Dáil Éireann debate -
Tuesday, 4 Jul 1995

Vol. 455 No. 4

Return to Writ: Wicklow. - Domestic Violence Bill, 1995: Second Stage.

Minister for Equality and Law Reform (Mr. Taylor)

I move: "That the Bill be now read a Second Time."

Violence in the home is an abomination. It affects the welfare and safety of adults and children and makes life a living hell for its too many victims. People in their homes have the right to enjoy themselves without violence whether that violence is actual or threatened, physical or mental. The problem is complex and the causes are many and varied. The perpetrators are normally men and the victims women and children. It is a problem which transcends all classes and areas, city and provincial. The Domestic Violence Bill is about providing a proper legal framework to deal with the civil law aspects but it incorporates in addition new powers of arrest for gardaí. It repeals and re-enacts with substantial amendments the Family Law (Protection of Spouses and Children) Act, 1981.

The most widely availed of remedy in the area of domestic violence is the civil law remedy of a barring order which was introduced in 1976. Prior to that, the main civil law remedy available was an injunction in the High Court or Circuit Court. The barring order remedy was a radical innovation at the time, although it was, and continues to be, limited to violence by a spouse against the other spouse and children. The absence of legal aid in earlier years meant that for practical purposes recourse to the law was not available to everyone. The introduction of the scheme of civil legal aid and advice in 1979 was, therefore, of major importance.

The Family Law (Protection of Spouses and Children) Act, 1981, strengthened the law on barring orders, following representations by various women's organisations. The main changes made were the extension of the District Court's time limit from three months to 12 months, the granting of a statutory power of arrest without warrant to the gardaí for breaches of orders and the creation of a new type of order called a protection order. Protection orders were designed to provide immediate protection for the applicant spouse or child pending the determination of the barring order application. They fell short of barring the offending spouse from the family home.

Of relevance also as a remedy for violence against women in the home is the Judicial Separation and Family Law Reform Act, 1989. Among the grounds on which a decree of judicial separation may be granted are the unreasonable behaviour of one spouse towards the other. In separation proceedings, the court may grant a barring order or a protection order and the court may confer on one spouse the right to occupy the family home subject to such conditions as it thinks proper or it may transfer ownership of the home to the other spouse in suitable cases.

Facts about the operation of the barring orders procedures may also help to inform debate on the Bill. Court statistics reveal that the average annual number of applications to the courts over the past three years was 4,365 and the number of decrees granted was 2,248. This appears to indicate at first sight that just over one-half of applications for barring orders result in the granting of orders and that the courts show a marked reluctance to grant orders. However, further analysis reveals that a good number of applicants withdraw their applications or fail to turn up for the court hearing.

The experience of the Legal Aid Board is that 90 per cent of those who turn up in the District Court for the hearing of their applications for barring orders are successful and that the vast majority of orders granted are for the full 12 months period. The reasons victims do not proceed with their applications vary. It may be because of intimidation by the other spouse; it may be because of a genuine change in circumstances where the respondent spouse stops the violence; it may be that the applicant spouse does not want to go as far as to have the respondent barred from the home, or it may be that the victim spouse is prepared to give the respondent another chance. We obviously need to be careful in amending the law in this area to ensure that change will be for the best in what is a very complicated area involving family and other relationships, high emotions and, most importantly, circumstances in which the protection of life itself may be at stake.

In 1987 the Family Law (Protection of Spouses and Children) (Amendment) Bill was initiated in the House. This was intended to permit granting a long term protection order as a final remedy in appropriate cases of family violence or ill-treatment. The Bill was eventually withdrawn because of opposition from women's organisations, based on the fear that if the Bill were enacted the courts might almost invariably take the "soft option" of granting a protection order instead of a barring order, thus diminishing the existing legal protection for victims of family violence.

The one feature of the barring order remedy which has been most often criticised is that it is confined to inter-spousal violence. Increasingly, over the years, patterns of social behaviour have changed — many households are established on the basis of non-marital arrangements. It has also become clear that domestic violence is not confined in the main to spouses or indeed cohabitants; it can occur between parents and children, brothers and sisters, and other members of households. The Government accepts that the law in this area needs to be updated in the light of these realities and, as part of its programme of family law reform, is committed to the changes now provided for in this Bill.

The law in relation to the protection of victims of domestic violence has been the subject of various recommendations and submissions from, for example, the Law Reform Commission in its report on child sexual abuse, the Second Commission on the Status of Women and the Kilkenny incest investigation team and groups like AIM and Women's Aid. A number of groups have sought the extension of barring orders to cohabitants. Many have advocated more widespread availability of protection orders — not as an interim measure pending the granting of a barring order as at present — but as an alternative remedy in its own right. Other groups point to the lack of support available to victims who are faced with the trauma of having to seek protection and recommend that outside agencies should be given a role in such cases. Women's Aid has complained of the difficulties involved in obtaining a barring order where emotional rather than physical violence is involved and it expresses concern about the restrictive nature of the powers of arrest without warrant which the Garda have in dealing with violent domestic incidents.

This Bill is the result of a comprehensive review of the civil law in relation to the protection of persons from domestic violence which I have carried out in my Department. All of the criticisms which have been levelled at the present system have been taken into account in the course of my review. I am most grateful for the information which has been put at my disposal by the various organisations concerned.

As I said the Bill is for the most part about the civil law aspects of domestic violence. Criminal law sanctions are, of course, also available. Despite the presence of those criminal sanctions, the practice here, as in other countries, is that spouses seek, for the most part, recourse to the civil law rather than the criminal law. This is not difficult to understand. The criminal law is a blunt instrument which is primarily intended to punish the offender. Many victims of domestic violence are not interested in imprisonment as the solution — they want the violence to stop, and may even wish to continue to reside with the offender. The primary aim of civil law legislation on the matter should be to provide protection for victims in a flexible way which takes account of their differing needs. This Bill aims to do that but it strengthens the force of the law and is intended to reflect the abhorrence with which society rightly condemns violence in the home.

I turn now to the details of the Bill. Section 1 defines a number of terms for the purposes of the Bill, one of which, the definition of "welfare", I should like to explain further. That definition makes clear that the word includes mental and emotional welfare in addition to physical welfare. This will help allay a perception among some groups that actual physical violence is a necessary prerequisite to the granting of a barring order.

Section 2 introduces a new type of order to be called a safety order. It will in effect be a long term protection order. The 1981 Act empowers the court to grant a protection order between the making of an application for a barring order and its determination. It does not bar a spouse from the family home, but prohibits that spouse from using or threatening to use violence against, molesting or putting in fear the applicant spouse or a child. The new safety order may be granted in its own right and not as an interim measure and may, in addition, prohibit a respondent who does not actually reside with the applicant from watching or besetting the residence. Such a remedy may prove to be sufficient protection in those cases where the victim may not want a spouse barred from the home but wishes nevertheless to have the protection of a court order. The reports of the Second Commission on the Status of Women and the Kilkenny incest investigation team recommend that provision be made for the granting of orders of this nature.

Section 2 provides that a safety order procedure will be available to persons in domestic relationships. It will be available on the application of a spouse against the other spouse, a cohabitant against the other cohabitant, a parent against an adult child and an adult person against any other adult person who resides with him or her. The term "cohabitant" is not used in the Bill.

That class of person is referred to technically in various sections of the Bill as a person who is not the spouse of the respondent but has lived with the respondent as husband or wife. In the case of a safety order it must be for a period of at least six months in aggregate during the period of 12 months immediately prior to the application.

Violence in the home is not confined to violence by one spouse against another or children. It transcends all relationships. For this reason I have provided that the safety order remedy will be widely available. An exception is made where the relationship is primarily contractual in order to ensure that the remedy is confined to what are genuine domestic disputes and does not, for example, become a feature of disputes between landlords and tenants for which there are adequate alternative legal remedies. Of course, the nature of a relationship may change over time from being primarily contractual to primarily non-contractual. Each case will have to be decided by the court on its merits and subsection (1) (b) sets out some factors to which the court must have regard in reaching a conclusion. These factors include, for example, the amount of rent paid and the nature of any duties performed by one person on behalf of the other.

The section also contains a range of ancillary provisions in relation to safety orders. It provides for the variation of orders on the application of any of the parties concerned. The duration of a safety order granted by the District Court is limited to five years renewable on application for a further five years and the Circuit Court will have unlimited jurisdiction.

Provision is made to ensure that the type of objections which arose when attempts were made to introduce safety order type legislation in 1987 will not arise again. Accordingly, section 2 prohibits the court from granting a safety order where the applicant applies for a barring order. The same will also apply in reverse — the court will be prohibited from granting a barring order where the applicant applies for a safety order. This will give the applicant a degree of control over the proceedings, which, according to my Department's research, victims perceive to be lacking in such cases. The court may, of course, consider the alternatives of a safety or a barring order where the applicant chooses to apply for both remedies in the same proceedings.

I am providing in section 17 that breach of a safety order will be punishable on summary conviction by a fine of up to £1,500 or imprisonment for up to one year, or both.

Section 3 in general re-enacts the barring order procedure while providing in addition that the remedy will be available to a wider class of persons than spouses and their children. The effect of a barring order will remain — it will operate to bar a person from entering his or her home.

The class of persons who may apply for a barring order is being extended to cohabitants one against the other and the remedy will be available also to a parent against an adult child. In so far as cohabitants are concerned, they must, under section 3, have lived with the respondent as husband or wife for a continuous period of at least six months during the period of seven months immediately prior to the application.

Subsection (4) of section 3 is intended to protect the rights of property owners which the State and its laws must respect under the Constitution. Except where the applicant and respondent are spouses, the court will not be able to bar a respondent with an ownership interest in the property unless the applicant also has an equivalent ownership interest. I am advised that a proposal to bar a respondent with an ownership interest on the application of a person with any lesser interest could be open to serious constitutional challenge on the basis that it may infringe that person's property rights which the State in its laws must respect under Article 40.3 of the Constitution.

The position is different where the parties are married — an infringement of a spouse's property rights is presumed to be justified on the basis that the rights of the family founded on marriage are protected by the Constitution and take precedence over property rights. The difficulty was recognised in the report of the Second Commission on the Status of Women. It is not a difficulty with which many people may be impressed and it is something which may, following further examination and debate, require attention to ensure that the interests of justice and a proper balance of interests prevails.

Subsection (5) contains a general saver which protects the rights of persons other than the applicant or respondent who have a legal or beneficial interest in the dwelling. For example, the fact that an applicant has succeeded in having a respondent barred from a property will not render him or her immune from ejectment proceedings instigated by the landlord for non-payment of rent.

The maximum duration of a barring order granted by the District Court will be three years as opposed to one year at present. Breach of a barring order will, under section 17, be an offence punishable on summary conviction by a fine of up to £1,500 or imprisonment for up to one year or both. This is an increase on the present sanction of a fine of up to £200 or imprisonment for up to six months, or both.

Section 4 empowers the court to make an interim barring order in emergency situations and on an ex-parte basis if necessary. This power will significantly increase the ability of the courts to react quickly in situations of domestic violence. The section empowers the court to grant, subject to certain conditions, an interim barring order pending the determination of an application for a barring order. Such interim orders may be granted without notice to the respondent where the court considers it expedient in the interests of justice to do so.

Nevertheless, it is important to guard against the danger of a misconceived or malicious application particularly when one considers that a respondent could be barred from the home on the basis of an allegation which he or she has had no opportunity to refute. For this reason the granting of such orders is confined to extreme cases, that is cases where there is evidence that there is an imminent risk of significant harm to an applicant or dependent person if the order is not made immediately; it is likely that any delay will cause fear or trauma which will deter the applicant from proceeding with an application; and the court is satisfied that a protection order will provide insufficient protection.

Section 5 re-enacts section 3 of the 1981 Act and provides for the granting of a protection order pending the determination of an application for a barring order and is in substance the same as the protection order procedure under existing law, except that it may also be ordered pending the determination of an application for the new safety order that is provided for in the Bill.

Section 6 is a significant new provision which allows a health board to apply for a barring order or a safety order on behalf of a victim of domestic violence. Such provision has been recommended by the Law Reform Commission and the Kilkenny incest investigation team. The health board will be obliged to consult with the victim before applying for a barring or safety order. Subsection (1) specifies the circumstances in which a health board can apply for a safety or a barring order. The section applies where a health board (a) becomes aware of an incident or incidents which in its opinion puts into doubt the safety or welfare of the victim; (b) has reasonable cause to believe that the victim has been subjected to violence or otherwise put in fear of his or her safety or welfare; (c) has reasonable grounds for believing that the victim, or parent of a child victim, would be deterred or prevented from applying for a barring or a safety order; and (d) considers it appropriate to apply for an order having ascertained as far as reasonably practicable the wishes of the victim or parent of the victim.

An aim of the section also is to allow a child stay in its home where possible and to have the perpetrators of violence rather than the child removed from the home. However, in making any order where children are concerned the court will have to be satisfied that there remains a parent in the home who is willing and able to provide reasonable care for the child. This will avoid a situation where a child could be left in the home with a parent whose capacity or willingness to provide care is suspect.

Section 7 empowers the court to adjourn proceedings for a barring or a safety order which affects the welfare of the child where it considers that a care order or a supervision order under the Child Care Act might provide a more appropriate remedy. It may order a health board to investigate circumstances with a view to arriving at the best possible solution in the child's interests. The objective here is to ensure that the barring or safety order solutions are not viewed in isolation but are considered against the backdrop of other services which can be provided by a health board.

Many of the remaining provisions of the Bill are based on the provisions of the 1981 Act and mirror those provisions closely. There are some important exceptions, however, with which I intend to deal specifically.

Section 9 empowers the court to deal with maintenance, barring, family home protection and child care applications in the one set of proceedings. This provision reflects the fact that the problem of domestic violence is often intertwined with a variety of other problems. For example, a wife who is being abused by her husband may also find herself in the position that she is unable to obtain maintenance from him for herself and her children. The purpose of this section is to allow the court to deal with all of these matters as a package.

Section 13 provides for the discharge of orders on the application of any of the parties concerned. The court will not be empowered to discharge an order unless it is of the opinion that the safety and welfare of the victim is no longer at issue. This represents a stronger test than the safety or welfare test which is currently applied. If the courts are asked to discharge an order which was originally made on safety grounds, they must be satisfied that the mental and emotional welfare of the victim as well as his or her physical safety no longer requires it.

Section 16 requires that civil proceedings under the Bill should be heard in private as is the case under the 1981 Act and under other family law legislation. This provision will not apply to proceedings for breaches of orders which will continue to be subject to the general criminal law provisions and be heard in open court. The section also provides that civil proceedings under the Bill shall be informal as is practicable and consistent with the administration of justice and that judges and barristers in such proceedings shall not wear wigs or gowns.

I have already indicated that section 17 of the Bill makes contravention of orders under the Bill a criminal offence and that the fine and term of imprisonment will be higher than under the present law in the 1981 Act. The gardaí will continue to have a power of arrest without warrant for breaches of barring and protection orders and that power is being extended to the new safety order and interim barring order procedures.

The powers of arrest without warrant of the Garda in domestic violence situations are unclear. The Garda can arrest for breaches of barring and protection orders but where those orders do not exist and violence has occurred they are not in a position to arrest for many of the acts of violence which occur. The difficulty arises because of the common law distinctions between felonies and misdemeanours. Section 18 (2) makes clear that a power of arrest without warrant will exist for offences of assault occasioning actual bodily harm or grievous bodily harm.

The Garda will have power, if need be by force, to enter any place where they suspect the perpetrator to be. At present when the Garda are called to a scene of domestic violence they may not be able to gain entry. The perpetrator may have forced or convinced the victim not to let the Garda in. Scenes of domestic violence are difficult, but too often it may be said the Garda are not in a position to investigate fully the violence against the victim, be it adult or children, and this new provision in the law to enter by force, if necessary, is deemed essential by the gardaí and the victims of violence.

These are the main provisions of the Bill. Other Departments as well as my own have responsibilities in relation to the problems of domestic violence. The Department of the Environment makes special provision for the housing of victims of domestic violence, the Department of Health provides, through health boards, financial assistance to organisations involved in providing assistance to victims, and is also responsible for reform of the law in relation to the care of children. The Department of Justice has responsibility for the criminal law and the Garda Síochána operates special policies to deal with domestic violence.

Counselling, for funding which my Department has responsibility, must continue to have a part to play. Over the past two years I have more than doubled State funding to the many groups who are engaged in marriage counselling throughout the country. The aim is to give a boost to these organisations with a view to enabling them, where possible, to expand and develop their services. It is my intention to continue to address in a legislative and non-legislative manner the problem of marriage breakdown — a problem that includes domestic violence.

I hope this Bill will commend itself to Deputies on all sides of the House. I look forward to a good and constructive debate on the Bill and I commend it to the House.

Dr. Woods

I welcome the Bill which is timely, if not overdue. I am glad it has come before the House at this time and we are happy to support its passage.

One of the greatest tragedies a family can face is to be caught up in a cycle of domestic violence. The home instead of being a source of security and strength becomes a place of terror for the weaker spouse and children. People of either gender can be violent and abusive, but we must acknowledge that the vast majority of incidents of domestic violence involve abuse being perpetrated by men on women and children.

Domestic violence of any sort is unacceptable. It is imperative that the law must act to protect the victims who suffer not only physical violence but also psychological trauma. Last year in Dublin almost 1,000 battered women sought refuge in Eastern Health Board shelters. They were too terrified to return home. Women's Aid expects to receive some 10,000 calls for help and advice this year. The attacks include blows to the head, fractures, lacerations, horrific beatings, assaults with knives and rape.

Many viewers were shocked and affronted by the brutality of family life experienced by women in Dublin which was graphically illustrated in the television programme based on Roddy Doyle's story entitled "The Family". However, for many women that type of domestic violence is sad reality. Their cry for help must be heard and must be met by an urgent response.

Over the past 15 years a valuable network of women's refuges and family support centres has developed around the country. They provide important services for women and children. They offer a life saving service to women who are at high risk of abuse from violent partners. It the network of refuges were developed and provided with medical, legal and child care support and facilities, women and children would not have to put up with assault or sexual abuse. This Bill which extends the law on barring and protection orders and introduces safety orders greatly improves the measures at our disposal to tackle and guard against domestic violence.

The Family Law (Protection of Spouses and Children) Act, 1981 marked an important step for our society in acknowledging the existence of domestic violence and in providing some protection for spouses and children.

As a society we took domestic violence from behind closed doors and gave its victims the protection of the law which they previously lacked. In its time the 1981 Act served our community well. However, in the 15 years since its enactment the ongoing problem of domestic violence has not gone away. The experiences gained under the operation of the 1981 Act and the changing nature of society today make this Bill timely and necessary legislation.

Fianna Fáil wholeheartedly welcomes the legislation which was originally proposed by a Fianna Fáil-Labour Government to strengthen the protection available to the victims of domestic violence and to recognise the wide range of people in different domestic situations who may be subjected to it. In particular, Fianna Fáil welcomes the introduction of the safety order. Domestic violence is a complex social issue and while it may seem contrary to good sense, in many circumstances women feel they cannot leave abusive partners. To walk away from an abusive partner is justifiable but it has inevitable, serious and potentially devastating consequences for all members of the family involved. Many women cannot or will not seek barring orders against their husbands as they would have the effect of breaking up their families and depriving their children of their father. The figures outlined by the Minister highlight that reaction by women. Many women in violent relationships want to preserve the relationship but to stop the violence.

Any legal system designed to benefit and protect the victims of domestic violence should meet the needs of those victims and provide a range of remedies so that the victim can choose the one most appropriate to her circumstances.

The proposed safety order prevents the use of threat of violence against a partner or dependent child but does not have the additional effect of barring the respondent from the family home. This is a major improvement on the 1981 Act as a woman will be no longer faced with the stark choice of barring her husband and possibly breaking up the family or continuing to endure a violent relationship. The introduction of the safety order provides a mechanism whereby the integrity and unity of a family may be preserved while allowing that family to resolve its problems in an atmosphere that does no threaten or imtimidate any member of the family. This law provides for an immediate and effective remedy that will not devastate the household it is intended to protect. Importantly, and correctly, the barring order has been retained as a remedy for cases where the victim of violence believes it is necessary to remove the offender from the family home to ensure the safety of her and her children.

While the Bill provides this useful and worthy mechanism it fails to go further and address the root causes of domestic violence. We have come a long way since domestic violence was suffered and endured in silence behind closed doors by women and children who were too afraid or ashamed to speak out. As a society we must acknowledge the unacceptable incidence of domestic violence in our community. We have, through this and previous legislation, provided some measure of redress and protection for the victims of violence. Unfortunately, this Bill has failed to go further, to look behind the awful facts of domestic violence and to address the reason for it.

The abuse of alcohol is traditionally one of the main causes of domestic violence. Many a mother has endured verbal abuse and physical violence in the interests of the family. She frequently did this in the belief that the drinking bouts would be eventually controlled and peace restored to the household. Unfortunately, the alcoholic will normally be the last to realise that he or she has a serious problem. The shock of a barring order may often help in the process of facing reality and the damage and abuse being suffered by the family. The introduction of the safety order provides an earlier and less severe remedy and protection against a violent partner. The purpose of this new measure is to provide for early and immediate action when domestic violence occurs. It is designed to nip trouble in the bud and help to keep the family together. Women or children should not have to endure domestic violence or abuse. This new protection is our response and it should be used without hesitation to stop this cowardly and revolting practice.

It is essential that the law provides immediate protection for the victims of violence and abuse, but we should also try to prevent that violence and abuse in the first place. As the law stands it will perpetuate a cycle of violence followed by legal intervention. We know from experience that women seek protection from the same men on many occasions. We know that a man who is violent in one relationship is likely to form successive violent relationships. The intervention of the law to protect one victim may merely transfer that violence to another victim. Protecting the victims must be our first priority but preventing the creation of new victims must follow closely.

It is time society faced up to this responsibility, faced the perpetrators of domestic violence and forced them to address their behaviour in an effort to change. We must provide treatment, counselling and therapy for them and ensure the children and adolescents do not come to regard domestic violence as a normal aspect of family life or to accept that there is a level of violence that should be tolerated within the home. We must reach the victims of violence, particularly children caught up in violent and abusive families and ensure they receive the necessary support to break out of this cycle of violence.

We should also recognise that in some cases the protection of the law may not be enough to ensure the safety of a woman or children and that many victims of violence live in terror that the offender will break a court order and return to attack her. It is essential that adequate funding is available to provide refuges and shelters for the victims of violence. There must be adequate support systems so that a victim of violence can seek help without losing dignity.

Therefore, while I welcome the Bill because it strengthens the framework of legal protection available for the victims of violence, I again emphasise that providing the necessary legal structures addresses only part of the problem of domestic violence. We must also provide educational and social structures that are adequately funded to protect, counsel and support the family to break the cycle of violence. It is regrettable that the opportunity was not grasped in this legislation to tackle the broader issues surrounding domestic violence.

Some provisions of the Bill are unnecessarily restrictive and deprive groups of people of the protection they may require. In general I welcome the extension of the right to apply for a barring or safety order to people other than the spouse of the respondent. For the first time this provides protection for the parents of adult children and for cohabitees. However, I notice it is intended that a spouse, a cohabitee, or the parent of a respondent only may apply for a barring order under section 3. This appears to mean that the father of a violent man, living in the family home, can apply to have him barred but that the sister of that man, also living in the family home, cannot. This is unnecessarily restrictive and there does not appear to be any reasonable ground for drawing this distinction.

I note also that under section 3 the court cannot make a barring order — if the parties are not married to each other — where the respondent owns the place in which they live or owns a greater share than the applicant. We are aware that economic dependency often renders it very difficult for the victims of violence to escape from an abusive situation. It seems illogical to deny someone the protection of the law because they are economically vulnerable. Surely the physical safety of the victims of violence should take priority over economic considerations? In this respect, is the Minister constrained by constitutional guarantees relating to property? From what he said in his introductory remarks, it appears that he is. Perhaps this matter can be examined further before Committee Stage.

My party welcomes the increase in the penalties on summary conviction "to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both" for breaches of barring and protection orders and their extension to breaches of the new safety orders since almost every breach of a barring or safety order involves violence and threats. Those assaults are not dealt with specifically in this Bill but fall to be dealt with under the general criminal law. It is time we made it clear that a physical assault is a criminal act whether it occurs in the home or elsewhere. The Bill only provides for penalties on summary conviction. I trust this will not prevent the perpetrators of domestic assaults being prosecuted for the serious criminal offences such assaults represent.

I also welcome the new powers of the Garda in cases of domestic violence — to arrest without a warrant. This will include persons in breach of a safety or barring order, or whenever he assaults someone who would be entitled to the protection of a safety or barring order. It allows the Garda to enter, without a search warrant, the place where the perpetrator of such violence is to arrest him; they can act immediately, a very important development. However, if and when a violent man is arrested when assaulting a woman, will he be turned loose from the Garda Station, free on bail, half an hour later to finish where he had left off? The remedies, penalties and new powers of the Garda encompassed in this Bill will not be effective without implementing sensible improvements in the operation of our bail laws. These and other issues can be discussed in detail on Committee Stage. The Minister has already voiced his concerns in this respect.

We welcomed and support the introduction of this important Bill. Domestic violence is often a hidden scourge of women and family life and its victims deserve the best protection the law can offer. This Bill will ensure that such protection is immediate, effective and real. Domestic violence is entirely unacceptable. This Bill, conceived by the Fianna Fáil-Labour Coalition Government should, and I believe will, have the support of every Member.

Ms Keogh

The provisions of this Bill represent an extremely significant reform, offering an enormously strengthened degree of protection to women living within violent relationships. In protecting women, they will also protect children. For those reasons I commend the Minister on the introduction of this Bill and whole-heartedly support it on my own behalf and that of my party. I also commend the Minister on having engaged in widespread consultation in its drafting. Such consultation is essential, particularly in this area, when we must always listen to and deal with those people daily involved with the problem. The Bill must be all the better for such varied thorough consultation.

Violence against women is a social evil of the worst kind. It is a violation of women's human rights, causing serious, often permanent, physical and pscyhological harm to the women and childen affected by it. It occurs right across the social spectrum yet, because it occurs behind closed doors, is one of the most difficult crimes to detect and prevent.

There are no national statistics on the levels of domestic violence. However, voluntary organisations working in the field are in no doubt that the levels are appalling. Women's Aid, which operates a free-telephone line received 10,000 calls in the first half of this year. In the first year of its existence, the Garda special domestic violence and sexual assault unit in Dublin received over 5,000 calls. Those figures are horrifying in the light of international experience showing that between 10 and 15 per cent only of women assaulted by their partner will report the offence.

Over many years the social attitudes to domestic violence, including those of the police, legal profession and legislators, conspired to serve the interests of the abusing man and not those of abused women and-or their children. For years the family home was seen as the man's personal fiefdom in which his power was absolute. Behind its doors the man of the house was perceived to have had absolute rights over his wife and children, which included the right to assault them if he wished. Women who were assaulted by their husbands were expected to put up with it; if they left their husbands they were seen to have abandoned their marriage vows. Indeed stories abound of women who, having been assaulted were sent back to their husbands by their own families. Conversely, women who remained with their abusing husbands, usually out of economic necessity, were perceived by many either to have asked for it or to be a weird person who got a thrill out of being beaten up. Those attitudes are alive and well and remain a major underlying factor in continuing problems of domestic violence.

As we have already heard, as recently as 1981 the Family Law (Protection of Spouses and Children) Act, 1981, introduced new legal remedies, including a protection order which prohibited a man from threatening violence against his wife and a barring order excluding him from the family home. While such remedies were welcome and necessary in so far as they went, they applied only to cases where the parties were married to each other; people cohabiting as husband and wife, or other persons living together in a domestic arrangement were not protected by the provisions of that Act.

Therefore, it will clearly be seen that this Bill represents a highly significant, legal reform, addressing the deficiency in the 1981 Act for the first time. For that reason alone it is a most welcome, necessary measure. However, I want to sound a note of caution. Domestic violence is a problem that will not, and never can, be solved by legislative action alone. The provisions of the Bill will not prevent domestic violence in the first place, its incidence will be reduced only by attitudinal change. Unfortunately, this Bill will do nothing to assist those thousands of women whose only means of escape from an abusive relationship is through the front door. This Bill will be of the utmost assistance to women with resources, educated women, who can afford to hire a lawyer and get an emergency court hearing, perhaps on the day following such an assault. It will be of no pracitical assistance to women in disadvantaged economic circumstances, unable to pay legal fees. Of course, the Minister will say that such women can avail of the services of the Legal Aid Board, some will, but there will be many others who will not have access to such an advice centre within their local area, who cannot or should not have to wait up to ten months, or whatever length, to obtain an appointment with a solicitor or other member of the legal profession. For such women there is no practical alternative to getting out of their homes. They need a refuge, a safe place in which they and their children will be protected from their abuser and helped to rehabilitate their lives. One of the greatest difficulties facing abused women and the voluntary bodies working in this field is not merely the lack of legal remedies — although that has been a very large problem — but the lack of refuge spaces. Access to adequate, safe refuges is essential if the commitment to action on domestic violence means anything.

There are currently 79 family places available for the victims of domestic violence; that level of provision is shameful. As long ago as 1978, a report from the Home Office in the UK recommended that a minimum of 100 family spaces was required in a city of the population density of Dublin. We now have less than that number for Ireland as a whole. In Dublin, there are only 14 family spaces; in Belfast there are 104. That is scandalous.

While I do not doubt the Minister's good intentions in bringing forward this legislation, which I welcome, the formulation of legislation is the easier part of the solution to complex social problems. It is a far more difficult and demanding task to engage in the sort of analytical study that such problems require. If the Minister is serious about tackling the problems of domestic violence, as I am sure he is, he will have to do more than bring forward this Bill. He must commission a survey of the levels of domestic violence. He must also consult with interested parties, and he has done that to some extent. He will have to introduce wide-ranging educational initiatives directed at the legal and medical professions, social workers and the gardaí. Most importantly, he will have to ensure we have more refuge spaces. Once additional spaces are provided, the Minister will have to consider the position of women who leave refuges. A refuge can never be more than a temporary solution.

Women who leave home by reason of domestic violence need re-housing. Often, they will also need intensive counselling, training and child care facilities to enable them rebuild their lives and live independently. I ask the Minister to indicate that he will tackle the problem where it needs to be tackled and I call on him to introduce a co-ordinated national strategy for the development of a nationwide network of refuges. I ask him also to develop a national strategy for dealing with the medium and long term needs of the victims of domestic violence. Until he does this, any measures directed towards improving the lot of abused women will not be effective.

I wish to refer to some of the provisions of the Bill. The Progressive Democrats welcome the Bill, as far as it goes, and we do so with few reservations. We have, however, a number of relatively minor difficulties with the Bill in relation to which I will be tabling amendments on Committee Stage. My main difficulty with it is the fact that, where the parties are living together as husband and wife but the woman has no legal or beneficial interest in the home, she is precluded from applying for a barring order, nor can she apply for a barring order in circumstances where her interest in the property is less than that of her partner. That creates an immediate problem.

There are many cases of a woman who has moved in with a partner on a permanent basis, who may have borne his children, cleaned his house, supported him in his career and contributed directly and indirectly to the establishment of the family home. Yet, because her name is not on the title deeds of the house or because she is not named on a lease, she does not have any rights. Of course, it would be open to a court to find, on a preliminary basis, that the woman in question had a legal or equitable interest in the home. This would confer jurisdiction on the court to hear the woman's application for a barring order. However, as the Minister knows all too well, such a hearing would be lengthy, complex and costly. It would have to take place in the Circuit Court as the District Court does not have any jurisdiction to determine issues of that kind. That would mean additional costs, additional travel and other difficulties for parties living far from the nearest Circuit Court. More importantly, because of the continuing appalling pressure on the Circuit Court family law lists, it would mean extremely lengthy delays between the issuing of proceedings and the hearing of cases.

In view of these matters, the remedy of a barring order will not be a practical option for the vast majority of women cohabiting with men. A married couple buy their house together and put both names on the title deeds as a matter of course. Has the Minister undertaken any empirical research on the structures of property ownership among cohabiting couples? I amagine that the number of such couples who have an equal interest in the property they live in would be very much less. The remedy of the barring order will be of extremely limited use to this particular group of women. The only effective remedy for them would be to continue the midnight flight to a refuge which, in all likelihood, will not have any available spaces.

I accept that the Minister considers there would be constitutional difficulties in granting a woman an order which barred a man from a property he owned, but surely a woman's right to bodily integrity, and her right to an inviolable dwelling, are superior to his property rights. What of the rights of the children of the relationship, if any? Are they to be forced into homelessness in the name of their father's property rights? Do the rights of children to a safe and secure home not count for anything? If a man is violently abusing the children he brought into the world and whom he has an obligation to house and provide for, the law should have power to exclude him from the family home on the application of the mother, irrespective of who owns the home. This issue will have to be teased out on Committee Stage.

Another difficulty that arises in the Bill is in relation to the powers and responsibility of the gardaí. Section 18 provides that, where an officer has reasonable cause for believing that an offence under the Act has taken place, he may arrest the alleged offender. Women's Aid has expressed its concern on many occasions about the lack of clarity in relation to Garda powers of arrest in domestic violence situations.

This section, therefore, does not do enough to clarify the position. The Garda ought to be put under a positive obligation to effect an arrest where a violent incident has occurred. I have attended Garda conferences and I know that the Garda Síochána has made great strides in learning about domestic violence and has, in some areas, adopted a major change of approach in dealing with the problem. Some circumstances remain, however, in which gardaí will refuse to arrest the husband. Imposing an obligation on the gardaí to arrest a violent husband would do much to improve the position.

I would like to pay tribute to the voluntary organisations, particularly Women's Aid, who have campaigned tirelessly over the years to assist and empower the victims of domestic violence. They are to be congratulated on the sustained way they campaigned for legislative and institutional reform. Without their efforts, I do not believe this Bill would ever have seen the light of day. Women's Aid needs the support of the Government. It is grateful for the introduction of this Bill but it requires much more. It must be given the necessary resources to continue to provide refuge, support, advice and counselling for women and children. Those resources are necessary to continue its public awareness campaigns and educational initiatives. The efforts of Women's Aid to provide housing for women who leave refuges must be supported through State provision of housing, including sheltered housing, for women who cannot return home.

We have waited a long time for the Bill, which I wholeheartedly welcome, but it is merely a step in the right direction. It is extraordinary that women and children in a crisis situation must rely on voluntary organisations to assist them. Preventative strategies must be put in place and I know the Minister welcomes the publication of "Zero Tolerance" by Women's Aid which is a national strategy for eliminating violence against women. There is much we can learn from the voluntary organisations working on the ground. I am aware the Minister has listened to them in relation to the Bill and, despite some disappointment, they are relatively satisfied with it. Unfortunately, legislation does not change attitudes and we must change the attitudes that result in violence against women. Research must be undertaken into the causes of such violence so that we can come up with solutions. Those solutions might involve the provision of adequate counselling and guidance for the perpetrator of violence. Whatever the solutions, they will have major implications for society, which is changing so slowly in Ireland. This has to do with an attitude regarding a woman's place in our society which even now, despite the happy advent of a 22nd woman Deputy in the House, is not what it should be. There should be a much more positive and inclusive role for women in our society, and nothing will change unless we have the role models and Government initiative to support people who are working directly with this problem.

Although I support this Bill and realise it is a major step towards what we are trying to achieve, we cannot deal with this just by legislation; we have to change those elements in our society that cause violence. The Minister has a very important role to play and I commend the zero tolerance document. The "National Strategy on Eliminating Violence Against Women" is practically a textbook analysis of how to do this. In particular it is very important to co-ordinate the roles of the various bodies and, as we have a Department of Equality and Law Reform, we have a unique opportunity to do that.

I look forward to the debate on Committee Stage and will be tabling some amendments to the Bill. I hope the type of debate we have in the House on Bills like this will help to improve the situation of those people who are least empowered and most vulnerable in our society.

Ms F. Fitzgerald

I would like to share my time with the Minister of State, Deputy McManus.

An Leas-Cheann Comhairle

That is agreed.

Ms F. Fitzgerald

I welcome the opportunity to speak on the Domestic Violence Bill, 1995. It has been a long slow struggle to put the issue of domestic violence on the political and social agenda. When the first refuge was opened on 24 June, 1974 the expectation was that this problem would quickly be on the political agenda in a high profile way. However, that has not been the case, and what we are seeing is a realisation that domestic violence and violence against women is a very complex issue.

This Bill puts in place a necessary legislative framework which is extremely important. It meets the requests of many women's organisations over a long period for a strengthening of the law to extend barring orders, to bring in a new safety order, to lengthen the period for which a barring order can be put in place, etc. The Bill deals with all these issues in a very careful way, and women who are experiencing violence, who feel very isolated and alone should be reassured by the provisions of this Bill and should know that the law, the Garda and the health boards are now in a stronger position to intervene. The fact that people other than the person involved can apply for a barring order is very helpful. This was suggested in the Kilkenny report, is provided for in this Bill. Women who are vulnerable, who have experienced domestic violence, must be informed that the law will be stronger in terms of protecting them once this Bill is passed, and that they will get a better response from the law to their situation.

The legislative framework is only one aspect of tackling this very insidious problem, and it is a problem not just in Ireland and not just among any one social class. Violence against women is a violation of women's human rights which occurs across all political, economic, cultural and social divides. It causes serious physical and psychological damage to women and children. It is a very grave social problem that threatens the safety, equality and bodily integrity of every woman.

The most endemic form of violence against women globally is physical and sexual abuse by husbands and male partners, and the statistics world-wide are frightening. Let us recapitulate on a few of them. In the United States, for example, battering is the single biggest cause of injury to women — 4,000 women are beaten to death by their partner every year. In Sweden a woman is battered to death by her partner every ten days. There are 115 refuges in Sweden and they are constantly full. People might be surprised to hear that when they consider the economic and social position that women enjoy in Sweden. It shows the complexity of the problem that, in a society where efforts have been made in relation to equality, other factors enter the equation. For example, it may be that it is because pornography is widely available that there is this huge use of refuges. It may also be that women are not prepared to tolerate violence and, in Sweden, interrupt the cycle of violence at an earlier stage and move out of violent situations into refuges. This may be one of the reasons there are so many refuges that are constantly full. In Great Britain it is said that 25 per cent of women have experienced physical abuse, and in Canada 39 per cent of women are reported as having been sexually assaulted. It is quite an appalling world-wide litany, and certainly not unique to Ireland.

There is a lack of statistical information in Ireland on the problem but it is becoming clear from the statistics we do have that we have a serious problem that needs a wider holistic approach, as mentioned by Deputies Woods and Keogh. Let me quote some statistics in regard to what is happening here. In the first year in which the domestic violence unit was set up, the Garda in the Dublin Metropolitan area monitored the handling of 6,000 cases of domestic violence. That figure becomes even more horrifying when one realises international research shows that only 10 per cent of women actually report domestic violence to the police.

There is no doubt that the Garda have made marvellous efforts to tackle this issue more effectively. The setting up of the special unit in Harcourt Street has been very important, and I call for the extension of that type of unit throughout the country. I understand that at present there is an inspector in each area who is responsible for monitoring the handling of domestic violence by the gardaí in his area. I recently heard a very interesting presentation by Detective Inspector Michael Murray and Detective Sergeant Lorraine Stack on the work being done in the special unit. They are obtaining a great deal of specialist information on how best to help families where domestic violence is a problem, and such units should be developed all over the country by the Garda Síochána.

The fact that women under report violence is well known. The Minister's statistics were interesting. They indicated that many women go as far as requesting a barring order but do not follow through in the courts, and there could be a whole range of reasons for this. We need to give more support to women who do not follow through but who clearly need counselling and support.

Another statistic relates to the Women's Aid national helpline which was set up in 1992. To date, that has received an astonishing 14,537 calls from women. These statistics give us a rather frightening glimpse of the reality for women in Ireland. It is often asked why women do not leave. Sometimes it seems obvious that if a woman has experienced that level of violence she should leave the home but women find it difficult to do so, for myriad reasons. If we want to help such women and children a wide range of issues must be tackled.

A study of women who experienced domestic violence carried out in London showed that 27 per cent said they could not leave because of economic dependence. That is the big issue here when one considers that just over 30 per cent of women work outside the home. Many Irish women are economically dependent on their partner and this limits their potential to take decisions about their future. Some 27 per cent said they would not leave because of their concerns for their children and the breakup of the family home and 19 per cent would not leave because they feared further violence. There are many complex factors which prevent women leaving the home. We must look at the economic obstacles which women face as well as offering help to the victim and the perpetrator. If a woman is facing a frustrating battle in the courts for maintenance, has inadequate social welfare or limited opportunity to re-enter the labour market she will find it difficult to leave.

A pilot study was carried out in the accident and emergency department of St. James's Hospital. This should be repeated in other hospitals. The study looked at 83 women who had been admitted to the unit as a result of assault by a partner or spouse. This resulted in 119 admissions in one year because of repeat admissions for assault and para-suicide. The injuries documented were 26 fractures, 40 cases of blows to the head, multiple brusing and attempted strangulation. It is a horrifying list. We need to examine how the health services can respond to this problem and how health professionals can be trained to identify women presenting in this way. We have done a good job over the years, albeit slowly, of encouraging teachers to think about how they could recognise children who have been sexually abused and encouraging communities to think about how to help families and interrupt patterns of sexual abuse. We need to think carefully about how we can alert the community at large, train personnel to recognise the patterns of abuse and respond in an appropriate way.

This is a health issue and will have important implications for the health services. Often it is people in the casualty department who are the first to have an opportunity to identify women who are abused. They are often the first to whom a woman will turn and it is important that they receive the right response, help, options and information. Guidelines should be developed for medical and nursing staff. I call on health boards to take a similar approach to that taken in St. James's Hospital, Dublin and ensure staff have the necessary training to enable them to recognise cases of abuse and create the right atmosphere of trust.

There is widespread public acceptance that violence against women is an abuse but the message must go out that we have zero tolerance for violence against women. I commend Women's Aid for their zero tolerance campaign. It is a strong message which we must ensure is heard in the community.

We are talking about a complex problem which requires further research and education as well as the provision of housing and places of refuge. I congratulate the Minister for dealing with one aspect of the problem and putting in place a strong legislative framework which will go a long way towards reassuring the victims of domestic violence.

Minister of State at the Department of the Environment (Ms McManus)

I welcome the Bill. Many of us who worked with battered women over the years have been conscious of the shortcomings of legislation. This is a major step forward for women experiencing domestic violence. There is no such thing as a typical victim of domestic violence. Parents can be victims as well as children, men as well as women, cohabiting partners as well as partners. In the past, barring orders could only be granted to protect dependent children or spouses but in an age where more couples are cohabiting and where elderly parents are living with their adult children, neither cohabiting partners nor parents had the protection of a barring order. This legislation recognises the change in the nature of the Irish household and in the nature of domestic violence.

I welcome the protection given to elderly people. We must protect the minority as well as the majority. We are all aware of cases where adult children batten on their parents like leeches, subjecting them to physical, emotional and financial abuse. The legislation is wide-ranging. The most significant point is the inclusion of cohabiting partners. For the first time they will be under the umbrella protection of such legislation. The status of marriage in our Constitution and laws meant that those living in extra-marital relationships were often without equal protection. This Bill is inclusive and extends protection to those who need it.

I am glad the Minister has not only extended the categories of people but has also made provision for granting interim barring orders in emergencies and giving the gardaí and health boards powers in cases where the victim is not in a position to take action.

We all seek refuge in our homes but that is the one place victims of domestic violence cannot seek refuge. The Bill does not pretend to be a solution to the evil of violence in the home but it addresses some of the practical problems facing victims and will be welcomed by the victims of domestic violence and the many commendable people working on their behalf. The legislation can only address the symptoms not the causes and the passage of the Bill will not relieve us of the onus to promote zero tolerance of violence in the home.

The Bill will change the law and help to change attitudes which make such a Bill necessary. Domestic violence is a complex issue. There are many other aspects which need to be addressed, in particular the provision of services for those who are battered, the causes of violence and why men behave the way they do. Organisations such as MOVE which concentrate specifically on violent men address the problem in a particular way and deserve support and encouragement to continue to work with the perpetrators of violence to bring this criminal activity to an end. I hope this feature of domestic life will end in this generation.

Mr. Kenneally

I wish to share my time with Deputy O'Dea.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Kenneally

I congratulate the Minister on bringing forward this very necessary legislation which is long overdue. It is the minimum that people in threatening situations expect. It is claimed in another jurisdiction that a man's home is his castle. While the principle is one to which I subscribe, the language is not. The castle cannot be the exclusive preserve of the dominant partner, traditionally the man, but must be seen as a place where all the family can be safe. It must be the man's woman's and children's home. Unfortunately that is not always the case and too many homes today are ridden by stress, worry and violence.

While stress and worry to a large extent are outside our control, we can and must make the family home a safe haven. What distinguishes a house from a home is the activity that goes on there, the sense of security that people feel and the right to withdraw, pull up the drawbridge and look out at the world from a place of safety and security. If the threat comes from within the home, the home is no longer a castle and the security, love and warmth that should be present cannot exist in such conditions.

We live in a violent society, perhaps not as bad as other countries but we have a legacy of violence particularly in the recent past. The shocking revelations of what went on behind closed doors have demonstrated forcibly that a tier of families have lived silently for the most part with violence as an integral part of their lives. I do not say this in the triumphalist way that many commentators have reported these atrocities. We must accept that the history of domestic violence in this country did not surface until recently. I accept this as a fact and congratulate the courage, dedication and wisdom of those who exposed the scandal, often at great personal cost. As legislators we must ensure that everything possible is done to remove the violence from people's lives.

Women have been the main victims of domestic violence through the centuries, not alone have they suffered but traditionally they have been a buttress between a violent man and helpless children. They were not prepared to admit the true nature of the problem lest it rebound on the children or the family as a whole. The Irish wife suffered silently content to collect her reward in the hereafter. This should not be the lot of anyone in Ireland today and this Bill must bring that about. We must ensure that no one, wife, husband, child, sister or brother, will suffer in silence again and the message that must be sent out clearly is that there is no room for wife or husband beaters, tormenting or neglecting parents and child molester in our society. That may sound unnecessarily harsh, even bordering on the uncharitable, but if we are not to protect innocent people who will?

We, the legislators, can and should empower the courts to move swiftly, decisively and effectively to protect family members at risk while being cautious not to repeat the mistakes made in Cleveland and elsewhere. Hysteria must not take the place of facts and logic and there must be a way of openly reviewing and appealing decisions. I am glad to see provision in the Bill for the greater involvement of the health boards. While the official agencies quite rightly have access to the process, I think it should be extended even further. Very often the only people outside the home who know about the violence and abuse are the neighbours, but they are denied the chance to become involved on a confidential basis.

This is a small country and people may not wish, or may not be emotionally strong enough, to become publicly involved. We cannot let wrongs continue to be perpetrated because of that and it is imperative that the Minister finds some way of guaranteeing confidentiality to people who would come forward with such information. Perhaps this is covered by section 6 (1) which specifies the circumstances in which the health board can become involved.

I recall a case in my constituency where an official, not a health board employee, had information about a husband who was beating his wife. He offered to give that information in court when a barring order was sought but was not allowed by his superiors. If he formulated his information in writing the file could at a later hearing be subpoenaed and his involvement made public, with difficult consequences for him. The wife's evidence was not accepted and through lack of independent evidence the case was thrown out and the wife was sent home to her violent husband. She then had no choice but to leave home, the State having failed her once compounded the wrong by refusing her deserted wife's payments. The law said she had a half share in the family home but did not vindicate her right to live there in peace. This type of wrong must be eliminated and the Minister will have to consider ways in which people may supply information in confidence which can be acted upon. I realise this has inherent dangers and could be abused without proper safeguards.

Until now, people were afraid to report violence in their homes for fear of the consequences. I realise that they could seek a protection order and this is further extended by the safety order. While this is to be welcomed, what protection will be in place for people who are at risk while the order is being processed? They are most vulnerable during this time and their actions will probably draw an even more vicious response at that stage.

The question of refuges and shelters must be addressed realistically. Greater resources are required in this area. I pay tribute to those who have undertaken this work voluntarily — convents had to open their doors at 4 a.m. to shelter a wife and family on the run from an irate drunken husband, and the many organisations that have assisted such people in need. I realise that State funding is given in a good number of cases but often it is pitifully small and the shelters could not survive without voluntary workers. The Minister for Health will have to be more generous. The organisations give value for money and without them a great many more buildings would be necessary. My local refuge caters for many throughout the south-east region and has had to be extended by the provision of an additional house which is a further reflection on society.

Mr. O'Dea

I, too, broadly welcome this Bill, but as my colleagues have said the major problem in this area is the lack of facilities such as refuges for the victims of domestic violence. The Minister will be aware that the provision of accommodation for victims in refuges and shelters is pathetic. That is a reflection on all political parties because domestic violence did not suddenly come upon us. It has been a reality of Irish life for some time.

In dealing with the legislation only we are dealing with one aspect of the problem. The legislation is cost neutral and therefore does not require hard political decisions in the way that allocating the necessary finance to provide refuges and shelters would. The Minister will be aware that there has been a very significant increase in public expenditure since the Minister for Finance announced his budget. This is not a debate on finance and I do not propose to dwell on that aspect but there are many areas of less intrinsic merit where the Government overspent instead of putting a few pounds towards refuges and shelters which are evidently needed.

The Bill is welcome but it deals with only one small aspect of the problem and in many respects, it gets that wrong to a degree. The provisions of the Bill mirror to some extent proposals in the Law Reform Commission's Report on Child Sexual Abuse — LRC 32 of 1990. However, the Law Reform Commission made its proposals in that report specifically in the context of child sexual abuse. This Bill extends barring order legislation generally to other areas, such as domestic violence, welfare and so forth. Drafting legislation which is based on proposals that are designed to deal with a small, narrow area but which extends them to apply generally can often lead to an imbalance in the law.

While I have not had time to study this Bill in great detail, a cursory glance suggests that there are serious defects. The Bill is too narrowly drawn in some areas and too broadly drawn in others. Section 3, which appears to be the main provision and is the reason the Bill is before the House, extends the categories of people who can apply for barring orders. At present only a spouse can apply for a barring order. Section 3 intends to extend the list of applicants to include parents and cohabitees. The first question is obvious and has been asked by Deputy Woods: why are siblings not included?

Cohabitation is a reality of modern Irish life. For a long time it has been recommended that the right to apply for a barring order should be extended to a cohabitee. This legislation proposes to extend this right to cohabitees — that is the main thrust of the legislation — but does so in a most begrudging and restrictive manner. It is no exaggeration to say that the restrictions in section 3 of the legislation will exclude 80 per cent, and perhaps as many as 90 per cent, of cohabitees from the right to apply for a barring order.

The restrictions are twofold. First, in order to apply for a barring order, a cohabitee will have to prove that he or she has resided continuously with the respondent for six of the seven months immediately preceding the application.

It is different in the case of a safety order where the aggregate of six months out of 12 months applies. It is obvious that people can come and go from the family home. It comes as no great surprise to anybody that, in a situation which ultimately leads to an application for a barring order, the people might not be continuously resident in the same house. I am aware of the provision in section 3 (11), but it must be remembered that it is often the respondent who can be missing from the family home.

If the respondent is missing for a few days would that preclude the right of the applicant to apply for a barring order? In other words, what does "continuous" mean in the context of section 3? How can it be proved? What is the position if the respondent simply states that he was missing for a few days or a week or for whatever period is sufficient to make cohabitation non-continuous for six out of the seven months preceding the application? This provision will have to be closely examined.

Second, and more curiously, section 3 (10) appears to run counter to the basis of the legislation. Some couples live together having gone through a ceremony of marriage; others live together without having gone through such a ceremony. Violence can occur in both circumstances. It is right that the victim of that violence should have this remedy available in both circumstances. Section 3 (10) will exclude 80 to 90 per cent of cohabitees from the right to apply for a barring order. It will also restrict a high percentage of parents. Where the cohabitee is precluded by the terms of section 3 (10), can the cohabitee avail of section 6 and call in a social worker to enable the health board to apply for a barring order against the other cohabitee? That will depend on the meaning of the term "aggrieved party" in section 6. If the answer to that question is "yes", the situation is absurd. Can the Minister clearly explain the intention behind this provision?

I wish to refer briefly to interim ex parte barring orders being available on a general basis. That was recommended, after much deliberation and with the most severe restrictions, by the Law Reform Commission in the specific context of child sexual abuse. It is now being extended generally. We must look carefully at the restrictions on its general application. It is a very serious matter for somebody to be removed from their family home without having the right to speak in their own defence. Similar considerations apply in relation to the right to involve the health board in this area of what is essentially private law.

Broadly, I welcome the provisions of this Bill but they will have to be teased out in great detail on Committee Stage.

Minister for Equality and Law Reform (Mr. Taylor)

I thank the Deputies for their general welcome for the legislation and for the informed nature of their contributions. As Deputy O'Dea has pointed out, there are many matters to be teased out on Committee Stage and I will be more than happy to do that.

In recent years a picture of the extent of the problem of domestic violence has emerged through newspaper reports, television programmes and the personal testimony of many victims. This is a limited picture which masks the harsh reality of the silent suffering of the many victims, of which we hear little. Studies have shown that there is a tendency for victims to try to conceal the problem through a feeling of power-lessness, a misguided sense of shame or fear of reprisals. As a consequence, the extent of the problem is impossible to assess fully. However, it is clear from the information which is available that domestic violence transcends social and cultural boundaries, not alone in Ireland but in all countries.

Recent studies also indicate that the primary causes of domestic violence are the power and control which a perpetrator needs to feel over the victim and the extent to which a perpetrator believes he or she can get away with such violence. The first cause — the need for power and control — often stems from traditional social mores governing the relationships between men and women, although in some cases it may, of course, be the result of a specific psychological disorder. Traditionally women were seen as inferior to men and, therefore, subordinate to them. As a society we are gradually becoming more elightened in this regard and our laws more increasingly reflect and recognise women's role in society.

The second identified cause of domestic violence — the extent to which a perpetrator believes he or she can get away with it — has been the focus of a number of legislative measures over recent years. Such measures include legislation on child care, rape, indecent assault, the giving of evidence by spouses and barring and protection orders. The Bill before the House seeks to reinforce those sanctions by amending and extending the existing law on barring and protection orders to ensure that all household members will be protected by the law in a manner appropriate to their needs.

As a result of the limited time at my disposal I cannot deal with all the issues raised. However, I wish to address a number of points. Deputy Woods, Deputy Keogh and Deputy O'Dea referred to the difficulty of barring from the home a respondent with an ownership interest in the home. I am advised that a proposal to bar a respondent, other than a spouse, with an ownership interest in the home on the application of a person with no such interest might not survive constitutional scrutiny, given that a barring order would constitute an infringement on that person's property rights which the State and its laws must respect under Article 40.3 of the Constitution.

This difficulty in relation to cohabitants was recognised in the report of the Second Commission on the Status of Women. It recommended that barring order legislation should be extended to cover cohabitants but only where the person seeking the order is the owner or the tenant of the property. The net effect of this is that, in order to apply for a barring order against a respondent with an ownership interest in the home, the applicant must either be the spouse of the respondent or have an interest in the home which is not less than that of the respondent.

I am aware that this is a matter of concern to Deputies. However, I should point out that household members who are precluded from applying for barring orders will not be left without protection as they will be eligible to apply for safety orders. The full force of the criminal law will also apply in appropriate cases.

Deputies Woods and Keogh raised the question as to why it is that the barring order remedy is being confined to spouses, cohabitants and adult children v. applicant. In the normal course, every person has the right to seek protection through the criminal law or the inherent jurisdiction of the higher courts to grant injunctions. The barring order remedy was introduced to help deal with the problem of violence between spouses. It is a drastic remedy in that a person can be barred from his or her home for conduct which would not constitute a criminal offence. This factor must be taken into account in any attempt to extend the legislation.

The Bill will provide protection for all household members and former cohabitants. The first remedy provided for, the safety order, serves to regulate the behaviour of the respondent without barring him or her from the family home. This remedy represents a vast improvement in the lot of those household members who have not heretofore been covered by this type of legislation.

On top of this, there are special classes of close relationship which have been shown to be particularly prone to domestic violence to which it is proposed to extend the more drastic barring order remedy. Experience has shown that apart from children, spouses, parents of adult children and cohabitants are the main victims of domestic violence. Such persons are being afforded maximum protection as, of course, are their children. I would not accept the suggestion that up to 90 per cent of cohabitants will be excluded by the provisions of the Bill. I am well satisfied that an appreciable proportion of the number of cohabitants affected will be able to avail of the provisions of the Bill.

The role of the Legal Aid Board in dealing with the problem of domestic violence was raised in the course of the debate by Deputy Keogh, in particular, and others. In 1994, the Legal Aid Board gave advice concerning barring orders in 2,362 cases. This illustrates that in many cases, the remedies provided for in the Bill are of little use to victims if they are denied access to the courts through lack of resources. That was one of the reasons I have given such priority to the Legal Aid Board since I assumed office and I have expanded the service significantly.

The Legal Aid Board has always endeavoured to give priority to cases involving domestic violence. In areas outside Dublin, cases involving domestic violence are not put on waiting lists but are dealt with immediately. In Dublin, while such cases were given priority, it has not always been possible up to September 1993 to deal with cases as quickly as the board would have wished.

In September 1993, the private practitioners project was introduced on a pilot basis to deal specifically with barring, custody and maintenance cases in the District Court. The specific aim of this project was to reduce the length of the waiting lists in the various law centres in general and also to ensure that barring order cases in particular could be dealt with promptly.

In Dublin, the project operates from Aston House and is confined to the conduct of cases for maintenance, barring and custody orders in the District Court. An evaluation of the effectiveness of the pilot project has been undertaken and consideration is being given to the form that a private practitioner service might take in the future.

The role of the Garda in dealing with the problem of domestic violence was also referred to in the course of the debate by Deputy Frances Fitzgerald and others. In April 1994, the Garda Commissioner issued new directions on domestic violence which, inter alia, state that the power of arrest should be exercised where possible and the offender charged in cases of domestic violence. In addition, the Garda domestic violence and sexual assault unit was set up in March 1993 in the Dublin metropolitan area. It is staffed by gardaí who are highly trained and experienced in dealing with domestic violence and sexual assaults. The functions of the unit include overseeing the investigation of offences of domestic violence and ensuring that enforcement practices throughout the country on barring orders are carefully examined and standardised. Outside the Dublin metropolitan area, the Garda authorities have designated an officer in each of 18 divisions to have an overall and consistent approach to domestic violence cases.

There exists a problem relating to powers of arrest where there is no barring order in force, a problem which is being addressed in this Bill. In general, the present common law powers of arrest apply only where a felony, as opposed to a misdemeanour, is being committed. The vast majority of violent crimes in the domestic violence area are, in fact, misdemeanours. Consequently, while gardaí are empowered to proceed by way of summons, they are not empowered to effect an arrest without a warrant. Section 18 (2) of the Bill empowers gardaí to arrest without warrant in the case of the more serious forms of assault which are presently classified as misdemeanours, that is to say, assault occasioning actual bodily harm and assault occasioning grevious bodily harm. It should be noted, of course, that these new powers only apply in the context of domestic violence.

In this context, it is important to note that actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be an injury of a permanent nature nor amount to what would be considered grevious bodily harm. In this regard, it should also be noted that the courts have held that an assault causing an hysterical or nervous condition is tantamount to an assault occasioning actual bodily harm on the grounds that an injury to the state of a person's mind can constitute actual bodily harm.

In general terms, gardaí may only enter a person's home to effect an arrest against the wishes of the owner in the absence of a warrant where (a) they have reasonable grounds for suspecting that he or she has committed a felony and (b) that they have specific statutory authority to enter. In DPP v. Gaffney in 1987 it was stated per Henchy J. that a statutory power of arrest does not confer a right to enter a dwelling to make the arrest unless a power of entry is expressly authorised for this purpose.

It is proposed, therefore, to explicitly empower the gardaí to enter any place where the member reasonably suspects the perpetrator to be in order to effect an arrest. The place in question need not necessarily be the family home. It could, for example, be a neighbour's or relatives' house.

During the course of this debate, Deputy Keogh referred to the delay in the hearing of court applications for barring orders. The maximum delay in the hearing of District Court applications for barring orders in the Dublin metropolitan district is six weeks. However, attempts to reduce the waiting period are made in circumstances of particular need. The Government has also given a commitment to strengthen the family courts and in this context, the report of the Law Reform Commission on family courts is awaited.

Reference was also made by Deputies Woods, Keogh Kenneally and O'Dea to the funding of women's refuges. As Deputy O'Dea pointed out, these, and extensions of them, have been badly needed for a long time. Deputy O'Dea was a Minister for some time in the Department of Health——

Mr. O'Dea

A junior Minister.

Mr. Taylor

——and it is surprising, therefore, that in making these comments, he did not avail of the opportunity he had while a Minister in the Department of Health——

Mr. O'Dea

I could not persuade Deputy Howlin.

Mr. Taylor

——to provide these refuges, which he admits have been needed for a long time. He now complains about the Government, which has only been in office for five months, not providing them. Last year, the Department of Health——

Dr. Woods

I helped them from the Department of Social Welfare.

Mr. Taylor

——through the health boards, gave more than £1 million for services for the victims of domestic violence and 90 per cent of the funding for women's refuges throughout the country now comes from the health boards.

It is the Minister for Health's intention that continued progress will be made in this important area during 1995. As a first step, he has approved the payment of grants, through the health boards, of £55,000 towards the running costs of the freephone national help line service provided by Women's Aid and £20,000 to the National Federation of Refuges for Abused Women and Children to support their co-ordinating activities.

Deputies Woods and Keogh referred to the role of counselling in dealing with the problem of domestic violence. In 1994, total funding of £750,000 was provided for marriage counselling organisations; an increase of 150 per cent on the 1993 funding and this year the funding will be of a similarly high level. A total of 58 organisations will benefit from Exchequer funding this year.

As Deputy Woods rightly mentioned, the problem of domestic violence must be dealt with in a flexible way. We must recognise that even where the civil law offers protection at present in cases of interspousal violence, many victims do not avail of it. They continue to suffer in silence for a variety of different reasons, including fear of the wrath of a violent partner.

Deputy Keogh made the point that it should be possible for ex parte applications to be made in serious cases while Deputy O'Dea expressed some reservations about that. It is important that in exceptional cases there be the power to make an ex parte barring order. It has been written by many social workers that a failure to do so and a failure to give powers to the Garda Síochána to arrest without warrant will in some cases result in the loss of life of a woman or child.

An Ceann Comhairle

It is now 7 o'clock and I am required to put the following question in accordance with an Order of the Dáil of this day: "That the Bill be now read a Second Time".

Question put and agreed to.