Vol. 459 No. 4
I move amendment No. 1:
In page 5, line 5, to delete "emotional and mental" and substitute "and psychological".
This amendment substitutes the word "psychological" for the words "emotional and mental". It means that the word "welfare" as used in the Bill will be defined as including psychological welfare. The point at issue was raised by Deputy Woods on Committee Stage and I am happy to address the matter now by way of an amendment.
I am naturally pleased that the Minister has recognised the value of the amendment we tabled on Committee Stage. A barring order is a very severe remedy from the point of view of the person who is barred because a breach would be a criminal offence. Consequently, we felt it was important to be precise in this regard. There can be emotional responses which stem from the difficulties of marriage breakdown, and this amendment deals with that issue by specifying the psychological aspects and removing the term "emotional" which was in the original section. Welfare includes the physical, emotional and psychological welfare of the person in question. That is a valuable improvement and I thank the Minister for making it.
We now come to amendment No. 2 in the name of Deputy Helen Keogh. I observe that amendment No. 21 is related. I suggest, therefore, that both amendments be discussed together.
I move amendment No. 2:
In page 5, between lines 6 and 7, to insert the following:
"(2) In this Act, where the context so requires, a reference to a spouse includes a reference to a person who is a party to a marriage that is void or voidable or has been annulled in the State or that has been dissolved or annulled under the law of a country or jurisdiction other than the State.".
This is to ensure that there is no loophole regarding protection and that the same protection will be extended to someone whose marriage is dissolved or annulled in another state.
At the time the Minister agreed there was a difficulty and said he would examine the issue before Report Stage. In a reference to the Family Law Act, 1995 the Minister said it did not cover spouses who have a domestic or foreign decree of annulment of marriage. Did the Minister examine that because I do not see any amendment relating to it? He said at the time that it might require different legislation.
As I indicated on Committee Stage when commenting on similar amendments tabled by Deputies Keogh and Woods, these amendments lack precision. For example, the amendments could mean that where a party to a marriage obtains a foreign divorce, he or she could seek a barring order against the other party regardless of whether such foreign divorce is recognised in the State. One purpose of these amendments is to provide that where a foreign decree of divorce is entitled to recognition in the State either party may seek a barring order against the other. The recently enacted Family Law Act provides for the granting of barring orders and protection orders in such cases. The purpose of section 21 of the Bill, as amended in Committee, is to ensure not alone that this will continue to be the position but also that the courts will be empowered to grant safety orders and interim barring orders in such cases.
The reason the matter is dealt with in the Family Law Act, as opposed to this Bill, is that the situation of a person with a foreign divorce decree is more complex than that of the classes of person covered by this Bill. The Family Law Act provides that the court must first hear an ex parte application to ensure that it is well founded and that the party satisfies certain jurisdictional rules. This is to ensure that valuable court time is not wasted on spurious applications from persons with foreign divorce decrees which do not meet the criteria for recognition in Ireland. In addition, the Act provides that where either spouse remarries, the remedy is not available. The court must also take a number of other factors into account such as the length of time which has elapsed since the foreign divorce was granted and the extent to which the order is likely to be enforceable.
A question also arises in relation to the position of spouses who have a domestic or foreign decree of annulment of marriage and wish to obtain orders under the Bill. I examined the matter further since Committee Stage. It is not straightforward and I am of the view that separate legislation covering nullity in this and other respects would be the more appropriate and safest way forward. In the circumstances, I am unable to accept these amendments.
Our amendment related to barring orders as distinct from safety orders but the position is otherwise similar. The Family Law Act provides for certain barring orders in these instances and the Minister undertook to examine the question before Report Stage. It is clear from the Minister's reply that he considers the matter to be quite complex and would rather deal with it in the context of annulment. This may well be the case and in that event we await the annulment legislation. Can the Minister give us any indication as to when that legislation will come before the House?
We are all conversant with the procedure at this time but if the Minister wishes to interject by way of information, he may do so.
Unfortunately, I cannot give any indication of timing in that regard.
Can the Minister give any indication? Will it be in the near or distant future?
The only thing I can say is that it will not be in the short-term.
The Minister referred to the necessity for legislation on nullity and, obviously, this matter can only be dealt with in that context. There seems to be a delay in the publication of legislation at present but this is an important matter. The Minister said the legislation will not be forthcoming in the short-term but I ask that it be available in the medium rather than long-term. Considering that this is an important detail of the Bill, I ask that he be disposed to address it soon.
Amendments Nos. 3, 4, 18 and 20 are related. Amendment No. 19 is an alternative to amendment No. 18 and I suggest that we discuss amendments Nos. 3, 4, 18, 19 and 20 together. Is that agreed? Agreed.
I move amendment No. 3:
In page 5, lines 28 to 30, to delete all words from and including "during" in line 28 down to and including "order" in line 30 and substitute "or is the parent of a child in common with the respondent".
The section, which relates to safety orders, would, if the amendment is accepted, provide that "the applicant" is a person who is not the spouse of the respondent but has lived with the respondent as husband or wife for a period of at least six months in aggregate or is the parent of a child in common with the respondent. This would allow a co-parent of a child to apply, regardless of the length of time the parties have lived together.
The amendment recognises that common parenthood in itself creates a unit in which domestic violence may surface. It also allows the parent of a dependent child to seek a safety order to protect the child against the other parent. There is currently no provision in the Bill which allows that. We are concerned that a parent in this instance would have the same protection as other parents. We discussed this matter on Committee Stage and the Minister is familiar with the arguments. We believe it is an important issue.
The Minister has gone some of the way towards meeting our concern by making two changes which are intended to broaden the category of non-spouses or co-habitees who would be entitled to apply for a safety order. The first of these removes the requirement that the couple must have lived together for six of the previous 12 months and requires only that they have lived together for at least six months. This recognises the unstable nature of many violent or dysfunctional relationships where one partner may come and go from either a shared home or his partner's home. The length and stability of a relationship is something a court may take into consideration when deciding to grant the order but should not be used as a threshold to exclude people from protection.
The other matter is that of the co-parent of a child. The parent should be able to invoke a safety order as a means of protection. The amendment would allow co-parents of a child who do not cohabit or satisfy the criteria for cohabitees, for example, lone parents, to apply for a safety order. It would also allow for a safety order to protect a child without involving a health board, in other words, the mother, as a lone parent, could apply. This could be important for mothers who might otherwise be seen as incapable when the health board intervened. Has the Minister given further consideration to this issue? Why does he not consider it necessary to extend protection to such parents?
We are rehearsing many of the arguments made on Committee Stage. This is an important and valid amendment although it may be a little convoluted. My amendment seeks to insert: "is a person in relation to whom another person is a dependent person, and that other person is also a dependent person of the respondent, or.".
Women's Aid recently published research which is valuable when dealing with domestic violence which is endemic in society. That organisation, among others, considers it important that any person who has a child in common with a person who is abusing her ought to be able to apply for a safety order under section 2 or a barring order under section 3. The amendment is designed to allow any person who has a child in common with an abuser to apply for an order and uses the concept of "dependent person", not "child". The Minister stated on Committee Stage that the breach of a safety order gives rise to serious consequences and would render a person liable to arrest in respect of behaviour which might not otherwise constitute a criminal offence. I am concerned about the message that might give to people. We must emphasise the seriousness of breaches of such orders. I do not know if we should use that argument in relation to restrictions on safety orders.
It is a fact.
I know but we should not allude to that given the seriousness of the matter. The Minister stated the amendments would allow the right to apply for a safety order without restriction. That interpretation is too wide. It is important to acknowledge the different types of relationships that exist. Those who are not living together should be able to apply for safety and barring orders. There must be a way around it and the Minister should examine the amendments further.
I do not object to grouping amendments but sometimes the precision of individual amendments tends to be lost when they are grouped. It might have been more useful to deal with the amendments one at a time.
I did not support these amendments on Committee Stage. One effect of amendment No. 3 would be to fundamentally change the requirement in the Bill that cohabitants live together for six months in aggregate in the period of 12 months immediately prior to the application for a safety order. The amendment would mean safety orders would be available to cohabitants who live together at any time for a period of six months in aggregate. Former cohabitants who had split up many years ago could apply for a safety order on that basis.
Breach of a safety order gives rise to serious consequences. It would render a person liable to arrest in respect of behaviour which might not otherwise constitute a criminal offence. That is the legal position. A respondent may be arrested without warrant and, for the purpose of arrest, the gardaí may enter any place where the respondent happens to be, whether in the home or any other place. It is important that these powers, which are far-reaching even in the context of domestic violence, should be available only in very specific circumstances.
Another effect of the amendment which would also arise in the case of amendment No. 4 is that it would allow all persons who have a child in common, even where they do not reside together, to apply for a safety order. This would depart from the main purpose of the Bill which is to protect persons residing together. Amendments Nos. 18 and 19 propose that the period of living together by cohabitants should be six months in aggregate within the 12 months period immediately prior to the application for a barring order. I introduced an amendment on Committee Stage which provided that the period of living together must be six months in aggregate during the period of nine months immediately prior to the application for a barring order. As I stated then, I am advised that stricter provision is necessary in the case of a barring order than in the case of a safety order for the reason that giving power to the court to order a cohabitant from his or her home runs the risk of constitutional challenge. To minimise the chances of success of any such challenge the provision needs to be operated under strict conditions. I regret that I am not prepared to go any further in this regard.
Amendments Nos. 18 and 20 would allow a person who has a child in common with another person to apply for a barring order against that other person without the need to establish that they were residing together at any time. A provision on those lines would not cohere with other essential conditions in the Bill to the effect that parties must be in some form of domestic relationship if they are to avail of the measures in the Bill. I oppose amendments Nos. 3, 4, 18, 19 and 20.
I accept that the amendments are being discussed together but it complicates matters. Amendments Nos. 3 and 4 deal with safety orders whereas amendment No. 18 deals with barring orders. As the Minister stated, there are different concepts in relation to barring orders. Crossing from one area to the other creates difficulties in considering fully the points that need to be raised.
We want to ensure that a safety order is available where it is needed in practical terms. The Minister has a difficulty with this because he wants to ensure that the cohabitees will have been living together over a certain period. He brought in an amendment to improve the position and we recognise that but he has not gone far enough.
Amendment No. 18 proposes to reduce the threshold of cohabitation from six out of the previous seven months to six out of the previous 12 months and introduces the concept of a co-parent being allowed to apply without any requirement of cohabitation. People experience practical difficulties in this area. On Committee Stage we acknowledged that barring and safety orders may have serious consequences, but amendment No. 3 would allow a degree of protection to lone parents under a safety order. While, in practical terms, the position of lone parents is recognised in social welfare and family law, we must recognise that one in five children are the children of lone parents and when account is taken of desertion and marriage breakdown the figure is much higher. Therefore, under the legislation a substantial number of families will not benefit from the protection of safety orders. We support the legislation and the introduction of safety orders but the Minister should have gone further. I do not believe it would have had the dire consequences suggested by the Department.
I move amendment No. 4:
In page 5, between lines 30 and 31, to insert the following:
"(iii) is a person in relation to whom another person is a dependent person, and that other person is also a dependent person of the respondent, or".
Amendment No. 6 is an alternative to amendment No. 5. I suggest, therefore, that we discuss amendments Nos. 5 and 6 together if that is satisfactory? If amendment No. 5 is lost, amendment No. 6 cannot be moved.
I move amendment No. 5:
In page 6, to delete lines 19 and 20 and substitute "enter, approach, watch or beset any place where the applicant or that dependent person resides, works or attends for educational purposes or any other place the court may specify,".
This amendment proposes that we should be more precise about the areas where the applicant or that dependent person may be protected. Women want us to outline precisely the areas where they may be harassed or threatened. The Minister was not very forthcoming in this regard on Committee Stage, but he said he would consider whether it was necessary to include a specific provision to meet our request.
Amendments Nos. 5 and 6 are closely related. Amendment No. 6 proposes to prevent an approach or entry to a place "where the applicant or that dependent person resides, is not residing or happens to be" and that covers the workplace. This matter was discussed at length on Committee Stage and we requested the Minister to table an amendment on Report Stage to meet the many genuine concerns about respondents entering, approaching, watching or besetting applicants. He said it would be difficult to deal with the matter without affecting people's freedom of movement. Respondents can intimidate applicants outside their place of residence, for example, at their place of work, and this can be done by telephone or otherwise. We are seeking the introduction of a safety order designed to ensure that people cannot be molested or harassed in any form. What does the Minister propose to do in this regard?
Amendment No. 6 is a repeat of a Committee Stage amendment. It would allow the court under a safety order to prohibit a respondent from approaching, watching or besetting the applicant at any place where the applicant happens to be. I remain of the view that the Bill is already framed in a way which meets most of the circumstances in which a person might need protection outside the home.
There is provision in section 2 (2) (a) to the effect that a person may be directed not to use "or threaten to use violence against, molest or put in fear the applicant" no matter where the applicant is at the time. In addition, the court may make a safety order subject to such exceptions and conditions as it may specify. That provision would meet many of the situations which are, apparently, intended to be covered by the amendment in the name of Deputy Woods.
Amendment No. 5 in the name of Deputy Keogh is also a repeat of a Committee Stage amendment. It is more specific in that places where persons are intended to be protected include places where the applicant works or attends for educational purposes, or any other place. The powers the court already has under the Bill are sufficient to deal with each case as may be appropriate.
Other Deputies in the course of earlier debate on these amendments raised concerns about circumstances in which the applicant and respondent may work in the same place of employment. I also have some reservations in that connection. In the circumstances with regret I am not in a position to support these amendments.
These amendments were discussed at considerable length on Committee Stage. We are all agreed that we are trying to tie down so far as possible the criteria to be applied in considering applications for safety and barring orders. The Minister said he would reconsider what we were trying to achieve. While there is a need to provide protection where the two persons concerned work in the same firm I am concerned to provide as much reassurance as possible to women in circumstances in which safety and barring orders may be granted. In this regard my amendment is both reasonable and helpful. There must be a way around the difficulties that would arise as a result. It is not beyond the competence of officials within the Department or the parliamentary draftsman to come up with a solution. I am disappointed, therefore, that we have been unable to tie down the criteria a little bit more.
I thank the Minister for his clarification; it may be workable.
Amendment No. 7 is consequential on amendment No. 8. Amendments Nos. 12, 15, 29, 32, 33, 34, 36, 38, 41, 42, 45 and 48 are related. Amendments Nos. 10 and 11 are consequential on amendment No. 12. Amendment No. 28 is consequential on amendment No. 29. Amendments Nos. 30 and 31 are consequential on amendment No. 32. Amendment No. 37 is consequential on amendment No. 38. Amendments Nos. 39 and 40 are consequential on amendment No. 41. Amendment No. 44 is consequential on amendment No. 45. Amendments Nos. 46 and 47 are consequential on amendment No. 48. It is proposed, therefore, to take amendments Nos. 7, 8, 10 to 12, inclusive, 15, 28 to 34, inclusive, 36 to 42, inclusive, and 44 to 48, inclusive, together by agreement. Is that agreed? Agreed.
I move amendment No. 7:
In page 6, line 30, after "section," to insert "or".
The purpose of my amendments is to ensure that all persons who do not have a mental or physical disability are treated in a similar manner under this Bill once they attain the age of majority, and to remove certain anomalies which have arisen in this regard. I promised Deputy Woods on Committee Stage that I would consider certain matters pertaining to such young persons and these amendments are the result.
Amendment No. 15 provides that a section 2 safety order which has been made for the benefit of a dependent person will be automatically discharged when that person ceases to be a dependent person, that is, when he or she attains the age of 18 in normal circumstances. The amendment is necessary because children who are 18 years of age or older children may not come within the category of persons who can apply for a safety order. The objective of the amendment, therefore, is to ensure that the one set of rules applies to children who have attained the age of majority and who are not suffering from a physical or mental disability.
Amendments Nos. 7, 8, 10, 11 and 12 are consequential amendments which also involve section 2. On the basis that a safety order will be automatically discharged when a dependent person ceases to be a dependent person then provisions concerning the variation of such orders are not necessary. The effect of these amendments is to delete those provisions in section 2.
Amendments Nos. 28 to 34, inclusive, and 36 to 42, inclusive, make similar amendments to the sections dealing with barring orders, interim barring orders and protection orders. These amendments include amendments Nos. 29 and 32 in the name of Deputy Woods which appear to have the same objective as my amendments.
Amendments Nos. 44 to 48, inclusive, are consequential on the above amendments and relate to section 13 which provides for the discharge of orders. There is no longer a need to provide for the discharge of orders on the application of a person who ceases to be a dependent person in view of the fact that such orders will be automatically discharged. Amendment No. 48 in the name of Deputy Woods appears to be tabled for the same purpose.
I thank the Minister for recognising the arguments made on Committee Stage and making these changes. I do not think Deputy Keogh knew what was coming when she protested earlier, politely admittedly, about the fact that amendments Nos. 3, 4, 18, 19 and 20 were being taken together.
It has been agreed to take 25 amendments together in this instance.
All the amendments are related and, therefore, agreed as the Minister has accepted the arguments made on Committee Stage. As he has acceded to our requests there is no need to discuss the issue any further other than to thank him for accepting the principle——
On the contrary, I thank the Deputy for bringing the matter to my attention.
I thank the Minister. We welcome the amendments.
I move amendment No. 8:
In page 6, to delete lines 31 and 32.
I move amendment No. 9:
In page 6, line 34, to delete "applicant" and substitute "application".
I move amendment No. 10:
In page 6, line 40, after "order," to insert "or".
I move amendment No. 11:
In page 6, line 42, to delete "or".
I move amendment No. 12:
In page 7, to delete lines 1 to 3.
Amendments Nos. 13 and 14 are related. It is proposed, therefore, to take both amendments together by agreement.
I move amendment No. 13:
In page 7, lines 11 to 13, to delete all words from and including "expire" in line 11 down to and including line 13, and substitute "expire three years from the date of its making or on the expiration of such other period as the court may provide in the order not exceeding the period of five years.".
Amendment No. 13 arose from the Committee Stage debate. It is proposed that the safety order should last five years, unless the court specifies a shorter period, and can be renewed for a further five years. We felt that this period, which could last for up to ten years, was too long a duration for a safety order which has, as the Minister stated earlier, very serious consequences for the respondent because a breach of such an order represents a criminal offence.
This amendment is designed to provide that the standard length of a safety order will be three years — which would be the same as the new barring order — but permits the court the discretion to make an order of up to five years in very severe cases. The order can also be renewed. We were concerned to some extent about this issue. A three year period, with the option to extend if necessary, would be more appropriate for safety orders. People have expressed concern that once the safety order is applied a register will be kept at the local Garda station and the individual involved will become a "marked person". It is important that the length of safety orders be flexible in a way which is not unduly harsh. Consequently, we suggest that the length of safety orders should be the same as that of the new barring orders, namely three years. However, the court will retain the option to lengthen safety orders if a case warrants such action.
We are seeking to ensure that women are protected in these situations but not make it less likely that they will succeed in obtaining safety orders. I accept the point, made by the Minister on Committee Stage, that the five year period is appropriate and that the court retains discretion to decide on a shorter period. However, we believe that, in practice, five years would become the norm whereas it would be sufficient to provide — within this legislation — a standard length of three years for safety orders with an option to extend if necessary. That is the purpose of the amendment. I am interested to hear if the Minister has proceeded further with his consideration of this matter.
This is one of the few amendments tabled by Deputy Woods with which I do not agree. Perhaps I am becoming somewhat draconian as a result of my knowledge of domestic violence. My opinion that the five year period is correct has been reaffirmed. I appreciate the points made by Deputy Woods but, in this instance, I support the Minister's approach rather than that of the Deputy. I understand the reasons for the Deputy's amendment but I would prefer that the legislation remain unaltered in this regard. In fact, I might be inclined to have the duration increased.
These amendments would reduce the duration of a safety order, if granted by the District Court, from five years to three years, except in very serious cases where the court could extend the period by a further two years. I did not support these amendments on Committee Stage. I thought they were unnecessary and remain of that view.
Under the Bill, it will be open to the court to deal with each case according to the circumstances. The period of duration of an order is not fixed. The District Court can make an order for any length of time short of five years. It will also be open to an applicant or respondent to seek variation or discharge of orders made by the court. In my view, there is no need to prescribe in the Bill a period of duration which is the same as a barring order. There are different types of orders and the Bill reflects that.
I would not agree with Deputy Woods' statement that the five year period would become the norm. In my view the five year period would not become the norm, it is the maximum permitted duration under the terms of the Bill. At present, in barring order applications, for example, where the maximum duration is one year, not all such orders are granted for this period. In many cases barring orders are granted for one, three or six months, or perhaps for only seven days on occasion. The court has discretion in this regard and it can be safely left with that authority which, having heard the particular circumstances in each individual case, can make the appropriate order. I feel that the widest possible discretion should be permitted which is the reason the Bill is cast in this way. For the reasons outlined, I am unable to accept these amendments.
I move amendment No. 15:
In page 7, between lines 24 and 25, to insert the following:
"(7) Notwithstanding subsection (5), so much of a safety order as was made for the benefit of a dependent person shall expire in accordance with such order or upon such person ceasing to be a dependent person, whichever first occurs.".
Amendments Nos. 16 and 17 form a composite proposal and may be taken together by agreement.
I move amendment No. 16:
In page 7, lines 26 and 27, to delete all words from and including "unless" in line 26 down to and including "matter" in line 27.
The purpose of amendment No. 16 is to delete all words from and including "unless" in line 26 down to and including "matter" in line 27. The purpose of amendment No. 17 is to insert the following in page 7, between lines 27 and 28:
"(8) The Court shall not hear an application for a barring order and an application for a safety order concerning the same matter between the same parties at the same hearing.".
It was stated on Committee Stage that the section, as drafted, is intended to prevent the court granting a safety order — the lesser remedy — on an application for a barring order. This is a matter of taking the easy way out unless the applicant has already applied for a safety order. The amendment goes further and prevents the court from considering the application for a barring order and safety order at the same time. In practice, it is likely that most applicants for a barring order will also apply for a safety order in the event that they cannot establish the grounds for the more serious remedy. Since the court is likely to have both applications before it, section 2 (7) may not have the desired effect.
The disadvantage of the proposed amendment is that, if an applicant applied for both orders, two separate hearings would be required. This amendment was withdrawn on Committee Stage to give the Minister an opportunity to consider the issue further for Report Stage. The Minister rejected our views on Committee Stage. The success rate in obtaining barring orders is relatively low. It is likely that most solicitors will advise their clients to apply for both a barring order and safety order at the same time to increase the chance of success. In those circumstances the danger is that the court will take the easier option and make the safety order. The procedure, which would be a simple one, would have to be worked out so that the second application could be heard on the same day if necessary. The Minister is very familiar with the arguments on this issue. I would like to know whether he has given it further consideration for Report Stage and what is his view.
These amendments go against one of the Bill's principal objectives, that of empowering the victim. Under the Bill as it stands a victim or the parent of a victim may have three options. He or she may apply for a barring order, a safety order or both a barring order and safety order. The effect of these amendments would be to remove the third option, leaving the victim with only two options. If a victim wishes to ensure the court does not grant a safety order as the soft option in lieu of a barring order, which it appears the amendments are intended to address, he or she may simply avail of the first option and apply only for a barring order. I am not in favour of the amendment. The section as framed, which gives three clear options to the victims of violence, should remain.
I move amendment No. 22:
In page 7, between lines 41 and 42, to insert the following:
"(d) is a sibling of the respondent (including a sibling by virtue of an adoption of either party under the Adoption Acts, 1952 to 1991) and the respondent is a person of full age who does not have a physical or mental disability to such an extent that it is not reasonably possible for the respondent to live independently of the applicant or any person being `kindred' within the meaning of section 2 (1) (a) with whom the applicant and respondent are both residing.".
The effect of this amendment would be to allow relatives of any kind living with a respondent the right to apply for a barring order. It appears the applicant, regardless of his or her age, could include any child of the respondent. This amendment is identical to an amendment tabled by Deputy Woods on Committee Stage. As I stated then, the amendment lacks precision. What does the word "sibling" mean? Is it intended to refer to relatives of whole blood, half blood and so on? As framed, the amendment would allow a young child to apply for a barring order whereas the Bill as it stands allows a parent or health board to apply on behalf of a young person. Where a young child is concerned, that is the only workable way to proceed to protect their interests properly.
There are potential difficulties with the proposal to allow, say, a brother to bar another brother from the home. The difficulty is that there may be permutations and combinations — for example, what would be the position if one or both parents live with those persons? Should they have a say in the matter? To what extent should the fact that only some of those parties have rights of ownership in the home be a factor? I am satisfied that any extension of the drastic barring order remedy to the categories of persons provided for in this amendment is not a practicable proposition. For the reasons I have given I regret I am not in a position to accept the amendment.
The purpose of this amendment is to cover cohabiting siblings and recognise that the problem of violent adult children living at home affects not only their parents but also any other siblings living at home. For example, in the case of a 20 year old son on drugs or drink, the parents may apply for an order, but the siblings may also be affected. It would also apply in circumstances where the parents are dead. The Minister said it would be very difficult to cover those circumstances. I reluctantly accept his advice in that regard and will not press the amendment.
I move amendment No. 23:
In page 8, line 6, after "entering" to insert "or approaching".
As the Minister said on Committee Stage, there is adequate provision in the Bill to cover this matter and I will not press the amendment.
I move amendment No. 24:
In page 8, line 23, after "resides" to insert ", works or attends for educational purposes, or such other place as the court may specify".
This amendment is similar to other amendments whose purpose is to identify specific guidelines. The Minister did not accept the amendment on Committee Stage because he thought it was too wide. It is up to the court to specify the parameters in that regard. Why does the Minister believe the wording is too wide? He said he was not favourably disposed towards the amendment but that he would consider it for Report Stage. Obviously he has not changed his mind since then. What is his objection to the amendment? Does he believe it is not sufficiently precise?
This amendment would be of similar effect to amendments Nos. 5 and 6 proposed by Deputies Keogh and Woods in relation to safety orders. The amendment proposes that a respondent under a barring order may be prohibited from attending at places where the applicant works or attends for educational purposes. Subsection (3) (a) of section 3 already provides that under a barring order a person may be directed not to use or threaten to use violence against, molest or put in fear the applicant, no matter where the applicant is at the time. In addition, the court may make a barring order "subject to such exceptions and conditions as it may specify". Those provisions should meet the circumstances which are apparently intended to be covered by the amendment from Deputy Keogh. The section is framed in a way which meets all possible situations. It does so on lines similar to the 1981 Act which the Bill will replace. I do not think that a place of employment or education should be singled out for special mention and therefore oppose the amendment.
I move amendment No. 25:
In page 8, between lines 23 and 24, to insert the following:
"(d) communicating with, or attempting to communicate with, the applicant or any dependent person by means of telephone without the express permission of the applicant;".
The purpose of this amendment is to allow the courts to impose a condition preventing nuisance phone calls or continual harassment of applicants by phone and acts which might not otherwise constitute a breach of a barring order since they do not involve the respondent being in the vicinity of the applicant's premises. The Minister said that the Bill as it stands gives wide powers and may cover such circumstances.
We now come to deal with amendment No. 26, amendment No. 27 is an alternative and amendments Nos. 26 and 27 will be taken together by agreement.
I move amendment No. 26:
In page 8, to delete lines 26 to 44 and substitute the following:
"(4) In considering an application under this section in respect of a person who is an applicant by virtue of paragraph (b), (c), (d) or (e) of subsection (1) the Court shall have regard to the ownership of the place where the applicant and any dependent person reside and if the respondent has a legal or beneficial interest in that place and the applicant has no such interest or if, in the opinion of the Court, the applicant's interest is considerably less than that of the respondent, then the court shall not grant the application unless it is of the view that in all the circumstances, including the respective needs and resources of the parties and the needs of any dependent person residing in that place, it is just and equitable to do so.".
The purpose of the amendment is to ensure that a person who has less than 50 per cent ownership in a property would still have a right to apply for a barring order. Section 3 (4) provides that a cohabitee may not secure a barring order against a partner if that partner owns the premises in which they reside or owns a greater share of it than the applicant. That provision is unfair as it links a person's right to be protected against serious domestic violence to his or her ownership of property and makes a financially dependent person even more vulnerable. The proposed amendment alters section 3 (4) to the effect that a court would no longer be prevented from making a barring order in these circumstances. The court would be obliged to consider the ownership of the property in which the parties reside and would only grant the order if in all the circumstances it is just to do so. In particular, a court should consider the needs and means of both parties and whether there are dependent children. Presumably, the subsection, as drafted, is intended to respect a respondent's property rights which are guaranteed under the Constitution. The amendment gives a court the flexibility to balance the respondent's property rights against the constitutional right to bodily integrity of the applicant and children, a protection from physical attack.
We ask the Minister to accept the amendment although we appreciate it may pose constitutional difficulties. Given that there is a balance of rights in the Constitution, we consider that this amendment meets the required balance and the Minister should accept it. We are concerned that the Minister's proposal could exclude a substantial number of cases in which cohabitees would be affected. The Minister said that, in practice, about one third of respondents do not turn up, that he would find it very difficult to deal with this problem related to property, but that he would refer the matter to the Attorney General to ascertain if our suggestion would meet the requirements. We tabled the amendment on Report Stage to hear the Minister's views.
This is the most important amendment tabled to the Bill. My amendment is more particular, but it seeks to achieve the same objective as Deputy Woods's amendment. I appreciate the Minister's difficulty in accepting the amendment. He may feel further constrained by the fact that other legislation was rejected by the Supreme Court on constitutional grounds. I framed my amendment in such a way as to tiptoe through the Constitution. It is terribly important that the provision in the amendment is included in the Bill and that we do not allow property rights to be considered more important than the bodily integrity of women and children. We are all on the same side on this issue and I tabled my amendment as we need to strike a proper balance in the Bill. There are sufficient protections for property rights in the Constitution and this amendment can deal with the difficulties stated by the Minister.
We have seen the devastation caused by domestic violence and read in the newspapers daily of its increasing incidence. It may be the case that the position is not disimproving, but that more women are braver and more inclined to bring such cases to court. We need to send a strong message to those people in the legislation passed through these Houses. This is an important matter. I will not go into the detail of the amendment as it was covered on Committee Stage. In this legislation we must strike a proper balance between people's property rights and the integrity and safety of women and children, as the property rights of men in the main are often considered more important.
Difficulties arise in cases where property has been signed over to the respondent and the manner in which such cases are dealt with. I appreciate the Minister accepts this is a vexed issue, but there is a view that he has been unduly cautious in his response. I ask him to accept the amendment.
Amendments Nos. 26 and 27 are similar to amendments tabled by Deputies Woods and Keogh on Committee Stage. I indicated then that the advice available to me is that amendments on the lines proposed, which would allow a respondent other than the spouse with an ownership interest to be barred on the application of a person with no such interest or with a lesser interest than the respondent, might not survive constitutional scrutiny. That advice still holds good.
Moreover, a newspaper report on our Committee Stage discussions indicated that the Bill was somehow flawed because the barring order provisions did not extend to certain categories of persons who had no ownership rights. However, the newspaper report was flawed, not the Bill, because it failed to understand that the provisions of the Bill must be framed to comply with provisions in the Constitution concerning rights of ownership of persons. A Bill should not be described as flawed if it is framed to comply with our constitutional requirements. Is it not strange then to find a report which states the Bill is flawed because it does not deal with something which would, in effect, be unconstitutional?
I promised on Committee Stage to consult further with the Attorney General and have done so but the position is the same. In the circumstances, I cannot accept these amendments, the effect of which would run a serious risk of infringing the provisions of the Constitution.
One of the points which arise in this is that the approach being taken by the Minister could be seen as a discrimination against married people in that the married owner of property can be barred while the unmarried owner cannot. If the couple is cohabiting, the property rights come into play and become dominant.
That is a flawed view.
We suggested the Minister should give serious consideration to this and he told us he did. It is a major issue and one on which we find it difficult to agree with the advice of the Attorney General. The Minister made a suggestion on Committee Stage that he might refer this to the constitutional review group because it is a fundamental issue in relation to the balance between property rights and the right to bodily integrity in the Constitution. Perhaps the Minister might do that as one means of having it investigated further.
We are concerned about this because we feel it could mean a large number of cohabitees could be removed from the protection of the barring orders. Hence, we have regarded it as an important issue. We believe amendment No. 26 is constitutional and feel it should be pressed.
I move amendment No. 27:
In page 8, to delete lines 26 to 39 and substitute the following:
"(4) In a case in which application is made for a barring order in respect of the place where the applicant or dependent person resides, and the respondent has a legal or beneficial interest in that place, but the applicant has no such interest or has an interest which, in the opinion of the court, is less than that of the respondent, the court may make a barring order in respect of that place where, in the opinion of the court, the safety or welfare of the applicant or dependent person so require.
(5) In any application to which subsection (4) applies, the court shall, in deciding whether or not to grant a barring order, and the duration of such order, have regard to all of the circumstances of the case, and, in particular:—
(a) the nature and duration of the relationship between the parties;
(b) the parties' respective interests, if any, in the property;
(c) the financial resources of the parties; and
(d) the safety and welfare of any dependent person of either party.".
I move amendment No. 28:
In page 9, line 3, after "section," to insert "or".
Amendment agreet to.
I move amendment No. 29:
In page 9, to delete lines 4 and 5.
I move amendment No. 30:
In page 9, line 13, after "order," to insert "or".
I move amendment No. 31:
In page 9, line 15, to delete "or".
I move amendment No. 32:
In page 9, to delete lines 16 to 18.
I move amendment No. 34:
In page 9, between lines 39 and 40, to insert the following:
"(10) Notwithstanding subsection (8), so much of a barring order as was made for the benefit of a dependent person shall expire in accordance with such order or upon such person ceasing to be a dependent person, whichever first occurs.".
I move amendment No. 35:
In page 10, line 5, to delete "an immediate and serious risk of significant harm" and substitute "a serious risk of harm".
Could the Minister show a little empathy in relation to some of the amendments we put forward? What I am trying to do here is say that if there is a serious risk of harm, then action should be taken. I could not understand why we must use the words "immediate" and "significant" because we are talking about degrees of harm here. One cannot talk of degrees of harm. People can be harmed by threats, never mind by acts of violence.
We were pedantic or, at least the Minister was, towards this amendment on Committee Stage. We are talking about interim orders here and I know the Minister said this related to extreme circumstances. I have no quarrel with that but one can have extreme circumstances in relation to "a serious risk of harm". How immediate does the Minister want it to be?
When we speak of women who are terrorised, in particular, I do not think there is a necessity to be pedantic about it. We should live with "a serious risk of harm" and say if that is the belief of somebody, then it is good enough to warrant an interim barring order.
This is similar to an amendment tabled by Deputy Keogh on Committee Stage. Section 4 provides for the making by the court of an interim barring order pending the determination of an application for a barring order. Such an order can be made ex parte. One of the conditions with which the court must be satisfied is that there is an immediate and serious risk of significant harm to the applicant or any dependent person if the order is not made immediately.
The effect of Deputy Keogh's amendment would be to dilute that condition. In other words, the court would not be required to examine either the immediacy of the risk or the significance of the harm. As I pointed out on Committee Stage, the power to bar the respondent from the home, under this section, can be exercised on an ex parte basis. In other words, a person could be forced to leave his or her home without being given the opportunity to be heard in court or to answer to the complaint or to say whether it is true or false. It is obvious that such a power can only be exercised in the most extreme situations. The Law Reform Commission acknowledges, in its report on child sexual abuse, that removal of an alleged abuser by a barring order made on an ex parte basis could only be contemplated in the most extreme circumstances. The present working has been framed with this in mind. For this reason I am unable to accept the Deputy's amendment.
I cannot accept what the Minister is saying. What has to happen? Do I have to be threatened with being killed in order to achieve a barring order in these circumstances? Is it not much better to err on the side of protection of people rather than on the side of somebody being barred from their home, no matter for how short a period that might be? I cannot believe the Minister is actually saying this. He has accepted many of the points made by groups involved in the whole area of domestic violence. It is extraordinary that we should be more concerned that somebody would be barred from their home than we would be with the threat of harm to a person. If there is a serious risk, that is good enough. I cannot accept the Minister would take that view. I have praised him for his handling of this Bill but I am very disappointed with his response to this amendment. It is not a huge amendment. We have to remember what we are trying to achieve here. We have to say to the 18 per cent of Irish women and their children who suffer from violence that they are the people who need to be defended, not the abusers.
I move amendment No. 36:
In page 10, between lines 31 and 32, to insert the following:
"(5) Notwithstanding subsection (4), so much of an interim barring order as was made for the benefit of a dependent person shall cease to have effect in accordance with that subsection or upon such person ceasing to a dependent person, whichever first occurs.".
I move amendment No. 37:
In page 11, line 6, after "section," to insert "or".
I move amendment No. 38:
In page 11, to delete lines 7 and 8.
I move amendment No. 39:
In page 11, line 16, after "order," to insert "or".
I move amendment No. 40:
In page 11, line 18, to delete "or".
I move amendment No. 41:
In page 11, to delete lines 19 to 21.
I move amendment No. 42:
In page 11, between lines 33 and 34, to insert the following:
"(6) Notwithstanding subsection (5), so much of a protection order as was made for the benefit of a dependent person shall cease to have effect in accordance with that subsection or upon such person ceasing to be a dependent person, whichever first occurs.".
I move amendment No. 44:
In page 16, line 29, after "section," to insert "or".
I move amendment No. 45:
In page 16, to delete lines 30 and 31.
I move amendment No. 46:
In page 16, line 39, after "order," to insert "or".
I move amendment No. 47:
In page 16, line 41, to delete "or".
I move amendment No. 48:
In page 17, to delete lines 1 to 3.
I move amendment No. 49:
In page 17, between lines 28 and 29, to insert the following: "(3) Where a judge of the District Court to whom subsection (1) relates is not immediately available, the jurisdiction of the District Court under that subsection may be exercised by any judge of the District Court.".
The purpose of amendment No. 49 is to provide that where the appropriate District Court judge is unavailable, any other judge of the District Court may hear an application under this Bill. There are similar provisions in the Child Abduction and Enforcement of Custody Orders Act, 1991, and the Child Care Act, 1991, both of which deal with the protection of children in emergency cases. The amendment proposed will likewise apply to cases which require an early hearing of the court. It will facilitate emergency cases.
I thank Members on all sides of the House for their support and co-operation in advancing this important measure which has been awaited for a long time. The organisations that work with victims of domestic violence are pleased with this measure. I think we have done a good day's work in the House in progressing this Bill. In particular I thank Deputies Woods and Keogh for their help and support in connection with it. I thank also the staff of the Department who worked long and hard on the important, difficult and complex measures reflected in some aspects of the Bill.
I thank the Minister for the way he considered the points we put forward. The Bill has been given detailed consideration on Committee Stage. Obviously, the Minister listened to what was said on Committee Stage. While we did not get all we wanted certainly he was prepared to make amendments. This has been one of the characteristics of this Minister.
I thank the staff who worked with the Minister. One of the amendments, as Deputy Keogh pointed out, resulted in 24 consequential amendments. The draftsperson had a good deal of work to do in meeting some of the points made by us earlier. This Bill is important and coming at a very important time. It is sending out a special message which is wider than the content of the Bill itself. It is that Dáil Éireann will not accept domestic violence, the extent of which is far greater than was anticipated previously, and that we are determined to provide safety for spouses — in most cases for women — who find themselves in situations of domestic violence. For that reason we have pleasure in supporting the Bill. It was a good Bill in the first instance but is now a better Bill having completed the different Stages in the House. I wish the Minister every success in the Seanad.
I thank the Minister for bringing forward this important legislation. It is a watershed in relation to family law and fills a huge void in our legislation. I thank also his officials for the enormous work they have done. Because of this legislation and the work of Women's Aid, domestic violence is now recognised in Irish society as a reality and we have to face up to it. To a great extent, this Bill helps us to do that.
While I said I was disappointed with some aspects of the Bill, we can leave that for another day. I congratulate the Minister on this important Bill and hope it will be speedily enacted.
