Dáil Éireann debate -
Thursday, 10 Oct 2002

Vol. 555 No. 1

Adjournment Debate. - Barring Orders.

Mr. Andrews

Interim barring orders are provided for those who can show they are at risk of harm from a spouse or family member. Yesterday's Supreme Court ruling has created a dangerous situation for those hitherto protected by interim barring orders.

Women's Aid has already reported two types of incidence since that judgment. One is that spouses formerly restrained by interim barring orders are returning to the family home as they become aware of this development. The Garda Síochána has instructed its members that current interim barring orders are no longer valid and that people can, therefore, return home legitimately.

The second incidence it is reporting is that, in some cases, people are confused about the distinction between an interim barring order and an actual one that has resulted from a full hearing so they are being browbeaten into accepting someone back into a violent situation. The coming weekend presents great dangers for those who have hitherto been protected by interim barring orders. This is the time when most domestic violence occurs. I would like to think the House has the capacity to come up with a solution to this problem in the short-term.

In my own experience what happens is that when a domestic violence incident occurs a garda shows up and recommends an interim barring order. This is duly granted but the problem arises in that the return date for a full hearing might be three or four months down the road. There are insufficient judges and the Courts Service is not properly streamlined. The Supreme Court acknowledged this in stating that these interim barring orders were unconstitutional, and it was probably right about that.

I hope the Minister will be in a position to state what steps the Courts Service can take in the short-term – days rather than weeks – to protect potential victims. I look forward to hearing what the Department of Justice, Equality and Law Reform can come up with in the short-term and what the Garda Síochána is going to do until the problem has been resolved. One weekend is too many but I hope that something can be done by next week at the latest.

The legislation is adequate if time limits are introduced, as was recognised by the Supreme Court, as people were being kept out of their homes for a long period of time. As far as I understand, a respondent in the High Court can ask to have it discharged at any time during the period of the interim barring order so, in effect, time limits are what is required. I suggest that a statutory instrument could be introduced in the short-term. I call on the Minister to bring some measure before the House next week so that this matter can be dealt with and this loophole can be closed until such time as substantial changes to the Domestic Violence Act, 1996, can be brought before the House.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I am grateful to Deputy Andrews for raising this question which is of widespread concern, particularly, to those who are, or may be, victims of domestic violence.

Yesterday, the Supreme Court, in the case of Keating v Crowley, Ireland and the Attorney General, declared that section 4(3) of the Domestic Violence Act, 1996, is invalid having regard to the provisions of the Constitution. This subsection permits the Circuit Court or the District Court to make an interim barring order ex parte, that is, without notice to the person to be barred, where the court considers it necessary or expedient in the interests of justice. The Supreme Court held that the procedures prescribed by subsections (1), (3) and (4) of section 4 of the 1996 Act, in failing to prescribe a fixed period of relatively short duration during which an interim barring order made ex parte is to continue in force, deprive the respondents to such applications of the protection of the principle of audi alteram partem– hear the other side – in a manner and to an extent which is disproportionate, unreasonable and unnecessary. In other words, the provisions in question deprive the person who would be the subject of the interim barring order of the right to be heard in his or her own defence in a way which is unconstitutional.

This decision clearly demands a response from the Government and we are studying the judgment to determine what the appropriate course of action is. The Attorney General has already asked for counsel's advice on the matter.

I caution against an overly negative view of this judgment from the point of view of victims and potential victims of domestic violence. The declaration of the Supreme Court yesterday relates only to section 4(3) of the 1996 Act, the power to grant interim barring orders ex parte. The other protective reliefs available under the Act remain unaffected. While the court noted the draconian consequences of interim barring orders in the sense that breach of such an order is a criminal offence and also that the respondent is liable to be arrested by a garda who has a reasonable belief that such an offence has been committed, it did not declare that such orders were in themselves unconstitutional.

Safety and barring orders remain unaffected by this judgment as do protection orders. Protection orders are particularly important in the present context in that they are interim measures pending the determination of an application for a barring or safety order. Protection orders direct that the respondent should not use or threaten to use violence against, molest or put in fear the applicant. Section 5(4) of the 1996 Act provides that such an order may be made ex parte. This is a remedy which could be considered by persons who fear violence in the period before the hearing of their application for the barring or safety order or persons who have interim barring orders granted ex parte and who fear they may now be ineffective for the reasons mentioned by the Deputy and the purpose for which they were made. Anyone who fears they are adversely affected by the Supreme Court decision is nonetheless free to apply for a protection order which would go a considerable distance to dealing with the anxieties the Deputy mentioned.

In this context, I understand from the Courts Service that a maximum of 45 interim barring orders are in existence in the Dublin metropolitan district. I cannot give a figure for the rest of the State, but it may be of a similar order. I also note from the report of the Courts Service for 2001 that, while the average length of time from the date of issue of the summons to the hearing of barring and safety order applications was 12 weeks, barring order applications where an interim barring order had been made were dealt with within two to three weeks. This shows that the District Court has been giving priority to cases in which an interim order has been made.

What remains is to decide on the legislative change needed to rectify the constitutional defect found by the Supreme Court. As I said, the Attorney General will be advising on this and, until I receive his advice, I cannot make any definitive statements on the issue. However, I am reassured by yesterday's judgment in that, while the Supreme Court has struck down a provision in the Domestic Violence Act, it has not called into question the policy underlying the Act or the need to protect vulnerable people under threat of violence in their homes. On page 24 of the judgment it is stated:

The issue in the case is not whether the Oireachtas was entitled to abridge, even in a relatively drastic fashion, the right of the [respondent in a barring order case] to be heard, in order to protect spouses and dependant children from domestic violence. That the legislature were entitled to effect such an abridgement of the rights of individual citizens in order to deal with the social evil of domestic violence is beyond dispute. The question for resolution in this case is as to whether the manner in which the abridgement of the right to be heard has been effected is proportionate. . .

While the court found that the existing provision was not proportionate, I see nothing in this judgment which will prevent the House from enacting a new provision which is both fair and effective in respect to all parties and which will be consistent with the terms of the judgment.