Seanad Éireann debate -
Wednesday, 15 Jul 1987

Vol. 116 No. 18

Family Law (Protection of Spouses and Children) (Amendment) Bill, 1987: Second Stage.

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

Minister for Justice (Mr. Collins)

I welcome the opportunity to bring this Bill before the House. Its purpose is to amend the Family Law (Protection of Spouses and Children) Act, 1981 — which I brought to this House at that time; I had better put that marker down now — so as to give the courts more flexibility in dealing with applications for protection in cases of domestic violence. It will mean that a court will, henceforth, have the option of granting a protection order as an alternative to and separately from a barring order. At present, on an application under the 1981 Act, it is only open to the court to grant or refuse a barring order. It may, pending a decision on the application, make a protection order where it considers that the safety or welfare of the applicant spouse or child requires it. However, as the present law stands, the protection order is of an interim nature only and, once the case is decided, it ceases to have effect.

Representations were made, notably by the AIM Group for Family Law Reform, that a barring order, which excluded the offending spouse entirely from the family home, could be too drastic a remedy in some instances and, indeed, could be counter-productive in that it had a potential for estranging spouses permanently from each other and rendering attempts at reconcilation more difficult. It was felt that, rather than having a situation where a spouse who is threatened with violence in the family home is put in the predicament of having to apply for a barring order excluding the other spouse from the family home or being left with no effective remedy, it would be helpful if it were possible to obtain a protection order in its own right, prohibiting the offending spouse from using violent or threatening behaviour towards, or otherwise molesting, the applicant spouse or a child of the family. Such an order would not exclude the offending spouse from the family home, but would serve a warning on him or her and any breach of the order would, as with a barring order, render that spouse liable to arrest without warrant and to a fine or imprisonment, or both.

The whole matter was considered in consultation with the various services directly involved, including the courts' administration, the Probation and Welfare Service of the Department of Justice and, also, solicitors attached to the Legal Aid Board. There was general agreement that amendment of the law on the lines that had been suggested would represent a definite improvement on the present situation, and the Bill now before the House is the outcome. The Bill follows the commitment for in the Fianna Fáil Programme for National Recovery to amendthe law to protect women against domestic violence.

If I might now review briefly the provisions in the Bill, effectively, the Bill takes the first five sections out of the 1981 Act and substitutes for them provisions of a like nature. However, these are phrased so that the court will have the option of making either a barring order, excluding the respondent spouse from the family home, or, alternatively, a protection order prohibiting that spouse from using or threatening to use violence towards, molest or put in fear the applicant spouse or a child of the family. A third possibility that will be open to the court will be to grant both a barring order and a protection order. This would be equivalent to a barring order granted under the 1981 Act at present which includes a prohibition on the use of violence etc., as provided for in section 2(2) of that Act. There is also provision, in section 3(2) of the Bill, under which the court may make a protection order pending a decision on the application; this would correspond to the protection order which can at present be made under section 3 of the 1981 Act.

The remaining sections of the Bill are of a technical nature and do not call for comment at this stage.

This Bill, as I have already mentioned, is in response to a need pointed out by interest groups concerned with family law matters. I trust it will have the support of Senators on all sides of the House.

I commend the Bill to the House.

Mrs. Fennell

I welcome the statement the Minister made on the occasion when he quoted from his concluding remarks in the last Bill. I am certainly very pleased to know he affirms the proposals made by the Joint Committee on Marriage Breakdown on which I think there is broad consensus of agreement. I assure the Minister of the full support of the Fine Gael Party for the proposals he is bringing forward. We all recognise, and perhaps it was brought home very forcibly to us during the debate on the divorce referendum last year, that there is a need to progress, be it carefully if slowly, in all these areas on which we have had no action for a number of years.

I am quite sure the Minister will accept that progress on this kind of legislation, given our Constitution and the difficulties that drafting legislation can run into vis-a-vis the various constitutional provisions, is slow and tedious and it is perhaps prudent to be cautious and to proceed reasonably slowly. The Minister is fortunate to have the recommendations and proposals of the all-party committee in the report before him when he continues the work started by the previous Government. I welcome his statement which I saw in the papers and I am very pleased he has given this commitment.

I welcome this Bill which is intended to enable a court to make a protection order prohibiting a spouse from using or threatening to use violence against, molesting or putting in fear the other spouse or a child, as an alternative to and separately from a barring order, which has the effect of barring a spouse from the family home.

The original legislation which introduced barring orders dates from 1976. That Act was reviewed and replaced in 1981 by the Family Law (Protection of Spouse and Children) Act, 1981, which brought in improvements like increasing the duration of the barring order from three months to one year. It also enabled a spouse seeking a barring order to obtain a protection order, which was in the nature of an injunction prohibiting the respondent from using violence and, thirdly, the Garda were given powers of arrest without warrant for breach of the barring order or protection order, powers which they did not have prior to that.

This proposal to amend the legislation on family violence, as the Minister said in his speech, came directly from the AIM Group for Family Law Reform, and is the result of their findings in dealing with cases of marriage breakdown. Last September they wrote making representations to amend the 1981 Act so that the court would be able to make a protection order as an alternative to a barring order and for the same maximum period of one year, subject to renewal. I was interested at the time they made that submission for amendment that the issue of separate protection orders had been considered in 1976 and 1981 when the Bill was being drafted and amended and no good reason was seen for having this as a separate measure. This illustrates perhaps the importance of consultation with groups.

Of course it is important to consult with legal practitioners but also with other groups such as the AIM Group for Family Law Reform and Women's Aid and the other organisations that are actually working practically on the ground with couples and can pick up and identify difficulties or proposed improvements that are necessary.

However, I certainly accept the arguments that the AIM group put forward to support this measure, in that because a barring order was or is such a drastic measure and in effect results in many cases in permanently barring a husband and father from the home and estranging him from his children, that many wives who needed the protection — even as a deterrent — would not consider taking out a barring order.

On the other hand, there are wives who apply for a barring order because of repeated and severe violence, yet for any number of reasons they fail in their efforts to have their husbands barred when it comes to a court case, and must return home to the house, more vulnerable than before and without hope of legal protection. This group is very large indeed and to illustrate I give figures from one district court area, the Dublin Metropolitan District Court Area, which does not include Dún Laoghaire, for the years 1985 and 1986. During 1985 the number of applications for barring orders in this area was 1,856 and only 516 orders were made. Even if we presume that up to 10 per cent of the applicants decided voluntarily not to pursue the cases — that is a higher than realistic percentage — we have a distressing statistic to consider. In one District Court area alone there are at any time 1,000 families with no legal protection from a perceived threat of violence.

For the year 1986 the number of applicants increased to 1,927 while the number of orders granted showed a reduction to 448. The statistics refer to the same area, the Dublin Metropolitan District Court Area. Again this leaves over 1,000 applicant spouses rejected by the courts. May I say this is consistent with the information I get from the various Women's Aid homes around the country and hostels to which women go to when violence erupts in the home, and in many instances it is where they stay until the court hears their case.

In this context when we examine the statistics for 1983, we find vastly differing figures. Of 1,697 applications to the District Court, roughly half or 848 were granted, which is double the number for two years which I mentioned. Why has the figure changed so dramatically? I believe it is because of the Supreme Court case of O'B. v. O'B., 1984, in which judicial interpretation had moved towards refusal of a barring order unless physical violence was occurring. I am aware that the view of the Oireachtas Joint Committee, who considered this very widely, was that barring orders should continue to be obtainable where the health, safety and welfare of a spouse or children were at risk. I quote from pages 68 and 69 of the Joint Committee on Marriage Breakdown report.

The Committee observed that prior to the O'B judgment. Barring Orders had been granted in some cases as a form of enforced separation and in situations where the marriage had broken down. Following the O'B decision, the Committee notes that judicial interpretation has moved towards refusing the making of an Order unless physical violence is occurring. The Committee is of the opinion that this rigid interpretation of the Act may have the effect of denying some persons a remedy under the Act where it can be strongly argued that the conduct of the offending spouse, though not physically violent, is such as to place the safety and welfare of the other spouse and/or children at serious risk.

The Committee is concerned that this uncertainty which is a consequence of judicial inconsistency should be replaced by a clear re-statement of the law relating to Barring Orders, if necessary by amending legislation.

I question whether the Minister has examined this proposal and the focus of attention it was given in the report. Certainly the figures I quoted indicate that is a very definite change of practice.

One ought to elaborate on the kind of family cases we are talking about. I have had experience of these families over many years through my work in the women's advice centre in the AIM group and dealing, as many other politicians do, with a high number of cases in my constituency advice centres.

This problem of family violence knows no social groupings or geographical locations. The only difference is that wives deal with it in their own individual ways. Some women accept violence from their husbands and never seek assistance. I have known cases where wives kept this problem indefinitely from even their very close family. They do so because they feel there is no relief outside marriage, unfortunately, and in many instances this is the case. Mistakenly, many women will not divulge this problem because they feel it will break up the family and their children will suffer. The reality is that the children, in many instances, in later years will tell social workers that they would have preferred if the wife and husband had separated because of the intolerable violence and aggression in the home.

There was a greater incidence of women not divulging this problem and not doing anything about it before 1975 than there has been since then. With the introduction of the 1975 legislation greater numbers of women began to seek help. Most wives will not easily seek a barring order. They do not want to have their husbands barred from the home. It is only when the provocation is serious and creating a grave family problem that wives seek the shelter that a barring order gives them. Very many tell you they are doing so now for the children's sake. However, once the application is made, many women live in fear of retribution from their spouses in the interim between the serving of the order and the hearing of the case even though, since 1981, they would have had the protection of protection orders. It is regrettable that many women have no legal representation in court because of the high cost. One can envisage the home situation when these wives fail to get a barring order in court. They feel their husbands now have greater power over them than before because the protection order would have lapsed under our present system. After the court hearing they are left to endure whatever treatment is meted out to them unless in a subsequent attack they are so badly injured that the gardaí have to intervene and then a barring order is forthcoming. It is sad that this is often the case.

We still see only the tip of the iceberg regarding family violence, and legal, judicial and social support provisions to deal with it are patently inadequate. For instance, there are a number of towns where there are no shelters for the victims of violence. We have come a long way, one might think, with hostels for battered wives in Limerick, Cork, Galway, Bray and a couple in Dublin. As far as I know there is none in the midlands. I had contact this week with a social worker in one of the hostels about a recent case which was heard in Tullamore District Court.

In June 1986 a husband brought home three men from the pub and he invited his three friends to have intercourse with his wife. As the husband watched, the men took up the invitation. Neighbours heard the screaming and shouting of this woman and eventually rescued her and called the Garda. The husband and companions were arrested and charges were pressed by the Garda. Within two days that wife was pleading to have the case quashed. However, because of the grievous nature of what they had witnessed the gardaí went ahead with the case in the district court. The outcome was that the case against the husband was struck out. The three defendants, who were charged with aiding and abetting, breach of the peace, common assault and indecent assault, were fined £500 each. The judge in this case claimed that he would have jailed the three men for a year but for the fact that the husband had been involved in inviting them into the house.

This is a very distressing case and many questions could and should be asked about it. This was effectively a gang rape. Irish women are all victims when such an outrageous act occurs and the penalties handed down by our courts fail to reflect the seriousness of the offence. As we have been discussing the quality of family life and the recognition within all our communities of the fact that women are at risk and are still regarded as the husband's property in marriage, we have to be concerned that there is no provision in many towns and many areas for women who want to escape from intolerable marriages and marriages where there is violence.

Once again we must focus on the question of the training of judges and district justices. Men and women dealing with family law cases should receive special training on the social, psychological and other non legal aspects of family relationships. We have no formalised provision for such training here such as exists in Australia where the Family Law Act, 1975 provides that for appointment to a family court a person must be a suitable person to deal with matters of family law by reason of training, experience and personality.

I accept that among the Judiciary here there are men and women who would qualify under this requirement as being suitable by reason of training, experience, and personality, but they are in a minority. Because the public see such wide disparities of sentencing, there is understandable concern at the lack of training to improve the administration of family law in the courts.

It will be interesting and highly relevant, to monitor the effects of the Bill before us in the courts. I have no doubt whatever that it will be welcomed by social workers, counsellors, lawyers and the Judiciary, but I hope its provision will not lead to a more unsatisfactory situation than at present exists for cases of chronic domestic violence where a court will decide more often than not that a protection order is the better of two evils and will leave some wives, who genuinely need and are seeking to have a violent man barred, without this vital protective measure. However, we will wait and see the results. I ask the Minister to let me know on what date the Bill will come into force after passing through both Houses.

I turn now to a different but related aspect of this question, the fact that family cases are heard in camera. I am uncertain about the provision in section 14 of the Principal Act that “Proceedings under this Act shall be heard otherwise than in public”. There is general unease, which I share, about the fact that thousands of family law cases are dealt with every year in our courts behind closed doors, with no reporting of the facts or the conclusions. In 1975 when the legislation was first introduced I supported the notion of the in camera ruling. Now, ten years on, lessons have been learned to indicate a rethink on this matter. First, public opinion has become more sensitive to the issue. Ten years ago most women felt ashamed and guilty if their husbands beat them and they needed total anonymity in court. We now know from several surveys, latterly from the recent EC study of violence in the family in Ireland, that there is absolutely no support for the idea that a husband has a right to use violence against the wife. The EC studies show that nine out of ten people interviewed for the survey said there were no circumstances in which this could be justified.

One important consequence of the present in camera hearing is to create the impression that we do not have marital problems in Ireland. If the public do not bear and read about the thousands of cases of court hearings for maintenance, guardianship and barring orders, it could be perceived that there is only a small problem with our marriages. This is very far from the truth. Ireland has a marriage breakdown crisis and the electorate out there had better accept that fact. Look at how public opinion has changed on the issue of rape, for instance, and the consensus now that stronger legislation is needed to deal with it. This, I feel, is directly due to the reporting and debating of cases. We have to question the practice of withholding the facts and information on marital breakdown cases from the public. While I have not had any really clear submission on the matter from organisations dealing with the law, or women's organisations, I believe it is timely to consider amending section 14 of the 1981 Act to allow if possible a limited system of reporting of family cases but preserving the anonymity, the names of the persons involved. This proposal was made by the AIM group in 1984 but it has not been followed up by them.

I welcome this legislation. It is very desirable and very necessary. It will give legal shelter to a great number of families who at present are unprepared to seek a barring order because they know that in effect it can lead to a form of Irish divorce and can be totally contentious. I have been told by women that they would welcome a protection order which would give the Garda authority to arrest the husband if he is in breach of the order. This would be a deterrent and would be a great deal more positive than the barring order which I can accept is not always necessary.

I would like to pay tribute to the many people involved in organisations such as the AIM group, Women's Aid, Gingerbread, FLAC, Marriage Counselling Service and the CMAC, who give their time voluntarily to inform, support and help people involved in marriage disputes. I include in my tribute also those who give refuge to the victims of domestic violence.

In conclusion, I hope this new measure will be enforced. There is a feeling of frustration among the organisations who are dealing with this problem every day in the courts. They realise it is extremely difficult to get the Garda to enforce these orders. This is something that should be considered because there is going to be an increase in the number of cases coming before these organisations and it will not be good enough if this Bill adds to their workload. I ask that the enforcing of this measure be carefully watched, I welcome the Bill and support it.

Mr. McEllistrim

As we have been told, this is a Bill to amend the Family Law (Protection of Spouses and Children) Act, 1981. It will enable the courts to be more flexible in dealing with domestic violence by enabling them to grant protection orders independently of barring orders. I welcome this Bill.

First, I would like to deal with barring orders. A barring order is a very extreme measure because when it is introduced it leaves one of the partners very bitter and disappointed in being barred from his or her house. It can also remove the prospect of reconciliation between the spouses. There is no suitable remedy available to the courts to protect a spouse when the making of a barring order would be too drastic a step to take. I have met people who were barred from their homes and the effect it has on them is unbelievable. They are usually very sorry for the actions which caused the barring order.

This is a very important amendment which allows for a protection order to be made prohibiting a spouse from using or threatening to use violence against a spouse or a child. It does not mean that the person will be barred from the house but if he or she uses violence or threatens the spouse or the children when a protection order is in force, he or she would be in breach of the order and that would render him or her liable to arrest and to be charged with the offence. I also notice there is provision in the Bill for a court to introduce both a barring order and a protection order. This is a very good idea and will be welcomed by families and spouses.

In the Programme for National Recovery published earlier this year, my party committed themselves to amending the law so as to give further protection to women caught up in material violence. The introduction of this Bill honours that commitment and represents a very worthwhile improvement in the family law code of the country. I congratulate the Minister for introducing the Bill which is very necessary and also in having two family law Bills before this House today. I support this very worthwhile Bill. Its introduction is timely.

Mrs. Robinson

Unlike the Family Law Bill introduced earlier this morning, this is a genuinely important Bill. I very much welcome its introduction by the Minister to the Seanad. By and large I welcome the proposals contained in the Bill. I am going to make a number of suggestions for possible change in the wording of part of the Bill. I hope also to raise a number of issues which are not dealt with in this Bill and which I would like to see included. I propose to submit amendments for consideration on Committee Stage. I will deal first with what is in the Bill.

I welcome the separation of applications for protection orders and for barring orders, giving protection orders a separate and long term existence. I agree with those who have advised the Minister. He has mentioned groups such as AIM and lawyers in the family law centres. Senator Fennell has also welcomed this development. It has been the experience that it was insufficient to have the possibility of applying for a protection order as sub-stage in an application for a barring order. In many instances a protection order provides adequate relief and is the appropriate order. It certainly is better that the courts dealing with this very important area would have the maximum flexibility. The Bill is very welcome in seeking to ensure that there is that flexibility.

The Minister has carried over from the Principal Act, the 1981 Act, the grounds on which either a protection order or a barring order could be applied for. This is referred to in section 3 (1) (a) of the Bill before the House which states it is "an order (in this Act called a ‘protection order') prohibiting the other spouse (in this Act called ‘the respondent spouse') from using or threatening to use violence against, molesting or putting in fear the applicant spouse or the child". The grounds relate to the protection of the safety or welfare of the spouse. In the extract of the report of the Joint Committee on Marriage Breakdown, to which Senator Fennell has already referred, a concern was expressed.

I recall, as a member of that committee, that the way in which the 1981 Act has been interpreted, particularly in a decision of the Supreme Court, was fully discussed by the committee. In effect, the Supreme Court has construed the grounds for seeking a barring order — and that would also apply to a protection order — as requiring misconduct, physical violence or a threat of violence. The Bill intends to protect the welfare and safety of spouse and children. The joint committee recommended — looking again at the 1981 Act and perhaps seeking to redefine more clearly — that there are circumstances where there may not be either actual misconduct or risk of physical violence which places the spouse or children at risk and which would require either a protection order or, in more serious circumstances, a barring order.

At this stage I would ask the Minister to consider the recommendation of the joint committee to which Senator Fennell referred. That recommendation was arrived at by the joint committee after very considerable discussion and after considering submissions made by other bodies who were concerned about the difficulty subsequent to that Supreme Court case — I do not want to say too much about it because I was involved professionally in that case and indeed won on appeal to the Supreme Court, but the implications of it are somewhat worrying. It narrowed the understood grounds on which a barring order could be obtained. This Bill gives us an opportunity to have a very careful look at the statutory grounds on which the relief of either a barring order or a protection order is available.

There was another recommendation of the joint committee to which I would like to draw the Minister's attention, namely, paragraph 7.7.15, page 70, of the report of the committee. It referred to the absence of any concern about the barred spouse, that is, the spouse who has actually been barred from the home on foot of relief obtained by the other spouse. The joint committee said:

A most unsatisfactory aspect of the present structure in relation to the making of Barring Orders is that, in practically all cases, no help is available to a person whose conduct has led to him or her being barred.

That person is simply removed from the family home for a period of months or years during which time they are given no professional help to form an insight as to why their conduct was unacceptable, or to ensure that similar conduct will not recur. This is yet another example of the complete lack of any adequate welfare or counselling service being available to those whose family difficulties are dealt with through the courts.

Then the committee made broad recommendations for a reformed family court structure, including a much more developed family and welfare system. That is something we should consider in the context of this Bill.

They are my main comments on the reforms the Bill proposes to introduce and which I warmly welcome. I want to turn now to the rather significant limitations of the Bill, which are particularly important in the area of child sexual abuse. They may not be entirely confined to the area of child sexual abuse, but I can make my own submissions more clearly by looking at the area of child sexual abuse. It is an area which has become increasingly serious in Ireland as in other countries. The number of cases coming before the courts, and the number of very serious problems have increased mainly, I think, because at last we have begun to provide ways of coping with this serious problem. We had a hidden problem but now that we have begun to have expertise, training and a place for people to go when children have been sexually abused, we are beginning to see problems coming through the courts, and I think we are going to see more of them. I know from my colleagues who specialise in family law that we are seeing more of it at the moment. There are very few family lawyers at the moment who do not have several child sexual abuse cases in their present file of cases.

Until recently the approach to child protection legislation assumed that the most appropriate way to protect the child who was suffering from serious sexual abuses in the family was to remove the child from the home. This was by way of a place of safety order or similar move to actually get the child out of the family. It was appreciated that the removal of a child may cause serious problems. It may cause a feeling of guilt in the child that the child is breaking up the family, and it may also cause the child to feel that he or she is being punished for having told somebody about the occurrence of sexual abuse. Where the abuser is the father of the child, the removal of the child presents an opportunity for the father to influence his wife and to get her support against the child if any action is taken, for example, by a health board. There is a very serious problem at times in relation to that. Also, if one child is removed it may be that other children in the same household would be at risk. Perhaps most significant of all in this very vulnerable situation, the continuity of the child's relationship with other members of the family, with mother and siblings, can be seriously endangered and the child can be intensely unhappy having been brought into care or placed in fosterage. In that context the protection order could be an important way of providing for the circumstances under which a child can remain in a family home but where there is protection, and if necessary, it can lead to a barring order barring a spouse from the home.

Having described the situation that way, it is clear from the analysis that there are serious limitations, and it is on those limitations I want to focus. The first limitation, and it is one that is continued in this Bill, is that the remedy of either a protection order or a barring order is only available against a spouse. I hope the Minister, when replying to the Second Stage debate, will explain why this remedy should only be available against a spouse. There is nothing in the Principal Act or in the long title of this Bill, which is the same in effect, which requires that the remedy of a protection order or a barring order would be confined to being available against a spouse. The Bill says it is a Family Law (Protection of Spouses and Children) (Amendment) Bill. It is to protect spouses and children but it does not say protection of spouses from action by spouses. It is not that narrowly confined.

In the area of child sexual abuse it is extremely important that we do not confine the relief and remedy purely to being an action which can be brought against spouses because the experience of practitioners, and I think of social workers and health board workers who are dealing with child sexual abuse is that relatively frequently it is not the father spouse who is the abuser. It may be a brother, a stepfather, uncle, or a grandfather. Usually it can be any male in the household. Therefore, it is very important that we afford protection to children against any person in that household who has been sexually abusing a child. I propose to table an amendment on Committee Stage to extend the remedy to any person who is living in the household. I say that because if one starts to define members of a family it can become quite complex. It could be a lodger in the household.

The important thing is that within a family context the remedy of either a protection or barring order is available with all the accompanying support and relief, the Garda are immediately alerted, and if the protection order is not adequate you can move for a barring order. It is a simplified procedure. Lawyers are familiar with it. It works in as effective a way as any other relief whereas the alternative at the moment is if the husband is not involved you have to apply for a High Court injunction, a very complex and difficult relief to obtain. That is the first area where I would like to see the protection in this Bill extended to allow spouses and children to be protected by way of either protection or barring order from someone other than the spouse, particularly where the welfare of children is at issue.

A more sensitive area but also one we must consider on Committee Stage is whether it is adequate as the Principal Act provided and as this amending Bill provides that only the spouse can apply for a barring or protection order either for — again I am taking the normal pattern — her own protection or the protection of the children. That in the area of child sexual abuse provides for very serious limitations on the effectiveness of the remedy because it is the experience of those who deal with child sexual abuse that it can sometimes be extremely difficult, for a variety of reasons, to get a wife to take proceedings for a protection or barring order against her husband. She may not accept that there has been child sexual abuse by her husband or if she does accept it she may be afraid to bring proceedings. There are very serious reasons for a wife not being prepared — even where there is clear evidence that the child has been abused — to institute proceedings and look for either a protection or a barring order. At the moment if she does not this relief cannot be obtained as nobody else can do it.

I am thinking of the welfare of children. It seems that where there is very serious sexual abuse of a child or indeed, in some instances, severe physical abuse of a child, and where a wife is reluctant to take any step, in serious circumstances a health authority ought to be able to make application to the court for a protection or a barring order. I am aware that this is a very sensitive area. We have all read recently of certain controversy in England over the action of health boards in this very sensitive and difficult area of child sexual abuse. Nonetheless, it is important that we look at the possible circumstances where, particularly to protect children, this form of relief would be available for the protection of the child even if it was not possible to get the mother to be the moving party — the spouse — as is defined at the moment. I propose to put down an amendment to that effect on Committee Stage.

There is another problem about the scope of this Bill and I am not sure if it is possible to correct this problem because of the long title of the Principal Act and the title of the Bill. It is the Family Law (Protection of Spouses and Children) (Amendment) Bill and "children" is quite widely defined which is appropriate but we have the word "spouses". Increasingly, couples are living together without being spouses. That is a fact. Even with the absence of divorce legislation in Ireland an increasing number of couples are in long term, stable relationships but they are not spouses and they have children. Those people living together in those circumstances do not have the availability of the remedies which we rightly consider to be necessary for the protection of the married spouse and the protection of children living in the context of a married family even if they are not the immediate children of the spouse if they are living in a situation where one or other spouse is in loco parentis.

We need to look at the reality of the family in Ireland which was to some extent examined by the Oireachtas Joint Committee on Marriage Breakdown. That committee noted that the marriage rate had declined quite significantly from about 1974 to 1983. It has gone down to about 5.2 per 1,000 and has now more or less evened off at that lower figure. The marriage age is now steady rather than declining further but births outside marriage have now risen to in excess of 9.6 per cent. That is a very sharp increase and it would be wrong to conclude that these births are all to unmarried mothers living alone with their child. A significant number of births outside marriage are to couples cohabiting in stable relationships. The female cohabiter and the children in that context are equally in need of the kind of protection which is being set out here. If there is physical abuse, if there is putting in fear or if there is child sexual abuse, in that context the woman and child should have access to the same degree of protection.

We are about to see the removal of one significant area of discrimination of the child outside marriage by virtue of the provisions of the Status of Children Bill which commenced its life in the Seanad and is now nearing the completion of its parliamentary process. At the same time while that will abolish the status of illegitimacy, the child outside marriage still suffers from the handicaps of not having available the protection we are talking about in this Bill. The child outside a married family context would not be able to have a protection or barring order sought on his or her behalf in similar circumstances. It is important that this be examined because there is an increasing number of family relationships in that context and because the need for protection is real whatever about the emphasis we might like to place on supporting marriage. The reality is that an increasing number of couples are living outside marriage in stable relationships and that young persons who are not marrying are living in stable relationships and probably do not intend to marry but are having children. What protection is offered them? The only possibility would be either looking for an injunction in the courts, which is a much less satisfactory form of protection, or that the health boards would have the power to bring a place of safety order or whatever. It is important to examine at this stage the possibility of extending the scope of the relief of barring and protection orders outside the marriage context. It may not be possible to so amend this legislation because of the way it is structured but it is something on which I would welcome a response from the Minister.

I hope we will have an opportunity to discuss fully on Committee Stage, on which I propose to table amendments, the definition of the grounds on which a protection or barring order can be obtained. There is also the question of the extension of the scope of the relief so that it can be obtained against somebody who is not a spouse but who is living in the household and who, by abuse or violence, is putting in fear a spouse or child.

The third area is that of the possibility of having an application for relief brought in extreme circumstances — and it would have to be in extreme circumstances — by a health board or other appropriate authority where a spouse in the particular circumstances is reluctant to or will not seek the necessary relief to protect the children of the marriage.

There is one other area to which I should like to refer again as being a difficult area — and none of these is an easy area. I can see some of the potential constitutional implications. But it is important that we have full and careful discussion of them. Under the provisions of this Bill, as indeed is the case under the existing law on protection orders, it is possible to apply ex parte for a protection order. There is some support for the view that, in every serious circumstances it ought to be possible to apply ex parte for a barring order. Obviously the circumstances would have to be extremely serious and the relief would have to be for a short time before a court could consider the matter.

If the protection order simply would not achieve the short term relief for example — again to use the illustration I have been using — a very serious sexual abuse of a child, it might be necessary in certain circumstances to get a barring order. It might be necessary either for a spouse to get a barring order, as provided under the framework of the Act, or, if we extend the Bill in the manner that I have been suggesting, it might be necessary that a health board or other authority would be able to get a barring order ex parte for a limited time. Probably it would be a matter of days before the matter would be returnable before the court and before there would be a full hearing. This is something which we should consider very carefully. If we are giving the courts more flexibility, broader and more sensitive jurisdiction in this area, we should consider the possibility of enabling an application to be made for a barring order ex parte for a limited time as well as for a protection order ex parte.

Those are the main points I wished to raise. I look forward to the Minister's response and also to a full Committee Stage when we can tease out the various sections and amendments.

Mr. Hogan

I welcome the provisions of this Bill rendered necessary in order to draw a distinction — from the 1981 Act — between a barring order and a protection order. The point at issue is the ascertainment of the most effective way of dealing with family violence. Under the provisions of the 1981 Act which followed the Family Law (Maintenance of Spouses and Children) Act, 1976, a barring order was considered to be the most effective means of alleviating a violent family situation.

I am often struck by the lack of legal education in our community. It is a source of great concern that a tremendous number of people have very little knowledge of what the terms barring order, protection order and maintenance order mean. The Minister has a role to play in the civic code of our educational system to ensure more familiarity with or knowledge of the legal system through the educational process. Indeed our adult educational system has a role to play in informing the public of their rights, of the provisions of the Family (Maintenance of Spouses and Children) Act, 1976, the Family Law (Protection of Spouses and Children) Act, 1981, and the amendment of the latter we are debating today, how their provisions appertain to people finding themselves in violent situations and how these problems can be resolved or overcome. As the House will be aware, a barring order has the effect of excluding one spouse from the family home on the insistence of another. Often in a violent family situation the provisions of the 1976 Act afforded the Garda Síochána no powers by way of removing an offending party from the home. The 1981 Act, for the first time, afforded specific powers to the Garda Síochána to arrest a person they believed was guilty of a breach of a barring order. That was of great practical significance because, up to then, even if a person breached a barring order, the Garda were powerless to take any action in the matter.

The provisions of the 1981 Act, which we are amending here today, also created a new form of order called a protection order. The protection order covers the period from the lodgment of an application for a barring order to the date of hearing of that application. It has the effect of restraining the alleged offending spouse from threatening, molesting or otherwise putting in fear the applicant and/or dependent children. But it does not bar a spouse from the family home. It is probably significant and important that the amelioration of a barring order, in the form of a protection order, could generate a means of reconciliation and bring about a change of heart on behalf of the spouses involved. It constitutes a kind of halfway house, if you like, attitude toward firmer action in the form of a barring order. The breach of a barring order or protection order is a criminal offence which can carry the penalty of imprisonment.

A recent decision of the High Court in the case of R. v. R. gave power to that court to make barring orders even though the provisions of the original legislation, did not so indicate. I am concerned at the workload of the High Court that, whether it be family legislation, criminal legislation or whatever, the High Court appears to be taking on a very significant workload. The Minister should be concerned about the fact that even family cases are increasingly finding their way to the High Court. I referred earlier to the R. v. R. case in 1984 which found its way to the High Court.

Would the Minister consider the establishment of separate courts to deal with the large amount of family legislation now on the Statute Book, and, as he said himself, the number of Bills he has in the offing to provide for greater amelioration of family problems.

One of the recommendations of the Joint Committee on Marriage Breakdown was that family courts are essential to provide the type of professional expertise needed in a sensitive area such as that of family law. There are social workers, psychiatrists and psychologists employed to draw the attention of the presiding judge to the various aspects and consequences of any decision taken in that sensitive area of family law. I urge the Minister to consider at the earliest possible opportunity the establishment of a family tribunal, as was recommended by the joint committee, or some form of family court. In Dublin only does that system operate at present, whereas people in other areas are experiencing difficulty and prolonged delays in having decisions taken on their situations in relation to family law.

I am aware that in rural Ireland — and I am sure the Minister is as well — there are many people living a lie. Their fear of exposing family situations to the public gaze often militates against their applying for barring orders or protection orders. It is a traditional attitude in Ireland, particularly rural Ireland, that people would much prefer to sustain the violence that is taking place behind closed doors rather than seek the refuge of the law of the land. This is generated out of shame and on many occasions lack of knowledge on the part of the spouse or people involved that facilities are at their disposal to bring about an acceptable solution to their family situation.

Senator Robinson referred to two important aspects where the scope of this Bill needs clarification and perhaps amendment. The first is the case of children who are illegitimate and born outside of marriage. I regret that the concept of illegitimacy is still with us and that children born outside of wedlock are not treated equally with those who are born within wedlock. I hope the Minister will bring the necessary legislation to finality in order to abolish this appalling concept of illegitimacy and seek to bring under the auspices of this legislation we are speaking about today the necessary changes to include those people outside of marriage. Secondly there are the various difficulties that legislation has at the moment in coping with the relationships in second unions that are developing, albeit stable unions, which are not addressed in the marital law at present.

I would certainly welcome the Bill and hope that the protection order mechanism will become more the order of the day, to promote more reconciliation in marriages. Unfortunately, we have to face the fact of life that marital breakdown is becoming an increasingly difficult problem to resolve and the protection order is another way in which a very serious problem can be ameliorated without going the whole way towards excluding the person from the home.

Mr. Manning

I want to make two very brief observations on this Bill, which I welcome. In circumstances where the law surrounding barring orders is so unclear and where access has now become so difficult, from the point of view of the affected spouse and the point of view of the lawyer involved in cases of this sort, the Bill will provide a certain measure of protection. It ensures, if properly implemented — and this is the key to it — that there is easier access for the spouse. It ensures that the gardaí are involved from an early stage and that they are aware that there is an obligation on them to keep themselves informed and to be ready to intervene should that be necessary. Finally, it provides easy access and availability of evidence, should recourse be needed to a full barring order.

In that sense the Bill is a necessary step on the way towards much more full reform of family laws. I stress that it may very well need a change in the attitude of many of the gardaí if it is to become effective because all too frequently, and perhaps for understandable reasons, but sometimes not justifiable reasons, the gardaí do not want to become involved in what they see as a family row and prefer not to be aware of the full circumstances. Now, at least, there will be an obligation on the gardaí to keep themselves informed and the evidence which may often be difficult to get will be available.

The other point I want to make is that within the terms of this Bill, and maybe slightly outside it, the Minister could, in the most concrete way possible, give the strongest earnest of his intentions on law reform by immediately changing the court in which most of these cases are held. The situation in the Four Courts at present for family law is nothing short of scandalous — the conditions, the absence of consultation rooms where people can talk with some degree of privacy, the fact that, on Mondays especially, much of the consultation is taking place in crowded corridors where one side can overhear the other. The sheer lack of any dignity associated with the present operation of the law is something which causes a great deal of concern to those who on a daily basis work in the family law courts.

On the same level, the Minister should look very seriously at the question of perhaps establishing a separate division of judges for these courts. All too often, the judges who adjudicate have no special training and often have very little sympathy for the cases with which they have to deal. It is not the glamorous part of the Judiciary. As in other countries, the Minister should consider seriously the possibility of having a separate division with separate training and very careful vetting of the type of personalities needed to ensure that cases are heard fully and sympathetically and that, at the end of the day, in what is always a difficult situation, where there is usually no black and white and where justice will be only approximate, at least it approximates as closely as possible to the ideal. With these two very brief points, I will reserve other points I have for Committee Stage of the Bill. I will simply say I welcome this Bill.

Minister for Justice (Mr. Collins)

Ba mhaith liomsa mo bhuíochas a ghabháil dos na Seanadóirí a bhí páirteach sa díospóireacht seo. I am grateful for the very valuable contributions made. I hoped today that perhaps a much greater number of Senators might have participated in this debate because often I find comments are made outside the House by Members who did not participate in the debate that there is a need for it. Now that we have such important legislation before us for discussion it is regrettable that those who make those types of comments outside, criticising all of us whether we are in Government or Opposition for lack of progress in this area, are not here. I say that because I feel I should. I am extremely thankful to the Members of this House who have spoken and who have made very valuable contributions to the debate this morning.

I will say at the very outset that I am quite open to accept amendments — I say this in response to Senator Fennell and Senator Robinson and I will deal with all the points made as best I can. I am open to be convinced that these amendments, if they can improve the Bill, should be accepted. I say in particular to Senator Fennell that when she had the authority and obligation to bring the Status of Children Bill to the Seanad she was in a similar frame of mind and I compliment her for it. I think we have a far better Bill for it. If we can improve this Bill in this House, I am quite prepared to do so. The only thing I would like to say to Senator Robinson is that if she can prepare the amendments inside the next week or ten days, two or three weeks from today we can deal with Committee Stage and try to have the matter processed before the Seanad goes on vacation.

Senator Fennell and Senator Robinson asked if it was necessary that there be physical violence before an order can be made. They referred to the report of the Oireachtas Joint Committee on Marriage Breakdown and expressed the view, in paragraph 7.7.10, that in the light of the Supreme Court decision in the case of O'B. v. O'B, 1984, the judicial interpretation had moved towards refusal to grant a barring order unless physical violence was shown to have been involved. They felt this might result in a remedy being denied where the conduct of the offending spouse, while not involving physical violence, was such as to place the safety or the welfare of the applicant spouse or children at risk.

They suggested that barring orders, and now also protection orders, should continue to be obtainable where the health, safety and welfare of a spouse or children were at risk. In fact, it is clear from the Supreme Court decision concerned that the term "welfare" in the section includes health and that physical violence is not a precondition for the granting of a barring order or a protection order. It has, moreover, been confirmed that in practice the courts grant barring and protection orders in cases where physical violence is not involved.

Senator Fennell suggested that the guarantee of privacy that applies at present in regard to the hearing of a wide range of family law matters should be modified to allow limited reporting in applications under this Bill. This is a matter which raises wide implications for the approach to family law hearings generally. It would require further consideration and I am prepared to give that suggestion of Senator Fennell's every consideration.

Senator Robinson asked why the 1981 Act and this Bill apply only as between spouses and their children in the usually family situations. They do not apply where there is only a single parent including a widow or widower ill-treating a child or a cohabiting couple not married to each other. This is because the barring order remedy is designated to empower a court to order one spouse to leave the family home notwithstanding the marital duty of cohabitation where the court considers that necessary because of the threat the respondent spouse represents to the safety or welfare of the other spouse's child. The cruelty or ill-treatment of children by parents or others can, of course, be dealt with under childcare legislation or criminal law — the children's Acts and the Offences Against the Person Act, 1861, as may be appropriate. I understand we will be hearing much more about this in the reasonably near future from my colleague in Government who has direct responsibility in this area.

I accept the challenge Senator Manning has given to show the seriousness of my intent in this area by doing something with regard to courts and court facilities. It is important that reasonable courtroom facilities are available for people who are unfortunate enough to be involved in family law litigation. The responsibility for providing these facilities in the greater Dublin area rests directly with the State. At District Court level there are two special courtrooms with waiting and consultation rooms. These are in Ormond House and Dolphin House but in a short time both will be in Dolphin House. The Circuit Court family law courtroom, together with the waiting and consultation room which at present is located in Dolphin House, will shortly be transferred to purpose-built facilities in the new office block which is about to be occupied in the Four Courts complex. This is the location also for similar purpose-built facilities for the High Court which will be used in substitution for its present courtroom in Ormond House.

Mrs. Robinson

Dolphin House and Ormond House are not used very often for family court sittings.

Mr. Collins

I am satisfied that these facilities are fully adequate for the demands likely to be made on them for family law business in the Dublin area in the foreseeable future. The responsibility for providing courtroom facilities outside Dublin rests with local authorities. I understand that in most centres the volume of business is relatively small and the practice is for justices and court staff to use existing facilities but in such a way as to ensure as much privacy and confidentiality as possible. In many cases ordinary courtrooms are used outside the times for ordinary court business and in others the justice uses his private chambers or specially provided rooms. If a need for additional facilities in any particular centre were clearly shown I would certainly take appropriate steps to see to their provision. I consider the matter extremely important. Senator Manning referred to the Garda involvement in the operation of this type of legislation. The Senator can rest assured we can count on 100 per cent co-operation of the Garda in this matter.

I am very thankful to the Members of the House who participated in this important debate. I look forward with interest to amendments which I have been advised will be tabled. I hope they will be tabled as soon as possible so that they can be given the consideration they deserve in order that the legislation will be finalised before the Seanad takes its summer break.

Question put and agreed to.

An Cathaoirleach

When is it proposed to take Committee Stage?

Mr. Lanigan

It is proposed to take Committee Stage two weeks from today.

Committee Stage ordered for Wednesday, 29 July 1987.

Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.