 without the necessity of instituting additional proceedings. Under existing legislation a barring order can be subject to conditions. It is arguable that in making a barring order at present a district justice could use the fact that it can be subject to conditions to insert as one of those conditions the access arrangement but, in practice, district justices do not do that. While that is possibly a theoretical legal interpretation of the measure, I think there should be an explicit provision in this Bill conferring powers on the courts when making barring orders, where it is in the interests of the children, to also make access orders.
I hope the Minister will have regard to some of the comments I have made with a view to bringing forward amendments on Committee Stage. I ask him to respond to my suggestion that the Garda commissioner provide a uniform code of practice for the Garda with regard to the enforcement of barring orders and protection orders. In my view, it would be a proper function of the Minister to write to the commissioner asking that such a code be prepared and perhaps the Minister would report to us on Committee Stage and tell us the response he has received from the commissioner to this proposal.
Would the Minister indicate what his current position is with regard to some of the other major reforms of family law that are recommended by the Oireachtas Joint Committee on Marriage Breakdown? That committee said the possibility of making permanent protection orders should be provided and this Bill is a response to one small part of their recommendations. It is becoming increasingly urgent that we provide a comprehensive system of family courts with judiciary properly trained to deal with family law matters having the necessary back-up services to assist them in reaching decisions arising out of very difficult and heart-rending disputes which occur when marriages break down. The current court system and court structure are grossly inadequate to provide the type of family law system that those who look to our courts for help when marital difficulties occur are entitled to.
The manner in which we deal with family law matters would be inadequate in the context of an objective at any level. In the context of the special position given to the family under Articles 41 and 42 of the Constitution, of the outpouring of concern from the Fianna Fáil Party about the family, family life and marital breakdown during the course of the divorce referendum, one would expect the Government and the Minister to bring expeditiously before this House legislation to provide a comprehensive system of family courts.
