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Seanad Éireann debate -
Wednesday, 3 Jun 1981

Vol. 95 No. 21

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

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

The Minister is to be complimented on his sensitive response to the representations that have been made to him by the many voluntary women's groups to provide adequate protection for the victims of family violence. As anyone who has had any dealings with these groups knows, they have considered that the time limit for barring orders of three months was totally inadequate.

The Minister first proposed to extend barring orders by the insertion of an appropriate section in the Courts Bill, recently debated in the House, but he rightly decided that the urgency and importance of the matter deserved a separate debate. This response by the Minister to this very real need will be welcomed. Family violence runs the whole gamut — from an occasional Saturday night black eye to aggravated sexual assault. In so far as this Bill is lacking in any one thing, it is that it does not provide that the subject of a barring order be referred to marriage counselling, to psychiatric treatment, or to psycho-sexual counselling for help.

There are many married couples bringing up families today whose marriages are basically sound but whose social and economic environments leave a lot to be desired. They are struggling, many of them in quiet desperation, unable to cope with social deprivation, unemployment and lack of housing facilities. Expressions of violence in situations like this are frequently a cry for help and one to which a caring community should respond. There is usually a long history of distress, economic or otherwise, in such cases.

One must also be concerned at the number of young people conditioned by the media to over-emphasise the importance of certain aspects of the marital relationship who find themselves unprepared for the daily responsibilities of marriage and express their sense of inadequacy in violent behaviour. Violence in marriage may become part of a continuing pattern. Young people become accustomed to their parents' violence and do not regard it as abnormal and we need to be able to categorise violence if we are to treat the social problem.

At the same time we have the duty to protect the victims of such violence in a realistic way so that they can freely and safely apply for and obtain a barring order. Section 3 of the Bill provides for a protection order designed to protect the members of the family during the period when the application for a barring order is awaiting hearing, a period when the family is most vulnerable to threats and pressure from one source or another. Section 7 confers on a member of the Garda the power to arrest without warrant anyone in breach of a barring order or a protection order and section 8 increases the penalties for breaches of these orders while on bail.

These three provisions in the Bill before the House should serve to make the law as foolproof as it can be for the battered wife who seeks release. The enlargement of the jurisdication under which barring orders are made will make it easier to obtain access to the court, but when we are talking about protection we should be concerned also to protect the rights of the husband who because of a domestic squabble may find himself without a roof over his head. The ordinary husband who gets married, buys the house and proceeds to settle down and raise a family is not a wife-beater nor does he become a wife-beater overnight and he may regard this Bill as a somewhat draconian measure. It is a Bill designed to give protection to a family in crisis but it should be remembered that a mischievous claim for a barring order would only serve to bring the law into disrepute.

While the measures contained in the Bill should help the battered wife to seek and obtain the relief she needs, we still have the problem of children at risk. The report of the Women's Aid organisation shows the horrific effect of family violence on children who are harmed physically and psychologically and who, saddest of all, grow to accept such violence as part of the normal pattern of family life and continue it in their own marriages, thus closing the vicious circle. Although Women's Aid have looked after a total of some 15,000 children in their refuge since it opened in Dublin in 1974, their report emphasises that many women are reluctant to claim the relief of the law because of their financial dependence upon their husbands and so their children are the prime victims of violence in the family.

In particular, I would be concerned about the battered baby syndrome and here one would hope for a concerted approach by various Departments concerned with the care of children, in particular the Departments of Health and Justice. There is a danger where responsibility is divided that it would be passed from one Department to the other. One sees, for example, that illegitimate children who are eligible for adoption come under the aegis of the Department of Justice while legitimate children who may not be adopted and may only be offered for fostering come under the care of the Department of Health. Our Constitution is committed to the equal cherishing of all children but looking at the law it seems that children brought up in a normal family environment are more equally cherished than those who are not.

While the Women's Aid organisation have mentioned the very large number of 15,000 children and 3,500 women who have applied to them for protection, these numbers are only the tip of the iceberg because many women do not seek the relief of the law. They do not do so because of financial dependence, because they fear that there is a social stigma attached to family violence, because if they live in a rural community there is nowhere they can go for protection. Many of them do not wish to admit that their marriages have failed. We really have no adequate statistics on the number of people who are suffering in this way. I would repeat the comment I made on the Second Stage of the Courts Bill that it is a very sad commentary on the way we interpret the constitutional commitment to the needs of the family that so many of the Bills going through the House, including this one, are concerned with the need to protect the individual members of the family from one another.

The Minister's response to the problem is a very sensitive one and let us hope it will be effective. I would hope for an equally sensitive response to the present urgent needs of the Women's Aid organisation who have endeavoured over the years to provide a place of refuge for such women and their children. It would be a pity if their work were to come to a full stop because of public indifference and lack of funds.

I got the impression that it was a shared view in the other House or the other Chamber that there was a limit to the extent to which the sanction of law could improve the unhappy marriage and the Minister said that in his opening address to the Seanad. He took the view that there is a limited extent to which the law could in this fashion of force help to correct things that were going wrong in the married state. Certainly I agree with that. Senator Cassidy's view, which was also expressed in the Dáil, is that there may be room for development of a more positive public attitude with regard to assisting people whose relationships have become as unhappy as the miserable conditions which lie behind and justify this Bill. However, in relation to this Bill and all Bills of this kind in relation to the family we should have a very definite policy in enacting any legislation of finding out all the facts, having a positive attitude towards discovering how extensive are the unhappy relationship in this society.

It is important that the existence of an article in the Constitution with regard to the indissolubility of marriage in no way frees society from its obligation to discover all its own ailments. Having said that, I do not think it necessarily follows from such figures as are brought to our notice from the analyses of various voluntary bodies and others who have done some private research in this area that the solution to the social problems indicated by these evils necessarily lies towards making provisions for the dissolution of any given marriage. The decision on that depends upon the performance by the secular society of its duty of having proper laws, laws which are based on facts, which are objectively analysed and interpreted. It would be a mistake for us not to recognise that there are two forces making for misinterpretation of the facts with regard to marriage here. One is the expression of the Christian institutional view with regard to indissolubility, the view predominating within the church of the majority of people of this State as to the social importance of the maintenance of marriage as distinct from any spiritual matter. Viewed from that standpoint there will be a desire not to know that there are many cases which perhaps, if we were doing our duty as legislators, might compel us in certain circumstances to say that we cannot do this duty, and not make provision for the dissolution of marriage. That might be the conclusion of an honest interpretation of the facts and we would have to follow that logic if we were doing our duty. But we need not anticipate that an honest interpretation of the facts would necessarily lead that way.

There is the other force in that we must face the fact that we are passing through a feminist revolution in which much historic oppression expressed in our laws and social attitudes is being thrown off. From the standpoint of people who want a revolution one cannot easily get as objective an analysis of such facts as those who are supporting the just cause and involved in inspiring the revolution. There may be a tendency to exaggerate but obviously from the figures the Minister has given us as to the number of barring orders which have been made, there are cases which justify the intervention of the law in any form that society judges it should take.

On the Christian position with regard to marriage, there does not seem to be any doubt at all that the view of Jesus as expressed in the Gospels and as interpreted in an unchanging tradition was very demanding in relation to marriage. For the Christian there is no escaping the implications of that, but I wonder whether sufficient attention is being given to what may be at the heart of that demand as we mostly talk about it. We have put insufficient emphasis on the fidelity side to the demand that one should be faithful as God is faithful, that one is true to one's work, that one keeps one's promises. This matter of a promise in relation to a future life and commitment to the person is not one which one as a Christian can without grave guilt, breach.

The Minister does not claim it to be a very large measure but it is necessary that we look at what is proposed in the Bill. As I will move amendments to this Bill, I agree with Senator Cassidy that in making laws we cannot make assumptions that are in any way unfair to parties against whom complaints are being made. We do not have provision here for an ex-parte application for an injuction. The Minister has refrained from going to that point. But we have provision for an interim injunction proposed to be called a protection order in respect of which it is possible that a spouse who is in most cases the husband, will be left with a proper sense of grievence if he has to live through a period during which there is a prohibition order and before there is a barring order in which it will appear that he is the guilty party. I am not satisfied that the proposed law with regard to making these prohibition orders is adequately protective of the aggrieved spouse and that there is sufficient provision to ensure that he knows before the application for the barring order is made that he is the subject of a prohibition order. I am unhappy about the language in section 4 and I will be proposing an amendment to it.

This Bill contains a very grievous provision with regard to an erring spouse, that he may find himself liable to arrest without warrant in respect of a prohibition order. If I understand the Bill as it stands he may possibly not know about it for all sorts of unhappy reasons. He may be on a skite during which he may be violent or abusive but he may not know that after he thought all his trouble was over since last Friday, he can be arrested without warrant. I am unhappy about the possibility that there would be a liability on the Garda, under the existing provisions of the Bill, if they exercise that power of arrest, for damages for false imprisonment. That is something on which it is necessary for me to propose an amendment.

With regard to section 8 which provides for sentences of imprisonment for offences against barring orders being consecutive, I am not satisfied that — it may well be that I am wrong incidentally but I propose to put down an amendment to be corrected on it — reading this section and the section in the original Act and the Criminal Justice Acts that are referred to in subsection (2) it necessarily follows, as a correct interpretation of these various sections that there is in fact an extension only of from three to 12 months. There is some doubt in my mind as to whether if the provisions of this Bill became law they might not in fact leave a husband guilty of an offence in a position in which he would be liable to go to jail for more than 12 months. If we are proposing to have that as law let us so enact. If there is the slightest lingering doubt about the possibility that it should be so, if we do not intend to have it so, let us eliminate the doubt. With regard to that, I will just draft an amendment in my own language, not that of a professional draftsman's, to make that clear. I have no doubt that my language could be improved when I offer it to the House. But I am sure the House would feel that if we are extending it from three to 12 months, and only to 12 months, we should indubitably so do.

With regard to the provision on expediting the procedures for dealing with these cases — which is obviously perfectly proper — I will be asking a question on Committee Stage which arises from an amendment which I am sure in itself is unconstitutional to include in the Bill because, as I put it down, it provides that rules of court as a definite matter of the Bill shall be made within six months of the coming into operation of the Bill. Otherwise we will have a section which simply says: the rules of court may make provision for expeditious hearing —"may"— but, in this case, is that as far as the Legislature, with a limitation on its powers in relation to the courts can go? It may be that that is as far as it can go. But if it can go further we should say: "Quickly, please, make your rules, so that any cases that come before you are heard as quickly as you, knowing your facts, can determine."

I am a little unhappy about the absence of any provision in the Bill making it clear that — as I presume there is no doubt — both the provisions for prohibition orders and for the extensions of imprisonment from three to 12 months apply only to acts committed after the coming into operation of this Bill, that they do not relate to acts committed before the passing of this Bill, whenever that may be. There is an Article, I think it is Article 15 of the Constitution, which says that you cannot — I have forgotten the precise wording of it but it is more or less to this effect — make an act a crime which was not a crime at the time it was committed. It may be that is breached. Whether the language of the Constitution is sufficient to save that situation I do not know but if the provisions of that Article were not sufficient to save it — which I think they are not — then we should have a clear section to that effect. I can develop my views particularly on the amendments when we get to Committee Stage.

Finally, with regard to rape, when we were debating the provisions of the Criminal Law (Rape) Bill — which is now the Criminal Law (Rape) Act, 1981 — I pressed a certain view with regard to this question of proceedings for rape being brought in respect of intercourse by a husband with his wife. My view — incidentally irrespective of any question about the indissolubility of marriage — is that we should be enormously hesitant about any greater intrusions than we need make into that area. Indeed Senator Cassidy made a — what is the word you use when you are saying somebody is frightfully good — splendid contribution on the whole matter and enlightened a lawyer on some aspects of the law. She drew attention to something that, as a matter of law, already a prosecution for rape can be brought where there is a non-consentual act of intercourse after a decree of judicial separation. That is now Irish law. I think, and I said on the Second Reading of the Criminal Law (Rape) Bill — and I propose to put down an amendment on this Bill — to the effect that the rule which provides that a wife impliedly consents to sexual intercourse with her husband, in a husband and wife situation within a marriage, should not apply where there is a conviction of an offence under the barring order law. There should be no implied consent by a wife where there is a barring order conviction given. I intend to introduce a new section to that effect and I would be very interested to have the reaction of the House to that.

The two Bills before us — the Family Law Bill and the Family Law (Protection of Spouses and Children) Bill, 1981 — prompt me to say that if we, as a State or a society, are to continue as we do to take responsibility for the institution of marriage I do not think our responsibility can continue merely with the issuing of a marriage licence, full stop. We have got to consider the need and the responsibility of the State to provide some form of counselling services, family courts, all probably useful instruments for the maintenance and upholding of the family and family life.

So far our legislation in this area has been purely legal and legislative rather than based on a sense of responsibility and care for the family. I hope that the Minister, his Department and the next Dáil and Seanad, will give much deeper thought to our responsibilities in this area for the tragic situations and unhappy relationships that exist.

How far the State should go in relation to family protection in intrusion into family life is a matter for very deep consideration. That is not to say that I do not welcome the measures which have been introduced. The Criminal Law (Rape) Bill, 1980 has been passed and we have these two measures. We have seen enough of the abuses of the family itself to realise that we have a responsibility and the Minister is trying to fulfil that responsibility, at least in part, in these measures. The women's organisations who have been promoting changes in legislation are to be complimented in that they have focussed attention on areas in which there has been fairly obvious discrimination and injustice to women, particularly in the area of the family. Not being a lawyer I am not competent to comment as Senator FitzGerald has been doing on the sections to which he has been referring. All I see in the legislation is that where formerly a garda in reply to either spouse in a marriage appealing to him would say, "It is not my business to interfere between a husband and wife," now if there is to be any involvement it has to be stated. so far as the State is concerned there is in ordinary life the right of an individual, be it an abused wife or anyone else, to protection and also in some cases the right of children to protection. There is finally the right of the family itself and the obligation to uphold the family.

The Minister has gone a considerable distance in the legislation before us — the Family Law (Protection of Spouses and Children) Bill, 1981 — but we have learned enough over the past few years to realise that we have a greater responsibility than simply the issuing of a legal marriage licence. If marriages are breaking down to the degree that they seem to be and if we seek to maintain those marriages, then we may be required to ensure that the granting of a licence should be conditional on what most of the churches would call preparation for marriage. That area is not involved in this Bill and I will not pursue the matter but we may need to direct our attention to it for future legislation.

I welcome the Bill on the grounds that it abolishes two conventions in our society in relation to marriage which are now archaic and which ante-date an age when men and women have chosen to be regarded as autonomous individuals within society rather than individuals who hope to find their definition and meaning as human beings merely within a marriage bond. I will be a little more explicit. The section dealing with breach of promise of marriage abolishes a convention which existed in a world where women depended very largely for their definition as human beings upon eligibility to be married and if that hope was held out for years and years and then withdrawn——

In fairness to the Senator, the title of the Bill as described on the monitor is not an accurate description of the Bill before the House. That will be debated later on this evening.

I have been puzzled by this. I looked at the two Bills in front of me. One is called the Family Law (Protection of Spouses and Children) Bill and the other the Family Law Bill.

I am glad that somebody else is getting mixed up about it also.

On the monitor it is called Family Law Bill and I was addressing myself to that.

I thought we were taking them together.

Are they not being taken together?

I thought that my colleagues were being irrelevant and I was very surprised at the irrelevancy of Senator FitzGerald's remarks, but being less experienced than he, I was not going to call him to order. I have things to say about the other Bill but I would not insult the House by trying to bring them on stream at the moment. Therefore, I will retire in humbleness and try to get my thoughts on this other Bill into sharper perspective in the meantime.

I thank the Senators for the welcome they have given this Bill and for their constructive comments on it. They are dealing here with a very sensitive area of law. My main concern has been to provide a positive and effective response to representations that the existing legislation was in need of improvement. As I said in my opening remarks the provision in the 1976 Act regarding barring orders was a considerable innovation at the time. Senator Cooney was Minister for Justice then and that Act was highly effective legislation, but in the meantime it was discovered that there were certain inadequacies. The purpose of the Bill before the House is to remove certain difficulties that have emerged over the years in the operation of the Bill, and to strengthen it in some respects.

The 1976 legislation was discussed in both Houses on a non-party basis. I appreciate very much that that precedent has been followed in relation to the present Bill. No person, least of all myself, pretends that this Bill or any legislation can be expected to deal satisfactorily with each individual case of domestic violence. It provides the necessary statutory basis for intervention by the courts and by the police, where matters have got to the stage where the safety and welfare of a spouse or children are seriously at risk. The voluntary agencies concerned have asked for this Bill. Their request has been granted in more than adequate measure. They consider that the Bill is necessary and would be useful in protecting spouses and children. This is also the view of those consulted in the preparation of the Bill, people with considerable experience of marital discord and violence. I am confident that the penalties provided in the Bill will act as a very definite deterrent to violence where domestic discord may arise.

Senator Cassidy was concerned about making available the necessary finances and so on. I should like to state that whatever is required to ensure the efficient operation of this legislation and, indeed, as I have stated in connection with the Courts Bill, the necessary moneys, staff and facilities will be provided. Senator FitzGerald has claimed that the Bill is not a very important measure. I accept that every section may not be important but there are some sections that are very significant.

I did not mean by that I do not think it has value. It has.

I do not interpret the Senator's comments as in any way minimising what is intended in the Bill. Two important aspects of the Bill are the extension of the maximum period for which the District Court may make a barring order, and the new provision for a protection order. These are two very significant changes in the old law. It was only after some years' experience of the operation of the 1976 Act, which was a very valuable and innovative piece of legislation at the time and which at that time put us ahead of some of our European colleagues in this area of law, that we considered it necessary to introduce this Bill.

With regard to the matters raised by Senator FitzGerald — the Senator said he was putting down amendments — I will deal with them on Committee Stage. The Senator referred to the background of some of the proposed amendments in his contribution on Second Stage. I am sure he will be giving a more expansive view of the justification for any change he might wish to see. For that reason, I propose to deal with them in detail on Committee Stage.

Senator Cassidy referred to the desirability to rehabilitate spouses against whom barring orders had been made where they are found, for instance, to be suffering from psychiatric illnesses. I should, first of all, stress that the 12 months specified in section 2 (4) is the maximum limit for a District Court barring order. Senators will appreciate that to bar a spouse from the family home is a very serious matter. It is to be expected that in only relatively rare cases would the circumstances justify the making of an order for as long as 12 months. In most cases it would probably not exceed six months. I do not think, therefore, that there would be much scope for rehabilitation of spouses during the period when barring orders are in force against them, although I have considerable sympathy for the sentiments inspired by the suggestion made by Senator Cassidy.

In fact, the court welfare service of my Department does a considerable amount of reconciliation work in family law cases. These cases are frequently adjourned by judges and justices for the purposes of reconciliation under the guidance and advice of a welfare officer where both parties agree. The actual operation of barring orders may also be supervised by welfare officers, provided the parties agree. The question of compulsory rehabilitation of a respondent spouse who, for instance, has a drink problem is another matter. All the courts can do in such cases is to offer advice to the person concerned and try to use persuasion. They cannot compel the person to have treatment.

Senator FitzGerald also referred to the possibility of breach of a barring order through inadvertence, and subsequent arrest. The point has been made as to whether sufficient safeguards exist to ensure that only a person who knowingly contravenes a barring order or protection order will be liable to arrest and charge. This postulates a situation where the respondent spouse might contravene an order through inadvertence and be arrested in consequence. It also poses the question of whether the word "knowingly" should be inserted before "contravenes" in the first line of subsection (1).

It is considered that there are sufficient safeguards built into the Bill to ensure that such a situation will not arise. At first, in the case of a barring order, the respondent will receive the initial summons to appear and in the usual case will be present at the proceedings and will know the outcome immediately. If the respondent spouse is absent, section 4(1) provides that a barring order or protection order will take effect only on notification of its making being given to that spouse. Then, under section 5(1), the respondent spouse must in all cases be given a copy of any order made by the court.

In addition, there is the practical safeguard that a garda would virtually never contemplate making an arrest in a barring order case without first warning the respondent spouse to desist from a contravention, under threat of arrest if he did not do so. Finally, as a matter of law, the doctrine of mens rea requires a guilty intent, or at least recklessness on the part of the offender before he can be convicted of an offence — subject to exceptions, for example, in the case of offences of strict liability which do not apply here. For all these reasons, it is clear that there is no need to make any further provision to deal with the possibility of a breach of a barring order or protection order by inadvertence. I regret that the description of the Bill on the monitor was such that it might have misled Senator Martin. Nevertheless, I think it was the other Bill he intended to speak on.

Question put and agreed to.

Acting Chairman

Next Stage?

I do not know what the Government want to do with regard to this. There should be time between a Second Reading debate on a measure of this kind and consideration of amendments. I have drafted amendments and am ready to discuss them but perhaps——

Acting Chairman

The amendments are being circulated now.

Perhaps the Acting Chairman would inform me what is the effect of what we are doing at the moment? Am I correct in understanding that there is nothing we can do to make this law?

Acting Chairman

We are trying to fix a time for the next Stage of the Bill.

Is there a proposal as to when the next Stage will be?

There should be time between Second Reading and Committee Stage and I am prepared to discuss Committee Stage, but I would like to know whether the Government agree to the amendments or not. If we pass the Bill as it came from the Dáil, does it become law?

Acting Chairman


If the Minister wishes to accept an amendment——

It would have to go back to the new Dáil.

If we make amendments to it it would then go back to the new Dáil to do what it liked with it?

It would have to be returned to the new Dáil.

I drafted these amendments in a hurry. I would have liked to have been able to give a little more time, to give my view particularly on one amendment which relates this to the Criminal Law (Rape) Act. I should like the amendments discussed when there would be a bigger House.

I am reflecting the view of the Government when I tell the Senator that I would be opposing all these amendments. I do not wish to appear to be stonewalling this or anything——

Acting Chairman

We have been on this for a considerable time and we should like a conclusion.

The Minister is agreeable to have the Committee Stage taken on Wednesday. There is the option to take it now——

Next Wednesday week.

Committee Stage ordered for Wednesday, 17 June 1981.