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Seanad Éireann debate -
Thursday, 21 May 1981

Vol. 95 No. 19

Family Law (Protection of Spouses and Children) Bill, 1981: Second Stage.

Question proposed: "That the Bill be now read a Second Time".

The purpose of this Bill is to extend and generally reinforce the provisions of the existing law, as set out in section 22 of the Family Law (Maintenance of Spouses and Children) Act, 1976, relating to the making of barring orders in cases of domestic violence. The main improvements proposed are as follows.

First, under section 3 of the Bill a spouse who applies to a court — normally this would be the District Court — for a barring order will now be able, following the making of the application, to obtain an injunction-type order, to be called a "protection order". That order will direct the other spouse not to use or threaten to use violence against, or molest or put in fear, the applicant spouse or a child of the family. It will ensure interim protection to the applicant spouse and children while the application for a barring order is being considered by the court. Breach of a protection order, like breach of a barring order, will be a criminal offence. Second, section 7 will confer on the Garda a power to arrest without warrant a spouse who contravenes a barring order or a protection order. Third, under section 8, where a person who is charged with breach of a barring order or protection order is given bail and then commits one or more further breaches while on bail, any sentences of imprisonment imposed for the breaches will have to be consecutive.

In addition, the maximum duration of a barring order which can be made by the District Court is being extended from three to 12 months, and the existing High Court jurisdiction to make barring orders is being transferred to the Circuit Court. Senators will recall that these latter provisions were originally contained in the Courts Bill, 1980, which has recently become law. They have been taken over into this Bill for the sake of completeness.

Finally, the Bill proposes to give the courts greater flexibility in dealing with applications for barring orders and to enable rules of court to be made providing for the expeditious hearing of these cases.

Prior to 1976, the only civil law remedy, apart from judicial separation, available in these cases was an injunction from the High Court or Circuit Court ordering the offending spouse to leave the family home. However, one could not always be confident of obtaining such an injunction and that situation, together with the problem of costs in the absence then of civil legal aid, meant that for practical purposes a remedy was not available to many people.

The 1976 Act, following a recommendation in the 19th Interim Report of the Committee on Court Practice and Procedure, introduced the concept of a barring order obtainable from all first instance courts. This was a radical innovation at the time, and over the years since then the barring order has become the principal means by which spouses who are subjected to violence in their homes seek relief from the courts. This is illustrated by the fact that in the three years ending July 1980 an average of about 200 barring orders a year were made by the District Court for the Dublin Metropolitan District alone.

It was to be expected that experience of the operation of this new legislative provision would show up areas where there was scope for improvement. This is what in fact happened. The present Bill is the result of a detailed examination of the operation of the barring order provision in the 1976 Act. It has been prepared after detailed consultations with those concerned in its operation, notably members of the Judiciary and the Garda authorities, and with a number of voluntary agencies, mainly women's organisations, active in the area of family problems. Some valuable studies and reports were received from these organisations. The Bill has the relatively modest but nonetheless important purpose of ensuring that the statutory provision for the protection of spouses and children in cases of domestic violence, first introduced in 1976, is as adequate and effective as the law can make it.

The principal innovation in the Bill is the provision in section 3 for the making of a protection order. Such an order can be made in favour of a spouse who has applied for a barring order where the court is of opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or of any child of the family requires it. The protection order is an order in the nature of an interim injunction directing the other spouse not to use, or threaten to use, violence against the applicant spouse or a child, or molest or put them in fear. The court may make a protection order at the time of the application for the barring order or at any time before the application is decided upon, and whether or not the summons in relation to the application has been served on the other spouse. The protection order will expire at the conclusion of the barring order proceedings but, if the court decides to make a barring order, it will be able to include in it a prohibition of violence and molestation in the same terms as in a protection order.

The protection order provision has been introduced in response to representations that a spouse who applies for a barring order would in many cases be in danger of being subjected to further violence until such time as a barring order was made by the court. The suggestion was made that this situation could be met by providing for the grant of an interim barring order by the court on the ex parte application of the applicant spouse. However, it would be a serious matter to bar a spouse from the family home without first giving that spouse an opportunity of being heard. I do not think that such a provision, which would amount to a power to grant an eviction order without notice of the proceedings, would be acceptable to this House.

A spouse against whom a protection order is made will continue to be entitled to live in the family home but will be under a very strong compulsion to refrain from acts of violence or intimidation towards the other spouse or the children. Contravention of the order will be a criminal offence and an offender will be liable to arrest on complaint being made to a garda by or on behalf of the applicant.

In the course of the Second Stage debate in the Dáil the point was made that the involvement of the Garda in incidents of domestic violence may not always be appropriate. In fact, it is probably true to say that the Garda are reluctant to get involved in family disputes of any kind in view of the intimate and sensitive nature of the issues that may arise and the allegations and counter-allegations that usually accompany them. It was considerations of this nature that influenced the decision not to give the Garda a power of arrest without warrant in the 1976 legislation. However, that legislation was not long in operation when representations began to be received from the voluntary organisations concerned as to the need for stronger enforcement of the barring order provisions.

In August 1978 the Garda Commissioner issued instructions that full use be made by the Garda of the summons procedure. This resulted in an improvement, but the procedure of enforcement by way of summons involved delays in most cases of upwards of three weeks in the hearing of complaints of contraventions of barring orders. The position was kept under review in consultation with members of the Judiciary and the Garda authorities. Following further representations from the voluntary organisations about the inadequacy of the summons procedure and emphasising the need for a power of arrest without warrant to ensure effective enforcement, further consideration was given to the matter, in consultation with members of the Judiciary and the Garda authorities. The decision finally to come down in favour of including a power of arrest without warrant in the present proposals can be said, therefore, to be a fully considered conclusion arrived at following the experience gained over a number of years in operating the provisions of the 1976 Act.

The grant of a power of arrest without warrant for breaches of a barring order would not in itself be a solution. Indeed, without any other provision, it could make matters worse. The arrested spouse would usually be entitled to release on bail and there would be a distinct danger that during the period of bail further violence would occur. To deal with this situation section 8 of the Bill introduces a new feature into this area of the law which will have a strong deterrent effect on a respondent spouse who may be tempted to defy a barring order or a protection order. This provides that, where a person is arrested for breach of a barring or a protection order and released on bail and then commits a further breach while on bail, any sentences of imprisonment imposed for those breaches will have to be served consecutively. Moreover the present maximum limit of 12 months on consecutive sentences which may be imposed by the District Court will not apply.

The introduction of a power of arrest without warrant imposes on us an obligation to incorporate safeguards in the procedures to ensure that a spouse liable to be arrested is made aware as soon as possible of the existence of the order. This would be especially important where the respondent spouse was not present at the proceedings, as would usually be the case on the granting of a protection order. However, if reliance were to be placed on customary methods of serving a copy of the order on the respondent spouse, such as leaving it at the family home or sending it by registered post, there would be no assurance that the making of the order would have come to the personal notice of that spouse.

Senators will, I think, agree that adequate provision in this regard is made in sections 4 and 5 of the Bill. Under section 4 an order will not take effect until the respondent spouse is notified, but the notification can be done informally by the applicant spouse telling the respondent spouse that the order has been made and producing a copy of the order. Section 5 provides that the court shall cause a copy of the order to be given to or sent as soon as practicable to both spouses, as well as to the local Garda station. Normally, I would expect that a copy of the barring order or protection order would be handed to the applicant spouse at the conclusion of the hearing, so that that spouse would be able to produce a copy of it to the respondent spouse at any time afterwards and thereby bring it into effect.

It will be noted that the power of arrest can only be exercised following a complaint made to a garda by or on behalf of the applicant spouse. This will leave the way open for reconciliation between the spouses. The possibility will, of course, remain for the applicant spouse or a garda to proceed by way of summons as under the existing law.

Perhaps, I should stress that, while the Bill deals essentially with the situation arising between spouses in the context of family violence, it does not alter in any way the existing statutory provisions for the protection of children. Assault, ill-treatment, neglect and abandonment of children are dealt with by the provisions of the criminal law—for instance, the Children Act, 1908, and the Offences Against the Person Act. 1861. A barring order is a statutory procedure whereby a court is empowered, in the interests of the safety or welfare of one spouse and the children of the family, to order the other spouse to leave the family home, notwithstanding the mutual duty of the spouse to cohabit that is implicit in the marriage relationship.

Among those consulted prior to the preparation of the Bill there was a general consensus as to the aspects which called for improvement and these improvements are now embodied in the Bill. Indeed, I can say with some assurance that not only does the Bill meet the case made by the organisations—and these were mainly women's organisations, since it is usually wives who are the victims of domestic violence—who made representations in the matter, but in some respects it achieves substantially more than they had sought.

It is a truism that no legislation dealing with human problems, with all their complexities, can hope to give full satisfaction. However, this Bill is the Government's response to representations by people concerned with domestic violence that the existing law does not give spouses—in virtually all cases wives—an adequate measure of protection from such violence. It is, in my view, an effective response and it has been generally welcomed as such.

May I conclude by once more acknowledging, as I did in the Dáil, the debt we all owe to the voluntary organisations who are doing so much good work in this area? I now commend the Bill to the House.

I welcome this Bill wholeheartedly as another step forward on this long road embarked on so recently in Irish legislative history towards coping with the realities of unfortunate problems within marriage.

I am sure that every Senator feels that it is not at all pleasant to have to bring in Bills of this kind to strengthen procedures for keeping violent spouses away from their victims, who usually are their wives and children. It would be better for all of us if this kind of legislation never had to be introduced and brought before us. It is quite sad that we should be even considering it. Having said that, the provisions in the Bill are things which have been pointed out over the last few years as being necessary. I compliment the Minister for responding to the items which were pointed out to him by the voluntary organisations which he has mentioned.

encourage voluntary organisations and, in particular, women's organisations who have so comparatively recently involved themselves in what one might call the legislative process in the democratic part of society, in meeting Ministers and making representations, in digging into how remedies can be found and in putting forward those remedies and joining in discussions with politicians on how best to tackle the problems.

These voluntary organisations should be complimented at every opportunity because, as more and more problems come to light, more and more people become involved in the process of applying pressure to have wrongs righted. They need encouragement. Sometimes I get phone calls from people saying that such and such a thing is worrying them and they feel that something should be done about it and do not know what to do about it. I talk to them and describe the success which various women's groups have achieved over the last few years in having wrongs righted. Then they are very much encouraged and set about organising themselves. That is a very good thing.

It is also sad that, with so much violence in our society, there is another under-world of violence which is by no means limited. Perhaps we see only the tip of the iceberg in the cases that require the remedies which are in the Bill. The nature of this problem means that in many cases it remains hidden, even more so among families who might be described as higher socio-economic groups, who feel very strongly that a great deal of shame attaches to having to admit that there is violence in the home and who literally hide their mental and physical scars, rather than come out and admit that this is actually happening. Obviously, people must make their own decisions about the wisdom or otherwise of saying that they have a problem, but it should be pointed out at every possible opportunity that for the sake, particularly of the long-term stability of the family and the children of that family, it would seem to be usually much better to seek help where help is available. Unfortunately, enough help is not available. This is a general problem in this area where enough help and knowledge are not available to tackle the problem at source.

This Bill seeks basically to add something to a previous Bill which was found not to be strong enough. I agree with my colleague in the Dáil when he questioned the naming of this Bill, as a Family Law Bill. It is limited enough in its provisions. However, it seeks to give more protection to spouses and children than has hitherto been available.

We must see why this Bill has been necessary and acknowledge the size of the problem. I have a report entitled "Family Violence" which was brought out by the organisation Women's Aid, which is the principal organisation in the field of helping the victims of domestic violence. The report says that in the five-and-a-half-years since the organisation started over 2,000 women have sought and been given refuge, with over 15,000 children, ranging from babes in arms to teenage boys and girls. That is a terrible chapter of violence—2,000 mothers and 15,000 children. Many organisations, particularly Women's Aid, describe the problem as a revolving door, the situation being that these women, the majority of whom, unfortunately, do not seek barring orders, come to the refuge and sooner or later go back to their original situation. This is what they mean by the revolving door. They also describe it as a circle of violence, because it is a very sad fact, apparently — and I say apparently because there is a frightful lack of research in this area — that where children were brought up in a very violent atmosphere they themselves expect and perpetrate violence when they grow older. That is not confined only to men. I listened in Dublin recently to Erin Pizzey, the founder of the English organisation, who said one of the problems of a family which is a victim of violence is that there is an addiction to violence which grows up among the husband, wife and children. This addiction to violence is very hard to break and draws women and children back inexorably to the wretched situation which caused the problem in the first place.

Family violence is one of our big problems. The week the Women's Aid organisation in Dublin began, a very fine woman, who I am glad to say is a candidate for Dáil Éireann in the next election, one night was watching television and saw a programme entitled "Scream Softly or the Neighbours will Hear". That programme touched her so deeply that that very night she rang several women and said "We must deal with this problem in Ireland". They set out and dealt with it. There are now people right across the country genuinely concerned.

There was at that time, and I think still is, a reluctance on the part of many people actually to admit that the problem exists. When cases of family violence which require a great deal of help are described, the people involved have often been accused of sensationalism. It is a great pity that we have a reluctance to face up to really unpleasant facts. It was, indeed, the so-called sensationalism of the reality which was certainly one of the factors in drawing me, as I am sure it was in drawing many others, women in particular, towards the political field.

Unfortunately, despite the reality and the numbers in question, we still find a reluctance to get involved. A very sad report in yesterday's newspaper The Irish Press detailed the paucity of the response of the general Irish public to the appeal for funds by the women who are helping the victims of violence which this Bill sets out to protect. They apparently raised only £470 in donations since they had a big meeting in Liberty Hall in Dublin in mid-March and only 94 people have taken up the offer of a £5 associate membership. That is a very sad story of public indifference.

It would make one reflect, perhaps, that violence in our society has grown to such a pitch that we have become hardened to it and that the domestic violence suffered by these victims does not seem to us as terrible as so many other violent happenings.

I reiterate the need for research right across the board into family breakdown, its causes and remedies, into the effects of family violence on children, into the whole area of social problems which has been very sadly neglected. In a recent document produced by the party which I represent, we undertake to set up a special department for that research, because it is a top priority.

One of the problems for people trying to protect the victims of family violence is, of course, drink. It is estimated in this book that in something like 90 per cent of the cases they are dealing with, abuse of alcohol enters into the question in some way. This is why I am very happy about the protection order in the Bill. However, it is very difficult to imagine how a very drunken, violent spouse will react when his wife produces a piece of paper and says "I have a protection order, so go away". That, unfortunately, may not mean anything at all to the person who not only is in a very violent mood, but is drunk as well. In that context, I quote something which Justice Seán Delap suggested at a meeting in Liberty Hall, that judges very often now make a rule that drunken or violent husbands must sign on in police stations on Thursday, Friday and Saturday nights a quarter of an hour before closing time. That is an immensely practical suggestion, very simple, solid and possibly a very good approach to one aspect of this problem. Apparently, the vast majority of violence cases in the home occur on pay night and at weekends. I compliment Justice Delap on that suggestion.

The abuse of alcohol and the violent pattern of behaviour are symptoms of an underlying malaise about which we have not even begun to think and about which we must think. I am glad that the Garda have been given more powers in this question and am quite sure that they will use them. I know that they are very good and sympathetic in these cases.

We should look at two suggestions which have been made by the Aim Group and perhaps the Minister would bear with me if I bring them to his attention. We are, in this Bill, increasing the possible duration of the barring order to 12 months. That is a very long time, and, obviously, the previous three-month period was too short.

Debate adjourned.
The Seanad adjourned at 5 p.m. until 2.30 p.m. on Wednesday, 27 May 1981.