I have not looked at the Principal Act where, I have no doubt, I would find the answer to this question. Are illegitimate children included in the children referred to in this Bill?. Perhaps the Minister would prefer to answer that question before I put my second question.
Family Law (Protection of Spouses and Children) Bill, 1981: Committee and Final Stages.
Question proposed: "That section 1 stand part of the Bill."
Illegitimate children when adopted. Adopted children are provided for.
Unless they are adopted they are not within the sections which deal with intimidation of children as against wives. That is in the Principal Act, I think, but I am subject to correction. This point could be dealt with at a later stage in the Bill under another section if the Minister chose to do it that way.
The section says: "...provided that he is under the age of eighteen years..." Does that mean he has not attained the age of 18 years? Is this a different concept? It is a different language. Assuming the age of majority is 21 years, you attain your majority, I think, on the beginning of the last day of your 20th year. I do not know which is intended here. Should the boy or girl have celebrated his or her 18th birthday or is it the day before? Which is the intention in the Bill? I am not here to make points to embarrass the Minister. It is perfectly within the Minister's competence to deal with this on another section when there will be other points to be made if he prefers to deal with it that way.
In relation to the first part of the question, the provision in the 1976 Act allows for the grant of a barring order, on the application of one spouse to a marriage, ordering the other spouse to leave the family home in the interests of the safety or welfare of the applicant spouse and children. Under the present Bill, this will continue to be the basis on which barring orders and protection orders will be granted. It does not purport to give protection where there is only a single parent, widow or widower, or to children living with cohabiting couples or where the children of a married couple are being ill-treated by the parents and there is no violence between the parents themselves. The Bill deals with the situation where both spouse and children are put at risk by domestic violence. In many cases only the exclusion of the offending spouse will ensure their safety or welfare.
The reason the Bill is limited in this way is that the barring order provision is specially designed to deal with the situation arising out of the marital relationship between spouses. Marriage gives rise to the right of consortium which involves the mutual duty on the part of both spouses to live together as husband and wife. This duty can be abrogated by court order only, unless both parties agree, that is, in a separation agreement, to live apart. A barring order is a means whereby a court can order one spouse to leave the family home, notwithstanding the duty to cohabit, where it considers that this is necessary because of the threat that spouse represents to the safety or welfare of the other spouse or child. For this reason, its extension to children would not be appropriate.
The protection of children as such is given by criminal law. The Children Act, 1908, makes special provision to deal with cases of cruelty to children. In addition, there are the provisions of the Offences Against the Person Act, 1861, for assault. The Children Act, 1908, Part II, deals with special offences against children and young persons. "Child" means any person under 15 years of age under section 31 of the Children Act, 1908.
On the second part of the question, any child or young person who has attained 18 years of age is deemed to be excluded for the purposes of the Bill. The maximum age of 18 years, apart from the exception for children over that age who are suffering from physical or mental disability, has been chosen in anticipation of general provision being made in the near future for lowering the age of majority to 18 as recommended by the Law Reform Commission in their working paper in 1977 and expected to be confirmed in their final report on this subject, due shortly. The 1976 Act covered children up to 16 years, the school leaving age and the age of cesser of parental maintenance under the social welfare code, plus those in full-time education up to 21 years and those over 21 years suffering from disability. It will be noted that this Bill raises the age in some cases as compared with the 1976 Act, that is, from 16 to 18 years for children not in full-time education, and reduces it for others, that is, from 21 to 18 years for children in full-time education.
I am not certain if the Minister is entirely correct in what he has just said. While it is true that this code deals only with a marriage relationship, if I understand what this Bill is saying, I should like to direct the Minister's attention to section 2 (2) which reads:
A barring order may, if the Court finds fit, prohibit the respondent spouse from using or threatening to use violence against, molesting or putting in fear, the applicant spouse or any child.
I understand that the whole matter of our treatment of the cohabiting couple with children and the single parent situation may not be appropriate to be dealt with in a Bill of this kind, although it urgently needs our attention. I merely say with regard to this code, that it seems to be wrong not to give the relief which is provided in the code for a barring order, where the person who is being molested or put in fear — a matter on which the court is informed by a spouse — is an illegitimate child of either the applicant or the respondent. This whole code must be transformed but, to deal with this Bill as it is, where the illegitimate child is living with a married couple, which is as far as this Bill proposes to go, if that illegitimate child is put in fear and the court is satisfied it is put in fear by the actions of the respondent and the court wants to make a barring order, under this Bill, if it is enacted, the court cannot make a barring order if the only complaints is that an illegitimate child is being put in fear.
If a husband marries a woman who has an illegitimate child and, for one reason or another, does not adopt it, and the mother of the child satisfied the court that a barring order is needed because of the way her husband is treating her child, who is illegitimate and not a child within the terms of this Bill, the court cannot give the relief of the barring order in that case. The Bill ought to, and I cannot conceive of an objection if we take the broad step that was taken in 1976 — which was a major innovation, not in Irish law but generally in law and perhaps deriving from the special situation with regard to marriage in this land — we should certainly go on to give the protection of that code to the mother of an illegitimate child who may be living in that home which is being subjected to violence and molesting by the husband. It may be the reverse situation, but the more likely one is that the mother will have had some affair as a result of which there is an illegitimate child and maybe the circumstances under our law do not permit legitimation because at the time of conception the mother could not have made a lawful marriage because she was already married. It was a product of an adulterous union or something of that kind.
It should be permissible for a court to make a barring order in such a case. I do not think there is anything very radical in that. I would argue for a different, more extensive code in regard to all these situations. I am merely saying that there should be protection extended in this case on the application of the spouse, where the court is satisfied, in the language of section 2 (2), that there is a threat to use violence against, molest or put in fear the applicant spouse or any child, and the child is defined so as to exclude the illegitimate child, if I understand the definition.
This Bill proposes to deal with spouses in the context of marriage as we understand it constitutionaly and as is provided for in section 2 (1) (a). It is important to note that a barring order may direct the other spouse — in this Bill called the "respondent spouse"— if residing at a place where the applicant spouse or the child resides, to leave that place. The word "reside" is very important. In section 1 the interpretation states that:
"child" means any child of either the applicant spouse or the respondent spouse or of both of them or adopted by either or both of them under the Adoption Acts, 1952 to 1976, or in relation to whom either or both of them is in or are in loco parentis, provided that he is under the age of eighteen years...
In that situation an illegitimate child is covered or provided for in this Bill because it deals with spouses and if the parent of an illegitimate child happened to be a spouse for the purpose of the measure then that child is afforded the same protection. In a situation where an illegitimate child existed and you had two people cohabiting the Bill does not provide or afford any protection in that regard. In the illustration I have given the Bill will provide and afford protection for illegitimate children.
I did not understand the Minister to say that at the beginning and I wonder under what leg of the definition of child the illegitimate——
In loco parentis.
In loco parentis, very good. I accept that. I understood the Minister to say at the very beginning that the illegitimate child would not get protection.
An illegitimate child in circumstances where you have cohabitation existing would not be protected because the Bill we are dealing with specifically refers to spouses. Spouses can be understood only in the context of lawful marriage, not common law marriage.
I do not propose to try to amend this Bill to take in these situations. I understand the difficulties the Minister may be facing. I accept, therefore, that this Bill purports only to deal with a marriage situation where there is a spouse. I accept that. I would like to see it more clearly expressed than I find it to be in leaving an illegitimate child dependent upon the establishment of the fact of in loco parentis. The illegitimate child in question might be on a visit home to its mother, or something of that kind, and in loco parentis might not be involved. Perhaps under some other law another spouse was in loco parentis to this child, and maybe this very visit is the cause of the fury and the violence and there may not be a factual situation which I understand is the basis of in loco parentis. If the child is an illegitimate child of either of the parents and there is a marriage relationship justifying the applicant looking for a barring order against the respondent, the applicant should be entitled to get that barring order if the threat of molesting, violence or fear is directed at an illegitimate child, perhaps coming to their family home, maybe on a visit, maybe not in loco parentis relationship to either of the spouses. It is not as if I suggested that this should be amended to include any child under the age of 18 years. I am not proposing such. I am proposing that the protection should be available and should be within the power of the court clearly to give, without requiring proof of the situation of in loco parentis, if there is an illegitimate child being threatened and if his mother — we are talking about his mother in 99 per cent of the cases — looks to the courts for assistance and wants to bar her husband from the home because that home of theirs has a resident — maybe for a short time, maybe during holidays from school, maybe in all sorts of human circumstances. Because that resident has not stamped legitimacy on him or her, the court cannot give the barring order under this section as drafted unless, as I understand the Minister intends, the court be enabled to do if it is an in loco parentis situation. To make the matter absolutely clear, the child here should as in many taxing statutes, be included as being an illegitimate child who, in a marriage situation — which is all that one is dealing with at this time — is the object of the violence or molesting, or the subject of the threat. If it deems fit to do so, having heard all the facts and being satisfied about the violence, and being satisfied that the child is there over a period of time which makes the barring order relevant, the court has the power to do so, Obviously, the court need not do so if the child is going away on a Tuesday or something of that kind, but the situation may be otherwise. The child may be sick in bed, or there may be all sorts of circumstances which may make the child stay in the house for some length. It does not compel the court to make such an order. It merely entitles the court, in justice, to do so if it is satisfied in justice that it should do so. The whole code is intended — and has a very fruitful effect — to give the courts power, which they had not previously got, to intervene in these situations. I have not put down an amendment on this — like the Minister, I have been doing other things — but this amendment might be made to the section 2.
The Chair thinks that we might be trespassing on section 2 and hopes that this discussion will not be repeated on section 2.
I was giving that as an illustration of the need for a proper definition in this section of what "child" means, because it does not depend merely on the effect of section 2.
First of all, I am satisfied that the purpose of this Bill is to strengthen the 1976 Act. I am also satisfied that it would go far beyond the 1976 Act in that connection. If the child comes visiting to a particular home for a temporary stay, I hold that that spouse is temporarily in loco parentis. I also believe that the existing criminal law 1908 Children's Act and, in a sense, the Offences against the Persons' Act, 1861, provide the additional and adequate protections for an illegitimate child in the context of that child being in a home where there did not exist two spouses. This Act is proposing to strengthen the 1976 Act in relation to spouses and marriage as we understand it.
If there are any further areas in connection with greater protection for children, it might be more appropriate that that type of legislation would be looked at in the light of the Task Force report and legislation that, I expect, will be introduced in the Dáil some time later. For that reason, this Bill is adequate and goes for enough to cover any likely risk to an illegitimate child. If it so required, I am sure that future legislation in a separate Bill would care for any inadequacies and in that connection I will take note of the points the Seanator has made for further examination in the context of any future legislation.
I would like very much to be able to say that I am satisfied with what the Minister has just said, but I cannot. In loco parentis is a serious matter of proof, much more serious than the existence of the illegitimate child in the house. The fact of illegitimacy can be questioned. The Minister cannot overestimate the degree of resentment socially about treatment of illegitimate children. A decision has been made to exclude them in a Bill of this kind, which is an amending code. There is no proposal by me to extend this legislation beyond the marriage situation. I accept that as being the ambit of our debate, but in a marriage situation where we have an illegitimate child situation, I ask only that the court be given the power to make a barring order where the subject of the threat is an illegitimate child.
Is that outside of marriage?
No. I accept the parameter.
That is provided for.
With respect, the definition of child does not include "illegitimate child" and the only illegitimate child who could be protected, or be the ground for a judicial order of this kind, would be one who, for other reasons, could be established as being in loco parentis to either of the parents. That may be far too narrow a definition of a marriage situation for the illegitimate child who may be involved. I do not know whether the Minister would take note of the importance of this code. We should not hark back to the Children's Act in this regard. This barring procedure has almost had the effect — subject to correction which anyone may be able to administer to me — of stopping the procedures of divorce a mensa et thoro. The judicial separation, as they call it in Britain, the bed and board separation that we talk about, is almost over. We are talking about the kind of intervention by courts which is most frequent. I am not aware of any illegitimate child who has been disqualified, because of illegitimacy, from the benefits of this code. I merely note that the Bill and the code do not give protection to an illegitimate child, or to the mother of an illegitimate child who may be in the family home. I am not saying that the court should in all such cases make a family order, although they make a fair number every year. This is therefore a very real, social situation and I ask that the statute, which depends upon a marriage situation, does not go beyond that, and that the child who may be the ground for a barring order may be illegitimate as well as legitimate. I am not satisfied with what the Minister has said with regard to this.
When is somebody "under the age of 18 years"? Do you attain the age of 18 on your eighteenth birthday? Are you under the age of 18 years the day before your birthday? A different language is used in different codes. This is a small point but when are you under the age of 18 years?
Up to the day before your birthday.
Not on the day of your eighteenth birthday?
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
This is the appropriate section for me to deal with this point. The Minister may remember that after the Second Reading I gave an indication of my intention to propose certain amendments. One of the amendments related to a specific provision for the withdrawal of implied consent, which is there in the case of a marriage relationship and which effectively and historically has prevented prosecutions for rape within marriage. The Minister may have noted that I did not circulate the amendment and I would like to say why. My reason for not circulating it or indeed any amendment until we had a discussion on this section was that, on consideration of the law that seems to be applicable on this subject, I thought my proposed amendment was inchoate, that is, not realised in action. What I proposed was that, if there was a conviction for an offence under the barring order code, thereafter there would be no implied consent and a prosecution for rape could lie against a husband who had committed an offence against the barring order. My reason for not pursuing that amendment was that I came to the conclusion that, instead of extending the scope for prosecution for marital rape, it could have conceivably narrowed it.
If the House will bear with me I will say what I think is the law with regard to this matter and why I think an amendment of the kind I was proposing would have narrowed it. I ask the House to believe that, even if I do not cite all the authorities as if this was a judicial chamber, I have read them.
By her marriage a wife is taken to consent to sexual intercourse with her husband, while ordinary matrimonial relations subsist between them. Because of that consent the crime of rape — a crime involving intercourse without consent — cannot occur during the subsistence of that relationship. The relationship to which I refer is not the status of husband and wife as such; it is the ordinary matrimonial relationship which subsists between them. As is known to everybody, that consent does not permit forced intercourse which would give rise to a prosecution for violence, cruelty or something of that kind. The consent implied by marriage, it would appear, can be revoked, and some events clearly do amount to revocation. For example, it has been held in Britain, where they were considering an order in language similar to the language used in this country, that in judicial separations the petitioner be divorced and separated from bed, board and mutual cohabitation with the respondent. That is the language of the order I am looking at which was made in this country in 1976. Similar language led to a decision in Britain that where such an order is made there is a revocation of the consent and that, while the status of husband and wife may subsist in the view of our law, the ordinary matrimonial relationship between the parties has ended and the implied consent is revoked.
In observations, not direct findings, in two British cases it appears that there will be a revocation of that consent if there is a separation agreement, provided the separation agreement contains a suitable clause amounting to revocation of the consent; and prosecution for rape, it would appear under our law, can lie even if there is a marriage subsisting at the moment. The test is therefore one of fact — whether there is implied consent that the marriage relationship has or has not been revoked.
My view on consideration of the matter, though it has not been decided on, is that if a barring order is made it will amount to a revocation of the consent and that prosecution for the crime of rape will lie. I do not understand any authority to exist for that but it is the logical development of the present judicial findings. I fear that to express it in statutory language by way of statutory amendment might narrow the breadth of the development which might otherwise be expected judicially to arise. Therefore, an amendment of the kind I had in mind to extend protection to a wife and to extend against a husband the liability for prosecution for rape would be effected in a direction I did not wish.
The question of marital status is less important than the fact of the consent. It is clearly ended where there is a divorce a mensa et thoro. It would seem to be ended where there is a separation agreement with appropriate clause. It is, therefore, a question of whether the consent, which is implied from the status, is in fact revoked. What the Legislature has been doing is trying to remedy real matrimonial difficulties while feeling unable to amend the law as far as it concerns status. It is appropriate on this section that I should express myself on some problems which could be detached from the question of status but have been left attached and therefore unresolved.
I should like to mention something for the Minister's further consideration between now and Report Stage. Take the Succession Act code. The right of a spouse to succeed under the Succession Act can only be judged to be avoided after the death of one of the spouses where a divorce a mensa et thoro has been given during life or there has been an express waiver. It would seem to me, because of the effectiveness of this code and the recession of the operation of the matrimonial code in our High Court, the ordinary separation code, because we are not getting divorces a mensa et thoro which would prevent the succession under the Succession Act, that we ought to attach to the consequences of a barring order at the discretion of the court the right of succession which an erring or violent spouse has at the moment. It seems extraordinary that someone should be barred from the family home and be entitled in the administration of the estate to claim the family home under the Succession Act. That is the present position. It is wrong and should be corrected. All that is required is to allow the court, as it knowingly does when it grants a divorce a mensa et thoro and as the Succession Act provides, to make an order under this code barring a spouse for Succession Act purposes. The discretion to make that order should follow logically from the existence of the barring order procedure in the context of the relative disappearance of the divorce a mensa et thoro code where the Succession Act right disappeared.
We are not talking about cases where there is such rational arrangement between the parties that there is a mutual waiver of rights which, of course, is what is sensibly looked for in these situations. I am contemplating the case where a waiver cannot be got, where the relationship has led the court to say this person's conduct is such that he should be barred from that home. The court should have the right to make another order going no further than under the divorce a mensa et thoro code in terms of Succession Act consequences. The court should have the right to do so but not have it follow as a necessary consequence. I merely ask that the court be given the authority to do it without the court being obliged to do it. That is for the Minister's consideration between now and next Stage.
I should like to refer to subsections (4) and (5) of section 2 which are an extremely significant part of the Bill. Subsection (4) extends the barring order to a possible 12 months after the date of its making. Subsection (5) states that on or before the expiration of the barring order a further barring order may be made with effect from the expiration of the first-mentioned barring order. Twelve months in a marriage is a very long time and, more significantly, 12 months in the life of a child aged one, two or three years is an eternity. We should pause when talking about extending this Act to 12 months.
I sympathise with the Minister in Bills of this nature because Bills which deal with areas of marital breakdown are by their nature very delicate. We are taking this very big step of making it possible for a violent spouse to be excluded for a considerable length of time, to be kept out of the marriage home and there are sanctions behind that which are tougher than they used to be. We are also making provision that the order can be extended so we might be talking about longer than 12 months. The extension to 12 months was the result of representations of a great many people who felt that the previous period was not sufficient and it obviously was not sufficient. I pause on this section because the Bill is entitled the Family Law (Protection of Spouses and Children) Bill, and, therefore, we must think of this section in the context of the family. I have had representations from groups, including the AIM group, who are very seriously worried that we should take this step of extending a barring order to 12 months or longer without any other indications in this Bill or anywhere else that that extension to 12 months will be accompanied by some new procedures to try to get that marriage together again.
If we use this sledgehammer of the law forceably to keep somebody away there is a grave danger that the marriage will be finished after 12 months or longer. Whatever about a relationship with a spouse after a year, certainly a relationship with any small child after a period like that is almost irretrievable. We have always had the very strong view that one does not separate parents and children at that tender age. We are now passing a Bill which will separate a parent from children for a very long time. We must not do this without bending our minds to how we can try to put together again a marriage which is in severe danger of foundering completely. We are all aware that we have not a very satisfactory means of dealing with marriages which are foundering completely.
I have a letter from the AIM group which strongly recommends the appointment of a family liaison officer, a member of the Garda Síochána, who would be available to liase with the families and advise other members of the Garda when problems arise with regard to breaches of barring orders. They make this suggestion constructively, for rehabilitative purposes, because they feel that simply to enforce a barring order and leave it at that is a sweeping and inadequate method of dealing with family violence, which occasions family breakdowns. Will the Minister give an indication of what thinking is going on in his Department about the implications of such a large separation as a result of the new extension of the barring order?
Before we leave section 2, I would like to refer to what Senator FitzGerald said. I do not know whether it is in order to comment upon an amendment which has not, in fact, been moved, but I agree with what the Senator said. I am glad that the Senator did not move his amendment because I agree with him that the effect would have been limiting. I have never felt that it was necessary to make statutory provision for so-called marital rape. In rape, the onus of proof is on the woman to prove that the act was both unlawful and that it took place without her consent. Whether she is married or whether she is unmarried the obligation of that proof is upon her. The key words, therefore, in the definition section of the Criminal Law (Rape) Act, are "unlawful" and "consent". We must not take "unlawful" to mean outside of matrimony and not otherwise. Senator FitzGerald gave us a list of situations in which intercourse between married people can be taken to be unlawful. It seems to follow logically, therefore, that where a barring order has been granted, a barring order which is in effect a request to the court from one spouse that cohabitation may cease, the spouse who applies for the barring order also withdraws consent to sexual intercourse.
I entirely approve of this section. I sympathise with Senator Hussey's concern about the retrieval of a marriage or about the rehabilitation of a marriage that has broken down. That does not come within the province of law. That seems to be in the province of either religious instruction, social targets, moral uplift or some other area of philanthropic concern. A barring order is something which is granted by a court when one spouse can prove to that court's satisfaction that the other spouse is a danger, a nuisance or a threat to the family home and the peace thereof, to herself, it is likely to be a woman, and to the children. It is a crude instrument, the kind of instrument which we would prefer was not necessary, but it is necessary. It is granted by the courts only when the proof is fairly solid. Therefore, I totally approve the extension of the barring order. In a house where, for instance, there are children and the husband is violent he will have to be barred in the interests of the children. If the mother and the children cannot rest secure for a period of 12 months at least knowing that they will not be violated, that the home will not be violated and that their persons will not be threatened, what hope for tranquility is there for such children? It is very often the case that children and wives live in almost daily terror of violent husbands who take extraordinary actions, from breaking into the place, to following them around the streets, to picketing them openly, and pillorying them in all kinds of ways. I totally agree with this section. I like the sense that this barring order can be renewed yearly.
The retrieval of a marriage is a different matter. The last time we discussed this Bill I drew attention to Lord Devlin and the famous case where he was talking about the two African tribesmen who had an agrument about the land. At the end of it the magistrate said to the convicted party; "I can punish you, I can force you to make restitution but I cannot make you an upright man". The law cannot make one an upright man. All the law can do is provide the instruments which will protect one or punish one, or allow restitution to be made to one. The retrieval of a marriage is not something that a Bill like this can concern itself with at all. It needs other agencies, natural and supernatural, to achieve that.
I do not intend to deal with the amendment that Senator FitzGerald did not move, other than to state that most of his contribution referred to matters dealt with in the Criminal Law (Rape) Act. One aspect that may not have been dealt with on that occasion was the problem of a barring order and the likelihood of a spouse returning to the residence or the place where the other spouse resided, in the first instance being in breach of that barring order, very likely, and then, secondly, proceeding to have intercourse with his wife. In that situation it would be a matter for the Director of Public Prosecutions. Because he is an officer provided for by law with a separate function, I do not intend to make any comment on what his decision might be in that connection. We have not any precedents in this or the other types of situation the Senator mentioned. For that reason it is difficult for me to anticipate or presume what might be the outcome.
In relation to what Senator Hussey has said—and I will take Senators Martin's and Cassidy's remarks in the same context — Senator Martin was perfectly correct in his understanding and interpretation of what this section is about. I do not want to appear to Senator Hussey to be in any way ignoring or disregarding her concern but I must say to the Senator that in view of the vibes I had been receiving from her in the past she would seem to have done a somersault here today. Barring orders are being extended in this Bill because it was found that the 1976 legislation — brought in by a different Minister and a different Government — was good legislation but needed strengthening. For that reason, having monitored, examined, consulted and listened for many hours to quite a considerable number of groups of women, apart from AIM, apart from the Council for the Status of Women, the ICA or such bodies comprising a considerable membership, they all indicated total satisfaction with the new provisions for the extension of barring order periods.
Barring orders should only be considered as temporary measures, I realise that it is a very serious decision for a court to have to take. It is a very serious decision for a court to have to take in relation to treatment of a child or young person, or removing him or her from the family for one reason or another. This is a very sensitive area. It is the court involving itself in an interference or intrusion into marriage. The consequences must be taken into consideration. What is in the best interests of the child, the parents and all that constitutes the family must be understood and an evaluation and assessment by the court must be carried out. Nevertheless, where a barring order is made — the application is made not necessarily after the first threat, or the first use of violence; at least it has been conveyed to me as an application that usually comes after considerable periods, oftentimes too long — often it is made for the purposes of indicating a very serious warning to the other spouse while at the same time providing protection in the short term. Hopefully it will assist in bringing about an understanding or reconciliation and allowing perhaps for other interests to endeavour to examine the root of the problem in the absence of one of the spouses.
To consider then that the court is likely on all occasions to respond with the 12 months maximum period in the District Court would be unrealistic because the court will assess what is in the best interests of the family. The number of occasions that the maximum would apply might be very few. I can only speculate on that area and I do not like to do so in the House.
Perhaps Senator Hussey had good reason for not referring to section 11 because we were not dealing with that section. I know the Senator was conscious of all the sections in the Bill. But the fact that we are discussing this aspect makes it important that section 11 be referred to in the same context. That section provides that either spouse may apply for the discharge of the barring order or a protection order to the court that made the order and thereupon the court shall discharge the order if it is satisfied that the safety or welfare of the spouse or child, in respect of whose protection the order was made, does not require that that order should continue in force. That is a provision which is caring in so far as it allows for either spouse to make application to the court again to discharge the order if circumstances change. Of course, circumstances would be presumed to have changed for the better only if such a discharge were to be granted or given.
I also believe that the court, in giving that discharge, when it states that it must be satisfied that the safety or welfare of the spouse or child is not at further risk or is not at risk at that time, will not necessarily just accept that a change has occurred because one of the spouses says so. Presumably, that spouse could be intimidated or threatened into making such an application. There are very peculiar and different circumstances that might force that person into altering or changing her or his mind. For that reason the court again is clearly interested in establishing that the purpose for which a barring order is made is to ensure that protection is provided to the spouse, or child, or children who are at risk. Equally in discharging under section 11, the court is anxious also to be satisfied that that discharge is being made only on the basis that the court is satisfied again that there is no longer any reason to provide that type of protection.
I thank the Minister for his reply. For some reason that escapes me the Minister seems to be a little sensitive when it comes to discussions with me in these areas.
On Second Stage I wholeheartedly welcomed and congratulated the Minister on the Bill. I have done no kind of somersault at all. I repeated a few minutes ago that I saw the need for extending the barring orders to 12 months as a result of the experience of people dealing with these unfortunate cases. I intervened simply because we have a certain amount of family law going through these Houses and because we must implement these important provisions and consider their implications.
I asked a very simple question on this section as a result of representations made to me. For example, with the precedent set by the appointment of a youth officer in the Garda, I asked whether the Minister had any knowledge of any new appointments to be made in the Garda to help them to deal with the whole area of family violence and barring orders. That was a perfectly simple question. There is no need for Senator Martin or anybody else to point out to me that what I am talking about is not practical. We are asking for something to be brought into this legislation.
With regard to section 2, subsections (4) and (5), has the Minister any plan or have his Department any plan concerning a new section of the Garda to deal with family violence? We are bringing in new legal provisions regarding family violence which have considerable implications. It might be worthwhile mentioning, as I said on Second Stage, that District Justice Delap, for example, said it was necessary for him to go as far as, when the barring order was given against a violent spouse, usually a man, requiring the man to turn up at the Garda station on Thursday, Friday and Saturday nights a quarter of an hour before closing time to make sure that, if the man was in a state where he might be irresponsible enough to try to beat down the door, the Garda would know about it. My questions on this section relate purely and simply to the implications of a very long barring order for a marriage with children. Has the Minister any wider information to give us perhaps on back-up for the Garda in dealing with family violence.
In case I seem to be overreacting to Senator Hussey, it may be because of the time of the year. With regard to the point raised by the Senator in connection with the provision of the family liaison officer, I accept that it is a very valid and useful point. The Garda community relation's section at the moment keep in close contact. I am informed by various women's organisations and groups involved in this area that this is very useful. I agree that this is much different from what the Senator is envisaging, because she was talking about something that would keep them in close contact with the family or the individual within the family or both parties, both spouses, and observe in the case of the children.
I feel that because of the very delicate, complex and sensitive area we are dealing with such a provision would have to be very thoroughly and carefully considered. One must consider that the involvement of the Garda in this area even at present can have serious complications unless the situation is handled very carefully and delicately. However, I am prepared to request that the point made by the Senator will be examined. I am not so sure of what the Senator requires in relation to requiring the spouse, presumably the male spouse, to turn up at the local Garda station 15 minutes before the public houses close. However, is Senator Hussey proposing to interfere with the freedom of the individual and to prevent a person from moving freely and doing lawful things when he has not been convicted of any criminal offence? The court has not imposed any restrictions on his liberty except in so far as a barring order has been made which prevents him from returning to his residence or the residence of the other spouse, child or children. I do not think that such a proposal can be considered in realistic terms. If I were to be totally illogical, I might say that the Senator might wish to see it extended to freedom of speech so far as the person barred is concerned.
I must make this point clear in case I get a reputation for being something that I am not, I would like to make it quite clear that what I was referring to was a speech made by Justice Séan Delap on 22 February in Liberty Hall on the subject of domestic violence where he said that he made a rule "that drunken or violent husbands must sign on in the Garda station on Thursday, Friday and Saturday nights a quarter of an hour before closing time because so much family violence occurred as a result of drink." He and several other people apparently found that this very simple mechanism was in fact preventing a lot of suffering. He thought it was a very good idea. I am not suggesting that we put anything like that into law.
An Leas-Chathaoirleach
Could the Senator give the source of that quotation to the House, please?
I am quoting from something which I wrote down at that meeting in Liberty Hall, so it is my own précis of what he said. I certainly would not believe in interfering with the freedom of the individual and put that into law. However, I must say that to talk about being afraid to interfere with people's freedom is a little bit naive of us, because after all what we are doing here all the time is interfering with people's freedom for the common good. We are here to interfere with our own and everybody else's freedom in order that society will be properly regulated. If we could find some way of interfering with people's freedom so as to help marriages in distress, I would be very glad of that interference. Having made that point, I welcome very much the Minister's serious consideration of the necessity for looking into a new method of giving the Garda some extra structure for dealing with families affected by violence, in particular families affected by barring orders, given that the Garda are there on the ground in the neighbourhood and are aware, perhaps more than anybody else, of what is going on. I welcome the Minister's opinion of what I said. I am glad to see his consideration.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Subsection (2) provides for a protection order being made notwithstanding that the summons has not been served. I hope to deal with that on the amendment which I propose to the next section. The problem arises with regard to making any kind of an order the breach of which has criminal effect without the person being summoned before the court. That has implications which can be dealt with on another section.
Question put and agreed to.
SECTION 4.
I move amendment No. 1:
In subsection (2), page 3, line 37, after "order" where it secondly occurs to insert "at the time of the oral communication or within any reasonable time thereafter".
When I got the amendment sheet with the amendments on it I was very disappointed not to see anything with an asterisk on the sheet, which would have led me to believe that amateur efforts had been professionally polished and ears had been opened and maybe some point made had been taken and would be dealt with.
In section 3 there is a provision that a protection order may be made and that it would expire with the making of a barring order, notwithstanding that the summons for a barring order had not been served. If the protection order is breached, it gives rise to a criminal offence under section 6. It also gives rise, under section 7, to a power in the member of the Garda Síochána to arrest without warrant. There is provision for copies of protection orders to be given to the Garda through the courts and to be sent to the applicant spouse or the respondent spouse, to the person who would be affected. It is also provided that even if there is non-compliance with the requirement to give copies of the orders to the spouse or the Garda, the order is still valid.
Section 4 (2) provides that oral communication to the husband by the wife of the fact that a protection order has been made, together with a copy of the order, shall be taken to be sufficient notification of the making of the order. You have the husband on valium or some other drug. He may be still be on the blinder which gave rise to all the trouble, he may be partially deaf and he may be so angry that he cannot hear what his wife is saying to him and he wakes up a couple of days later, or whatever period of time it may be, and finds a wretched piece of legal paper lying around the place addressed to him. This, if it is to work at all, will have to be some kind of printed document on which some character in the court will put a stamp and he will be expected to remember what his wife, who seemed to be as unreasonable as ever, had said to him on the day she was telling him about the order she had got from the court that day or the day before. He, however, will be regarded under this section as having been duly notified of the fact that he is the subject of an order under which, if he breaks it, or if a member of the Garda Síochána has reasonable grounds for believing that he has broken it, he can be arrested without warrant and he can be guilty of an offence under section 6.
In regard to this I would ask that a legal order and the oral communication should either come together or within a reasonable time thereafter. There are no time periods set out in the amendment. All we can do here is to ask the authorities to make rules of court appropriate for the expeditious hearing of an application. That is as far as the legislature can go in regard in that matter. I have not studied the institution whereby these rules are made.
It seems to me to be highly undesirable that the law should be weighted so much against such a respondent. It brings to mind the famous words of Judge Adams: "You leave this court with no other stain on your character than that you have been found not guilty by a Limerick jury." There is no other stain on this man's character than that he was arrested. I do not think that consequence should follow: there should be more formality involved in it. I know the protection order is that he must not use violence or molest. That order is made on the basis of what the woman had said about him to the judge. It may be that when all is over he could prove that she was every bit as bad as himself. Courts take a view on the facts. It is different from interim injunction proceedings. I note the Minister has abstained from providing for an interlocutory injunction. I would recommend the amendment or something like it.
I disagree with Senator FitzGerald on this point. It seems to me that the spirit of this Bill meets what was seen as a flagrant defect in our legal and police procedures. The purpose of this Bill is to protect the defenceless. In most cases it is to protect the woman and the children. It is a matter of public scandal that even after the passing of the previous Bill violent spouses were able to play ducks and drakes with the police and with the law. The delays which operated between the granting of a barring order and its execution, the extraordinary ambiguities that existed and which allowed violent husbands to ignore or to circumnavigate the intentions of the court and the law, are quite notorious. I happen to know such cases personally but any of the women's movements will give you an archive on such cases of horrendous proportions. We are talking about people who live in fear and trembling of a violent person.
In the case that Senator FitzGerald brought to our attention, in the first place a barring or a protection order has already been issued. That is the first point. Therefore, a court has already judged such a person and I do not think it does that without sufficient cause. I am not a lawyer, but suppose a man is "on the blind" as he calls it — it is not a very suitable phrase I think you would agree; "on the jar" would be the phrase, or "on a blind"— but suppose he is blind drunk and suppose he is deaf, the terms of the Bill are quite clear; it says "an oral communication together with production of a copy of the order." So, the man would have to be both deaf and blind to be unable to receive the message involved here, an oral and written communication.
He might even be a Senator.
There are Senators and Senators. I do not know if Senator FitzGerald is referring to himself or to me in connection with the matter. I did not know the word "Senator" was a term of abuse until now. It seems that that provision is a very good provision because it means that the delay is covered properly by a legal provision and frankly I am not overwhelmed with sympathy for somebody who is incapable of receiving visually or orally a legal document barring him from committing violence against a spouse or a home. My sympathies are entirely with the threatened person in this matter. I may not be a Senator for much longher.
We would all be sorry about that but the Senator, not for the first time, has misunderstood what I have actually said. Of course I have not objected to the proposed provision for the protection order. There is no objection by me to it. Indeed I welcome the proposed development of the protection order provision. The person whom I wish to protect with my amendment is the person who may be unjustly treated by virtue of the procedures proposed with regard to the protection order. I am not concerned with the particular form of my amendment. I am concerned to know that a man is properly informed of a court order the breaching of which may lead to loss of reputation, possibly criminal conviction and possibly arrest without warrant. We, the Legislature, ought to be concerned to see that in all situations persons are protected from such consequences until they are proved guilty.
Senator Martin said, if I understand what he said, that a barring order in this case will have been already made. If I understand the section, a barring order need not necessarily have been made; an application for a barring order will have been made — a different matter. We are talking, therefore, about a case where, on the basis of the facts offered by one side, the court may properly and wisely make a protection order. I am merely suggesting that we ought to be very careful to see, as the Minister is proposing in section 4 to do — but I think defectively — that the fact of the protection order is duly and properly notified and in such a way to the person against whom the complaint is being made that he knows he is now subject to the attention of a court with regard to what he does. That is all I am concerned about. I cannot divide, with a splendid sweep of the imagination, the race of mankind into those who deserve protection and those who do not deserve protection. Our laws are concerned to protect everyone from one offence or another or should be so.
I am not a lawyer but if I understand English, section 4 begins with the following sentence — and we are talking about section 4——
We are talking about amending section 4.
The beginning of section 4 says that a barring order or a protection order should take effect on notification of its making being given to the respondent spouse. If I understand English we are talking therefore about an order that has been made. A protection order——
You do understand English and you know what the word means without an awful lot of talk from me or anyone else.
"A barring order or a protection order"— I know perfectly well what "or" means; that is not the point —"shall take effect on notification of its making,"— which I take to mean, of its having been made —"being given to the respondent spouse". We are speaking about a protection order or a barring order that has been made. The English in that sentence bears the construction I have placed on it.
I am not going to let the Senator get away with this. The Senator said that a barring order will have been made. He said that earlier, where a protection order has been made. That is not correct. I am talking about the notification of a protection order which may be made under section 3 without a summons having been served on the person and without a barring order having been first made. The Senator cannot have that position as he originally stated it. It is incorrect and he should correct himself or accept correction.
I accept correction if it can be proved to me. How is the protection order made?
Read section 3.
The protection order has already been made. In other words, evidence has been put forward to the extent that a protection order is necessary.
The purpose of section 4 is to require that instead of ordinary service of the barring order or protection order all that is needed is that a copy be produced to the respondent spouse at the time of the oral communication of the fact that the order was made, or otherwise in such circumstances that the oral communication and the production of the copy can reasonably be linked in the respondent spouse's mind so as to effect a single transaction. I am advised, and I am satisfied that the words "together with" effectively achieve that intention. In any event, if the copy of the order is not produced at the oral communication of the fact that it has been made, the later production of the copy can be accompanied by a fresh communication of the fact that it was made. When the wife or somebody on her behalf says to the husband "Here is the copy of the barring order", this will amount to telling him again that the order was made. There will be some measure of flexibility because the courts will, of course, give a reasonable interpretation to the section, bearing in mind the interest of the applicant spouse — the weaker party — on the one hand and, on the other, the interest of the offending spouse, who is entitled to have proper notice of the order before he can be adversely affected by it.
On the other hand the Senator's amendment, it seems to me, is open to the objection that it would allow too long a period to elapse between the oral communication and the production of the order. In other words it does not adequately convey the idea that production of the document should be linked with the communication. From the respondent spouse's point of view it would, in my view, introduce an uncertainty which would be most undesirable having regard to that spouse's possible criminal liability under section 6. From the applicant spouse's point of view it would also be undesirable in that it would tend to invite disputes as to whether any delay in producing the copy was or was not reasonable.
From a practical point of view I do not see the point as being of any great importance since, as I have already mentioned, the problem can in any event be got over by simply using such words as "Here is the barring order" when producing the copy.
It must be recognised that the barring order applications must be made before a protection order is granted, and this is granted, of course, for the purposes of providing an interim protection. Section 3 — I have to refer to it in the context of the amendment to section 7 — states—
(1) If between the making of the application for a barring order and its determination, the Court is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant spouse or of any child so requires, the Court can make an order....
It is quite clear that the court must be of the opinion and I am sure the court must be satisfied about this opinion. I hold the view that the urgency with which this type of protection might be required would be such that if one had a seriously violent husband or spouse it would be a very serious risk once he discovered his wife had made an application for a barring order. It might provoke a greater violence towards her and put at more serious risk herself and her children than she was likely to encounter before the application for a barring order was made. This is something that has often occurred in the past. I know that from personal experiences. Heretofore, we had no legal mechanism whereby we would rush in and say, "Right, you cannot do this, that or the other, or if you do you commit offences". Consequently, we have created new offences. It is an enlightened method of doing the thing. I know that Senator FitzGerald is not criticising the section that provides the protection order. His concern, it appears to me, is about the fact that somebody might be arrested without having got adequate notice. The fact that the court must be satisfied and its opinion must be such before the protection order is granted is important. The protection order is only obtainable after the barring order application has been made, which surely the spouse would be aware of. All reasonable and normal attempts must be made to ensure that communication is given to him even if he happens to arrive at his home that night which he has a right to do in the absence of a barring order having been made which would be decided upon at a later date. He can still go back to his place of residence but he is prevented from using violence or threats. That is different from the barring order which prevents him going back to his place of residence.
In many other situations today people convicted in court might not necessarily be aware of the conviction because they were not in attendance or, if they were, there were not in a position to comprehend, or for other reasons which the Senator has referred to but that does not necessarily preclude a member of the Garda Síochána from having the power of arrest under many other statutes. Simply because the person about whom the garda has suspicions and he proceeds to arrest him, does not necessarily mean that that arrest, based on reasonable suspicion, applicable in the case of the Garda, is not justifiable because the person did not know he had been convicted. Here the power of arrest is being provided. The Garda, I am quite satisfied, would not proceed to arrest the individual against whom the protection order was made unless at the time of arrest he indicated what section of a statute he was making the arrest under. Should this Bill become law he is making the arrest under the Family Law (Protection of Spouses and Children) Act, 1981, as it will be.
At that point the person is informed of the fact that a protection order has been obtained. I cannot see the question of being arrested without knowledge being communicated either orally or in writing, or both, arising. I cannot see a situation in which that can arise. Even if it were to arise in a particular situation I doubt if any member of the Garda would proceed to make an arrest. I cannot expect that they would, or should, without notifying the persons involved the basis under which the arrests were being made. We cannot overlook the great risk a wife and children may be in. Section 4 provides that a barring order or protection order shall take effect on notification of its making being given to the respondent spouse. It also provides that communication to the respondent spouse by or on behalf of the applicant spouse of the fact that a barring order or a protection order has been made, together with a production of a copy of the order, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification. Clearly in that it is provided that where it is possible to achieve the greatest or maximum type of notification that is fine but where it is not the seriousness of what might occur if that person was to get from "A" to "B" and confront his wife or children, then the risk that might be inherent in that person making contact might be so great as to justify, as I feel, his arrest.
To help me understand the matter as a non-lawyer, I should like to ask the Minister how soon in practice after the making of a protection order is a copy of it available to the applicant spouse?
I understand it would be available in court immediately afterwards or communicated to the Garda under section 5.
Section 5 is no breach. Non-compliance with the notification under section 5 does not affect the validity of the order. Therefore, under the Bill as proposed, if I understand it, notification is deemed to be given to the person who had not been heard by the court on the matter even though he was not in court; he had not the summons served on him and all he had was some mumble from his wife. The language of the section is "Oral communication to the respondent spouse by or on behalf of the applicant spouse of the fact that a barring order or a protection order has been made, together with production of a copy of the order..." At this stage, before he has been heard, he is being exposed to his actions being so construed as being a breach of the order even though all he has heard about it is that his wife has said to him or somebody on behalf of his wife has said to him that this order is being served on him, and he is subject to arrest. Let us all have faith in everyone but people make mistakes and the Minister, judging from the language of his Second Stage speech, has his own hesitancies about this because he told us that he did not provide for the making of an ex parte order. That is correct and this is in the important matter of a case where there has been no barring order yet made. No court has heard him on the subject. He has not been served nor has he come to court. A protection order has been asked for, after an application for a barring order has been made. But that is all that has happened at this stage from his point of view. There is a dispensation from a necessity to see that he is properly served by somebody. I would be quite satisfied if it was by anybody.
I see Senator FitzGerald's point. After all, the protection order is concerned about somebody being judged in his absence. Let us be clear about that. This is a most necessary thing. This is a law that we have been crying out for because of the number of people who avoid summonses and because of the various ploys and strategies to which the spouses have gone, not turning up in court, drawing things out, refusing summonses. This legislation is to help people. After all, what does a protection order say? It says that the respondent shall not use or threaten to use violence against or put in fear the applicant, spouse or child. That is not too much to demand.
The law already demands that one does not use or threaten to use violence against or put in fear the applicant spouse or child. This is only giving a certain amount of emphasis to something that is already demanded by ordinary common decency and by the law of the land as it stands. A protection order does not stop a man who does not turn up in court from going into the family home. It merely demands that he behave like a civilised human being. It just gives a little extra force to that until the case can be heard. That can be a crucial time because very often the threat of a barring order before the summons is served can come at a very strategic moment. This is something that actually provides a temporary screen for somebody threatened with violence. I see Senator FitzGerald's point but I do not think there is any call seriously to punish or criminalise somebody who makes a genuine mistake. The danger of that is very small. De minimis non curat lex is an old saying and in this particular case it is probably appropriate.
An Leas-Chathaoirleach
Is the amendment withdrawn?
With the permission of the House. I withdraw my amendment.
Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."
This is unusual legislation and I am sure the Minister is aware of and welcomes the fact that we are taking it so carefully through this House because in many respects it is an extraordinary Bill which needs great consideration. My question is on subsection (3) of section 4. I simply do not understand what it means. It says that if the respondent spouse is present at the sitting of the court at which the barring order or protection order is made that spouse shall be taken for the purposes of subsection (1) of this section to have been notified of its making. Why is it necessary to put that in at all? What circumstances does the Minister envisage of the person being present in the court and not knowing that this order has been made? I would be very glad to have that explained.
There are a number of other references to methods of communication, oral communication, written communication, communication by the wife as one individual, by a member of the Garda Síochána. It would be reasonable to expect that somebody who is actually sitting in the court where this order has been made ensuring that that person, the respondent spouse, would not proceed to break the law and could be deemed to have been notified once he had heard the court's decision on the matter. It is another form of communication that is deemed to be adequate notification for the purposes of him knowing subsequently the position and certainly in a situation where he is liable to arrest.
Is it because this discharges anybody from having to actually hand him anything?
No. That still applies. But that does not preclude a person from being arrested. It is required that apart from any oral communication he would also be communicated with by service of a notice of the order or a copy of the order. The fact that he did not receive a copy of the order does not prevent him from arrest. Senator FitzGerald was concerned about the fact that somebody might be liable to arrest without being properly notified. I genuinely accept his concern for the individual in this situation. Section 4(1) takes effect immediately on the respondent spouse being notified. We have spoken about oral communication, and notice or a copy of the order being given in writing. Here we are speaking about the person being in court and hearing the decision of the court in person. That is deemed to be another type of notification that is considered adequate but it does not preclude him from being notified by other people in accordance with what is prescribed here.
It does not preclude him from being notified but he is notified and he does not have to be notified in any other way and he is liable if he breaks the barring order. The barring order, I direct the Minister's attention to section 2, does not necessarily involve him engaging in violence. But subsection (1) provides for an order called the barring order which directs the respondent spouse if residing at a place where the applicant spouse is residing to leave that place and where the respondent spouse is not residing in that place, prohibits that spouse from entering that place until further order.
He may be the mildest of men — cracked, perhaps — but there is no necessity for him to exercise violence. But if he is sitting in court he will be deemed to understand the strange mysteries of the law as we understand each other, and you know how well that is, and suffer all the consequences of that kind of understanding, be in breach of a barring order which is telling him he is not to go home this evening, what he thought was his home, and he will be committing a criminal offence and be liable to arrest if he does. I do not think that simply to say there are other ways of telling him is sufficient.
You could tell him half a dozen times.
But the prosecution is entitled to rely on that mode of notification and on no other mode. The court can find him duly notified if he is found to be sitting in court though he may not have a clue as to what it is all about.
I am not quite as alarmed as Senator FitzGerald. I realise that this is difficult and unusual legislation dealing with very difficult areas. Given the fact that it is dealing with very difficult areas, we have unusual provisions in the Bill. I did not want to start anything by asking that simple question on subsection (3) but I seem to have done something and I will have to continue it now because I am becoming more puzzled. Perhaps the Minister could put my mind at rest here. This kind of provision in subsection (3) about a person's presence being taking as sufficient proof of his knowledge of the taking out of an order against him, is that usual?
I can only say that for the purpose of subsection (1) of this section he is deemed to have been notified of the making of the order, and not being legally qualified I do not think that it would be proper or appropriate for me to hazard guesses about what the provisions are in other legislation. Senator FitzGerald might wish to comment.
With respect, while we are considering this subsection it would be very helpful to us if people like myself who are not lawyers could have some indication if provisions like subsection (3) are found in other legislation. Subsection (1) starts off this part of the Bill and then we go on to talk about, as the Minister pointed out earlier on, different ways of assuming that the respondent spouse is aware of this order being taken against him. I find it unusual that we have to have subsection (3) at all. It seems to me that subsection (3) is saying: if he is there, nobody need go up to him and tell him that this has happened, and that there is an assumption that he has understood it. I have only been in a courtroom a few times in my life and I did not understand a word of what was going on. I do not expect people that are in this sort of traumatic situation to understand it either. They might very well understand even less than I would.
I can inform the Senator that there is no known statutory provision like this to the knowledge of my advisers. In connection with the point she raised, I think that for a respondent to claim that he did not hear what went on in court, would not be a justifiable defence if he was subsequently found to be in breach of the order. Because he is in court, whether he is asleep or awake or in any other condition referred to by Senator FitzGerald earlier, he is held to have been notified of the decision of the court.
I may be totally out of turn in this. Is there any danger therefore of any of section 4, particularly subsection (3) being found to be in breach of a person's constitutional rights? This raises questions. I am sure the Minister understands that I am very anxious indeed that we should have laws to protect people who are the victims of domestic violence, but I am just beginning now to be a bit worried, without knowing a great deal of the implications of this, that if section 4 and various subsections of it were found to be in contravention of people's constitutional rights, we could be making a bad situation worse for the victims of domestic violence.
At this point, having raised that question I, of course, must assume that the Minister, when this Bill was being drafted, was well aware of the implications of it. I am sure the Minister will be able to give me a reassuring answer and to say that everybody is satisfied that this will not be in breach of people's constitutional rights. But it does seem to raise questions.
In the preparation of this section I was satisfied that there is no question of the constitutional rights of the individual being interfered with and I am satisfied about it now. Of course, I cannot see into the future and foretell that some eminent people like Senator FitzGerald and others might not wish to proceed to test its constitutionality in the Supreme Court.
I have never done that yet.
Question put and agreed to.
Section 5 agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
On subsection (1) on Second Stage of this Bill, which was adjourned in dramatic circumstances, I cannot recall very clearly that discussion, but if it was not mentioned it should have been, that domestic violence is not confined unfortunately to a small group of people and neither is it confined to the less well-off or to the better-off in society. It is a sad feature of human nature in every area of society. It is more apparent among the less well-off who perhaps have fewer safety nets; for example, when a woman finds herself having to leave her home perhaps a better off woman has more safety nets and that is why we do not hear quite so much about it. A person who contravenes a barring or protection order shall be liable on summary conviction to a fine not exceeding £200 or imprisonment not exceeding six months or both. Given the value of money today there are a great many people for whom £200 may seem not very much but there are many other people for whom £200 is a very considerable amount. I am wondering about the maximum being £200. How was it arrived at and why?
Consideration was given to the question of increased penalties but it was felt that the existing penalties of up to £200 or imprisonment for six months, with the possibility of both being imposed in appropriate circumstances, was an adequate deterrent having regard to the fact that a breach of the barring order or protection order is a summary offence. Furthermore, in the case of a breach of the barring order there may not have been any violence involved. If there is serious bodily harm or a more serious charge there may be trial on indictment. That would be the correct course if the facts warranted it. What we are speaking about is a penalty of two forms, either separate or combined. In appropriate circumstances they can be used where there is a breach of a barring order. If the breach of a barring order was associated or linked with assault or grievous bodily harm occurring, the ordinary criminal law can be availed of to proceed and the penalty is there, in some instances up to life imprisonment.
I accept that. We are all against imprisonment as a family law penalty because imprisonment has all sorts of ramifications plus the problem of the financial loss to the family. What is to be avoided at all costs is that a man — and we are mostly talking about men — would be put in prison and would lose his job and, therefore, the wife would find herself not only struggling with the terrible problem of domestic violence but also with very little money coming into the household.
If he had to pay a fine in excess of £200 the money might also stop coming in.
There are some people whose money would not stop coming in if they had to pay more than £200. That is the whole point of the discussion. What I am objecting to is the upper limit of £200 which for some people could be a small amount. I feel it is not high enough.
I must take the opportunity to agree with the Senator on the point made earlier that in the case of certain categories of people because of their social background or their financial resources or whatever there are more protections there for them, to use the Senator's words. They can afford to get away from it all. They have facilities other people, regrettably, have not got. For that reason, I presume that the major number of barring orders will not be sought by this section of people. The great majority of barring orders will be sought by people who, for one reason or another, are deprived and underprivileged and for that reason the law must step in to afford them protection. I feel that the £200 in that situation might be adequate. As I said, it is a summary offence. The number of times that people will be actually imprisoned will be few or nil because I appreciate that it can create further difficulties. Even though the maximum is set out I would hope it will not always be used. Indeed, most people who are barred by the court from returning to their homes for any particular period will also recognise and realise that this is the end of the line for them, that if they proceed to break that barring order there are serious consequences, as the fine and penalty state in this section. If they proceed beyond breaking the barring order and engage in acts of violence the consequences are even more serious — £200 or £100, depending on the individual. If a maintenance order was in operation at the time and a severe penalty was imposed it would certainly affect the ability to pay the fine and to make the necessary finances available as required under a maintenance order. The imposition of fines and penalties generally is a matter for the court. The court invariably takes into consideration a number of factors in order to arrive at what it considers is the penalty that should be imposed.
Question put and agreed to.
SECTION 7.
I move amendment No. 2:
In page 4, line 17, after "believing" to insert "including the belief that section 4 or section 5 (1) has been complied with".
I think this amendment improves the section. I should like to hear what the Minister has to say about it.
Under section 7 a garda must have reasonable cause for believing that the respondent spouse is committing or has committed an offence. His belief in this context could by no stretch of the imagination be reasonable if he did not believe that proper notice had been given because, clearly, if it were not given no offence would be committed, since the relevant barring or protection order would not have taken effect under section 4(1).
Section 4 and section 5(1) of the Bill make special provision to ensure that a spouse against whom a barring order or protection order is made is aware of the order at the earliest possible date. This special provision takes two forms: (1) oral communication to that spouse by or on behalf of the applicant spouse of the fact that a barring order or protection order has been made, together with production of a copy of the order will be taken to be sufficient notification under section 4(2); (2) the court will send to both spouses and to the local Garda station copies of the order under section 5.
I may add that it is also proposed that instructions will be issued to the Garda to ensure that they will not make any arrest for breach of an order without first making sure that the offending spouse has been duly notified of the making of the order. The amendment will be opposed as unnecessary on the basis of what I have said.
What harm does the amendment do?
I am satisfied that the provision as proposed in the Bill is satisfactory and adequate.
Amendment, by leave, withdrawn.
Section 7 agreed to.
SECTION 8.
Amendment No. 3 not moved.
Section 8 agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
Perhaps the Minister would clarify the purported intent of this section and the mischief that it is designed to cure because I am not quite clear about it.
This is one of the principal new features in the area of law introduced by the Bill. It provides that in subsection (1) where a person has been charged with a breach of a barring order or protection order, or where——
I take the point.
Question put and agreed to.
Sections 10 to 17, inclusive, agreed to.
NEW SECTION.
I move amendment No. 4:
Before section 18 to insert a new section as follows:—
"18.— The provisions of this Act shall apply only to acts committed after the coming into operation thereof."
I do not think the kind of provisions we are proposing to enact in this Bill ought to affect what happened before enactment. The deeds that now have the consequences they have should simply have the consequences that the people who committed them earn from them. They are not deemed to understand, whatever their situation in life, the pieces of paper passing through the Oireachtas. They are deemed in this strange provision of the law to know the law. This is not the law. Only the consequences that exist in the law at the moment should flow from any acts or omissions now.
Is the Senator withdrawing the amendment?
No. If the Minister says it is otherwise covered I would be happy to withdraw it.
I am opposing the amendment. As a preliminary point, I presume that the acts referred to in this amendment are constituting offences under section 6, although this is not clear. The purpose of the Senator's amendment is to ensure that the offences under section 6, and perhaps the increased penalties under section 8, should not apply in relation to events that occurred before the commencement date. There is no need for such a provision and it is never included in legislation of this kind. It is the general law that legislation creating an offence applies only to things done in the future. In any event, section 6, which creates offences of contravening a barring order or a protection order, and related offences, clearly applies only to things done after the Bill comes into operation. The same applies to section 8 as regards offences committed on bail.
The Senator has referred to Article 15 (5) of the Constitution which provides that the Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission. As I have already indicated there is nothing in the Bill that infringes that constitutional bar. The offences provided for in the Bill are those set out in section 6. These may be committed by a respondent spouse who (a) contravenes a barring order, including contravention of a provision in the order prohibiting the respondent spouse from using or threatening to use violence against, molesting or putting in fear the applicant spouse or any dependent child; (b) contravenes a protection order and (c) while a barring order is in force refuses to permit the applicant spouse or dependent child to enter and remain in the place to which the order relates or does any act for the purpose of preventing that spouse or child from doing so. The offences at (b) and (c) can only arise as the Bill becomes law, as the protection order is only now being introduced and the offences at (c) in relation to barring orders are also new.
As regards (a), since 1976 there have been the offences of breach of a barring order or while a barring order is in force, molesting or putting in fear the applicant spouse or dependent child — under section 22(3) of the Family Law (Maintenance of Spouses and Children) Act, 1976. Pursuant to section 17 (2) when the Bill comes into operation it will apply to barring orders made under the 1976 Act which are in force at that date, as if they were barring orders made under the new legislation. Only acts done after the coming into operation of the Bill can constitute an offence under section 6.
The position is different in relation to the grounds on which a barring order or a protection order can be made by a court. Such an order is intended to protect the safety or welfare of an applicant spouse or a child in the future, but the reasons for granting it will necessarily relate to conduct in the past. Accordingly, after the Bill comes into operation there will clearly be cases where barring orders and protection orders to regulate future conduct will be made on the basis of misconduct of the respondent spouse prior to that date. It is unthinkable that a wife who has been the victim of serious violence from her husband for some time before the coming into operation of the Bill should be required to endure further violence after the commencement date to qualify for the order under the Bill.
On the other hand, contravention of a barring order made under the 1976 Act and committed prior to the commencement date of the Bill would fall to be prosecuted under the 1976 Act and only contraventions of barring orders, either those made under the 1976 Act and rebaptised under section 17(2) of the Bill, or those made under the newly enacted Bill, and protection orders committed after the commencement date would be prosecuted under the new legislation.
The Minister passed by old "tin lizzy" with such speed with his modern machinery that I did not fully follow the argument, but I am open to conviction as to his conclusion. I will just put a question for clarification. We have provision for taking periods of imprisonment consecutively and then extending to 12 months. Does this Bill take into account the sentences already served or required yet to be served before this Bill is taken into account?
That is a new provision.
The Minister referred to the Constitution which, if I understand it, merely requires us not to treat as criminal something which was not a crime at the time. What we are talking about here were crimes at the time. The Constitution, as distinct from the law, would not be breached by extending the punishment for something that was a crime already. The Constitution says that one cannot treat something as a crime in the past if it was not a crime. We are talking about something that was already a crime. I am asking a question about the punishment for the crime. Does the Bill propose to extend punishment for what was already a crime? If it does that — I do not think it ought to do that — I would like the Minister to simplify it. I will be able to read what the Minister says and take it in.
I am sorry if I did not make clear my reason for opposing the amendment. The provision relating to bail does not apply to any offences committed before the commencement of the Bill. It is a new provision and it operates from the commencement of the legislation only.
Likewise in the case of the extension of imprisonment.
That is correct.
Amendment, by leave, withdrawn.
Section 18 agreed to.
Section 19 agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take Report Stage?
I said many things. I do not know whether the Minister would like to read the record of what I said and give consideration to it. Then we could take Report Stage with the benefit of his reflections on what I said.
I am satisfied that on Committee Stage I replied to all the matters the Senator raised. I replied to them briefly because I did not see any justification for being long-winded. The Senator's major contribution was in connection with the amendment he withdrew. He raised a number of matters which were more appropriate to the Criminal Law (Rape) Act with which we have already dealt. I am satisfied that on Committee Stage I answered all of the questions raised. I did not intend to reply further except to matters raised on Report Stage.
I am not satisfied that the Minister is being fair to himself. I raised matters here today of a substantial kind and nobody, including the Minister, can have given sufficient consideration to them. Are we to have a bloody farce and enact what is in this Bill irrespective of what anybody says about it? I suggest that Report Stage should not be taken now. I will remind the Minister of two matters. One is the position of the illegitimate child—
I replied to that and I reject the Senator's allegation.
We have to decide now when to take Report Stage.
I wish to convince the Minister that I am not being unreasonable in asking for Report Stage to be taken later. I wanted to aid him by directing his attention to two points but, if the Chair rules me out of order, I will shut up.
I hope Senator FitzGerald did not intend to suggest that I consider this House, or the contribution of any Senator in this House, as being a farce or that I want to be part of any farcical set-up. I replied in depth to all questions, including the one about illegitimacy.
I am sorry. We have to fix the time for taking Report Stage.
Question put: "That the Fourth Stage be taken now."
The Seanad divided: Tá, 14; Níl, 12.
Tá
- Brugha, Ruairí.
- Cassidy, Eilen.
- Cranitch, Mícheál.
- Donnelly, Michael Patrick.
- Doolan, Jim.
- Dowling, Joseph.
- Hillery, Brian.
- Honan, Tras.
- Jago, R. Valentine.
- Lanigan, Michael.
- Mulcahy, Noel William.
- O'Toole, Martin J.
- Ryan, Eoin.
- Ryan, William.
Níl
- Blennerhasset, John.
- Butler, Pierce.
- FitzGerald, Alexis.
- Harte, John.
- Howard, Michael.
- Hussey, Gemma.
- Keating, Justin.
- Lynch, Gerard.
- McAuliffe, Timothy.
- McDonald, Charles.
- O'Brien, Andy.
- Staunton, Myles.
Tellers: Tá, Senators W. Ryan and Dowling; Níl, Senators Butler and Harte.
Question put and agreed to.
Bill received for final consideration and passed.