Amendments Nos. 1 and 10 are related and may be discussed together.
Family Law (Protection of Spouses and Children) (Amendment) Bill, 1987: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 2, between lines 16 and 17, to insert the following:—
"`authorised body' means a health board or other body designated by the Minister as being a body authorised for the purpose of making an application within the meaning of section 4* of this Act;”.
Just to keep the record perfectly clear, Senator Robinson and I have a standing arrangement that we each agree to the other moving amendments in the absence of one of us to the extent that both of us feel that is possible. Having read the amendments Senator Robinson has proposed I feel that they ought to be discussed. They raise issues that have implications for how this Bill will work in practice. Amendment Nos. 1 and 10 — and amendment No. 10 is the important one — are designed to take consideration of a situation where circumstances arise where the safety or welfare of a child may be threatened and the parent of the child is unwilling or unable — for reasons that one could imagine to do with either threats of violence or the possible excessive optimism about the future of the relationship — to take the necessary action to protect the welfare of the child. This amendment is designed and intended to enable a body authorised by the Minister to act in the place of the parent where the parent is unwilling or unable to do so. It is a reasonable precaution.
There is a fair amount of evidence in my experience from talking to people working in this area that between the incidence of an event which may be a threat to the safety of the child and the possibility of a court case many parents of children develop a considerable reluctance to seek the necessary protection to guarantee the safety of the child. That is why I move these two amendments, to ensure that where children are at risk and the parent is either unwilling or unable to take the necessary action, an authorised body, for example, a health board or other body designated by the Minister, would have the necessary legal authority to ensure that a child's safety is secured.
I would like to support this amendment. I am pleased that we are going ahead with this Bill because it is a good Bill and it is necessary and timely. It is timely in view of the fact that only this week we have had a report from the main group dealing with the problem of violence in the home. Womens' Aid brought out a report and the women in the refuge have themselves taken some action to try to highlight the difficulties that exist. We all know that there is domestic violence in this country the same as in every other country. Changing attitudes and educating people is important, but the law must be seen to be protecting the vulnerable party, and in this instance it is the wife and the children.
I am concerned that this Bill should cater for all the needs that could be there at present because we have not had any amendment since 1981 to the original Act which was in 1978. Senator Robinson's amendment is important. We are talking about a situation where a wife is too frightened to take a case. There could be a situation where the children in the house are being abused and beaten and the wife might be colluding. I would say that would be unusual but the provision should be broadened in scope to be able to cope with that type of situation. We must ensure that the agency, health board or other body designated by the Minister as being a body authorised for the purpose of making an application within the meaning of section 4 can deal with such a problem. I know there are many circumstances where this is necessary. At present the hands of social workers or the bodies who deal with families are tied. I ask the Minister to seriously consider this amendment given that this problem is, if you like, growing all the time. We are learning more about it. Women have become more outspoken and are able to say quite clearly what are their needs. I support this amendment.
I should like to thank Senator Fennell and Senator Ryan for their contributions on the amendments tabled by Senator Robinson. I certainly sympathise with the purpose of the amendments but I must point out to them that this is not the appropriate Bill.
I can barely hear the Minister.
I will adjust the mechanical aid. Would the Senator like to come nearer to me?
I am consigned by destiny to the back benches.
I could be forgiven for not commenting on that.
I will never forgive the Minister if he does not comment on that.
It is too early in the morning for that. First, the amendments do not take account of the purpose and rationale of a barring order, which was originally created by the 1976 Maintenance Act to enable one spouse to have the other spouse ousted from the family home, notwithstanding their mutual duty of cohabitation arising from the marriage bond. Prior to that, the only effective civil remedy available to a spouse who was subjected to violence in the family home was to seek an injunction in the High Court ordering the offending spouse to leave the home. This procedure was expensive and slow, and there were difficulties of enforcement.
A provision which would enable a third party to seek a court order suspending the right and duty of spouses to live together as man and wife is completely at variance with the concept of the barring order, which is essentially a remedy as between spouses.
The purpose of these amendments, namely, the protection of the children of married couples, comes within the ambit of the Children Act, 1908, which confers powers on health boards in this regard. As Members are aware, the Minister for Health has that legislation under review at present and a new Children (Care and Protection) Bill will be circulated in the very near future. I would suggest that a debate on that Bill, or on the Private Members' Bill on the same subject at present before the Dáil if it were to reach this House, would be a more appropriate occasion to raise the matters covered by these amendments.
The Minister has corrected one point for me in that. I think I said that the original Bill was in 1976. However, I would like to say to the Minister that what was appropriate in 1976 is not appropriate now. In the 11 years since we have had a number of reports, a great deal of insight into the motivation for this brutality or violence, has been the toleration level and the desperation level of it. To talk about intent in 1976 and mutual duty to cohabitate and all of that, is very old-fashioned, if the Minister does not mind me saying so. We should be prepared to look to the future. We are not going to get another piece of legislation or amendment on this Bill, until goodness knows when. It is better when a Bill is going through the two Houses that the views of people who have first-hand experience of these cases, as has Senator Robinson and as, indeed, I have had, and the options suggested by them are seriously considered rather than, with all due respect, the views of the parliamentary draftsman and the staff of the Department. They are excellent in terms of the theory of legislation but who, I suggest, do not know what is happening in practice.
One has to concede that there is a certain logic in the Minister's argument. The trouble is, unfortunately, that, first, we do not know what is going to be in a children's Bill or when the Bill will be published. I have to concede that the Government have been quite expeditious in producing legislation, far more in many ways than their predecessors. I do not know if that is simply because they are producing legislation which was almost finished by their predecessors——
And circulated.
—— I will leave that for former members of the previous Government to comment on. Nevertheless, there is a certain argument from authority here in that the drafter of these amendments is a reasonably well-qualified lawyer, qualified both in academic terms and in terms of professional experience. The Minister would have to convince me a little bit that something similar to the provisions contained in amendments Nos. 1 and 10 was going to be contained in the children's Bill and also to persuade me that the children's Bill was going to be produced reasonably quickly before I could consider withdrawing these amendments. It is quite clear that there is a problem in this area. The Minister in his reply did not attempt to deny that there was a problem in the area relating to amendments Nos. 1 and 10, that children are at risk and that in our legislation the primary concern must be for the welfare of children.
In many ways we have delayed long enough. The children's Bill, and the flaws in our children's legislation, were identified as far back as 1969 or 1970 when the Care Memorandum was produced. We have waited through commissions of various kinds since then for amending legislation to do with children. It appears to me that in the light of the amendments proposed to the Family Law (Protection of Spouses and Children) (Amendment) Bill, 1987, it would be appropriate to incorporate into this Bill what has been learned about the deficiencies of the law in relation to the protection of spouses and children over the past number of years arising out of the operation of the existing legislation.
I should like to ask the Minister specifically, will there be a provision in the children's Bill, or can he give any sort of an undertaking, that would meet the requirements of amendment No. 10? To say that it would be more appropriate in another Bill is not the same as saying that it will be there. I would like to know if the Government yet have a view on the principal contained in amendment No. 10 because that is what I would like to talk about rather than the appropriateness of it in this legislation. When it comes to the appropriateness of it in this area, as Senator Fennell has already said, I would have to defer to the opinion of Senator Robinson who is reasonably conpetent to judge the appropriateness of an amendment like this and where it properly fits in legislation.
I must say that I have not always had the same confidence in the competence of the Senator who proposed these amendments as has Senator Ryan but, I suppose I am entitled to disagree when the occasion presents itself. I would certainly not like the House to think that I, or everybody here, would take it that there is only one such authority in legislation such as this, namely, the Senator in whose name the amendments stand. Nothing could be further from the truth. That should be put down as marker No. 1.
Senator Ryan appeared to be somewhat confused with regard to what is going on right here and now. I hope I am paraphrasing him correctly. If experience shows that legislation needs to be amended — this can very well and does happen and many amendments come about as a result of experience of how legislation works — it does not necessarily mean that you can amend a Bill which does not provide for the type of amendments we are talking about. The point I am making is that this Bill does not allow for the type of amendments we are discussing as additional amendments from Senator Fennell. I have said here what is involved in the amendments and I would like to refer Senators and Senator Fennell in particular to the Long Title of the 1981 Bill which is
an Act to make proper provision for the protection of a spouse and any children whose safety and welfare requires it because of the conduct of the other spouse ...
I think I have shown to the House that the proper place for the type of amendment the Senators are supporting here today is within the legislation which I mentioned that the Minister for Health will have before the Houses of the Oireachtas in the reasonably near future.
Senator Ryan, as an old, seasoned campaigner must surely know that it would be very unwise of me to give him an assurance here and now whether my colleague, the Minister for Health, will accept or not accept amendments put forward. Senator Ryan must know, as we all know, that to any Minister of any Government coming in here on matters in which we are all keenly interested, matters on which we all want to be 100 per cent helpful, any reasonable and fair amendment would be acceptable. I believe that what is in the amendment set down by Senator Robinson is very appropriate to the health Bill which will be coming before the House shortly. If a reasoned case is made then, and I have no doubt but that that can be and will be done, I would be confident of its being given every consideration.
I would have thought that if these amendments were outside the scope of this Bill they would have been ruled out of order by you, a Chathaoirligh. It appears to me that the authority as to whether amendments are appropriate or are proper for legislation is yours and not the Government's, the Minister's or his advisers. The Minister and his advisers may be of the opinion that there is a better place for the amendments but these amendments are accepted as being within the scope of this Bill by virtue of the fact that they are accepted as amendments which are in order to be considered on Commitee Stage of this Bill. Consequently, I am at a little bit of a loss to understand the Minister. If the Minister is saying that he thinks there is somewhere better for them, that is fine, but he cannot tell me that somehow, because the Long Title of the original legislation said something, that these amendments are outside the scope of the Bill. If they were outside the scope of the Bill they would not be in order.
I have to concur with that because I do not understand how providing for these amendments can be outside the scope of the Long Title as read by the Minister. It seems that that wording leaves room for quite a degree of manoeuvring.
Further, the Minister suggested that the amendment concerning the protection of children will come in under the proposed Children Bill and that will do nothing for the wife, the spouse in question. I am asking the Minister to look at her case in the event that the circumstances she is living in are so dangerous and so intimidatory that she cannot take this barring or protection order.
Just in case there is some misunderstanding here about a difference between my ruling and what has been said by the Minister or by Senator Brendan Ryan, let me say that I ruled that these amendments were in order under Standing Order 88 and I ruled that we would take them on Committee Stage. I thought at the time I ruled that the amendments were in order, that they were not in conflict in any way with the principle of the Bill. However, because, as the Minister has just said, there is other legislation coming from the Government which is very close to the Bill before him today as Minister for Justice, the grey line between the amendments we are debating and the Bill which may be the next legislation may be very narrow, but I thought, as Cathaoirleach, that the amendments were relevant to the legislation before me when I made my ruling. It is one of these grey line areas again.
I accept your ruling.
I find also — this is for the benefit of all of us — that if we take amendments here we have a less heated atmosphere——
It is good for discussion.
Yes, something which perhaps you do not get in the other House.
It is a wise decision, too but I am of the opinion that the amendments being proposed are more appropriate to the health legislation.
To have them all taken into account and to include the spouse in the Children Bill.
I support the principle of Senator Fennell's argument. It is an opportunity in a Bill where we are protecting the rights of spouses "where spouses are unable ...". For different reasons emphasis must be laid on the word "unable". I do not put so much weight on "unwilling" as on "unable" because the alternative may be put on a spouse by the other spouse. This is an opportunity to correct and protect that.
The Minister is quite right to refer to the Children (Care and Protection) Bill. I happened to be a member of the select committee who dealt with Committee Stage of the Children Bill under the previous administration. There are certain difficulties with that Bill, or with parts of it, and that was one which took up much of our time. If we can put an amendment to this Bill I think this would be an opportune time to do so.
I promise that this will be my last contribution because I do not have evidence in depth to pursue a long discussion on this. I want to associate myself with what Senator Fennell has just said. I cannot understand how a children Bill can contain a clause which is specifically related to the difficulties of a spouse. We are talking essentially about a children Bill which would contain a clause enabling a health board or similar authority to seek a protection order or, presumably, a barring order against a person living in a family home, as opposed to a question of taking a child into care or protecting a child outside the home. We are talking about protecting a child inside the home by excluding somebody from the family home. I make no bones about the fact that I was not particularly well prepared for this discussion because the notice of the job I had to do was rather short. It is, as you said, a Chathaoirligh, a grey area.
The issue here is effectively the protection of the right of a spouse to do something he or she would wish to do but which he or she is unable, for one reason or another, to do. It is essentially the child who is being protected, but the intent is to protect the child in a manner or in a form which it is presumed the spouse would wish if he or she were able or willing to do so. Therefore, it is not necessarily a matter for a children Bill. It is a grey area but on balance it ought to be in a Bill like this. Parts of this amendment would seem, I think, inappropriate in what would be designated as a children Bill because it effectively would be a protection of the rights of a spouse rather than the protection of the rights of a child.
I would just like to make one other small point. I do not think this power would be used very often. It would be very rarely used because, in the main, women will go and get their own protection or barring order. Certainly, there have been cases which I have come across in the past. In one instance, long after I had been involved with the case, a woman was killed by her husband. We have had over the past five years a number of wives who were killed by their husbands. This is a terrible thought, but it is a reality. If we look at that kind of violence, viciousness and determination to beat a spouse, we are talking about a woman who would be unable, because of fear, to take out a barring order. I would like the Minister to consider that. I do not think it is something that is going to be taken every day or every week in the courts, but that the power would be there for a board for a designated body, if that was necessary.
There is a problem with what the Senator suggests, regarding when the power should be used and when it should not be used. One just cannot say it could be used once a week or twice a month if the power is there. There is that difficulty. It is very easy, in legislation like this, to cross over the line unintentionally on marriage law, on law for the protection of threatened children and on law which has to do with the protection of spouses. There are three different matters and this is the first of them.
The amendment put forward in the name of Senator Robinson states: "In circumstances where there are reasonable grounds for believing that the safety or welfare of any child so requires,". What is suggested in that amendment, having regard to its wording, makes it far more appropriate to the Children Bill. I am quite satisfied that that is the case. While I share the concern and see difficulties and would like to see provision made for the circumstances outlined, and would be very sympathetic with the cases made I truly believe it is a matter for the other Bill.
Amendment, by leave, withdrawn.
We come to amendment No. 2 to section 2. Amendment No. 2 is related to amendments Nos. 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15 and 16, which are similar amendments and Nos. 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15 and 16 may be discussed together. There is often confusion here and I appreciate that Senator Robinson is not present.
I have a list of the amendments that I thought would be taken together.
All those amendments are related to section 2 and the Senator may discuss them together.
I move amendment No. 2:
In page 2, between lines 26 and 27, to insert the following:—
" `person sharing the household' means any person who normally resides in the home of the applicant spouse;".
This is again an attempt to reflect some of the realities of life today, in particular in the area of the protection of children. The Bill as it stands talks about protection orders prohibiting what is called here the respondent spouse from using or threatening to use violence against, molesting or putting in fear the applicant spouse or the child. I emphasise the child, but it could be either the applicant spouse or the child. The only person against whom a protection order can be sought is the respondent spouse. That is a very narrow vision of what is the reality of many people's experience today, where the threat of violence, or of molestation, or of putting in fear can often emanate from somebody other than the spouse. A person may not necessarily be a spouse in law. A person may be a relative other than a spouse — an uncle or a grandparent. There have been a number of horrifying and spectacular court cases recently involving molestation of children by people who were living in the family home but who clearly were not one of the parents of the children.
It is a logical and reasonable extension of the intent of the Bill to extend the protection contained in this Bill so that any person residing in the home who is a threat, who is threatening to use violence, threatening to molest, or threatening to put in fear either the applicant spouse or a child should be the subject of a protection order. It is not a fundamental amendment that the Minister should have any problems with. It is not an amendment which in any way undermines any other principle of family law. It is a reasonable reflection of the problems many people have in domestic life today. It is an amendment which would extend the protection of the Bill without in any way altering the principles involved.
I agree with this amendment but I am conscious of the fact that it is something the Minister possibly will be able to refer down the line to the coming Children Bill. This could cause some great difficulties. It would be anything but straightforward. We are talking about the molestation of children. I would like to think we could bring it in at this point because one is always anxious to insert amendments into existing legislation rather than have them deferred for some other pending legislation. I would like to think that this would be desirable, but I accept that there will be difficulties.
I thank the Senators for their contributions. Amendments Nos. 1 and 10 are, I suspect, based on a misconception of the purpose of a barring order. It is a statutory remedy available as between spouses in cases of domestic violence whereby the applicant spouse can have the respondent spouse ousted from the family home notwithstanding the matrimonial duty of cohabitation. Apart from the argument of principle, there are practical reasons, as Senator Fennell has said, why these amendments were unacceptable.
Consider a situation where a married couple are living in a room in their landlord's house. If the landlord is anxious to get rid of the tenants and uses violence, or threatens violence in his efforts to evict them, under these amendments either of the couple will be able to seek to have the landlord barred from his own house. In other words, what would otherwise be a dispute between a landlord and tenant, for which the courts can already provide adequate remedies, could end up in the family courts with the landlord being put out of his house. This would clearly be a wholly inappropriate and unwarranted use of the barring order remedy.
The fact that, in many cases like this, the householder may well be the parent or in-law of one of the married couple concerned does not make the use of a barring order in such circumstances any less inappropriate. Nor, indeed, where violence is offered by a person sharing the household to a child of the married couple rather than to one of the spouses. The fact is that there are appropriate remedies available for this kind of situation. In particular, in the case of children at risk of domestic violence, there is, as I have already said in relation to earlier amendments, the Children Act, 1908, which offers health boards a number of courses of action. Again, I would suggest that the subject matter of these amendments would also be more appropriate to the debate on the proposed Children (Care and Protection) Bill or on the Private Members Bill on the same subject at present before the Dáil. In this particular instance I would hope the cases that can be made will be made and that they will be given every consideration by the Minister who will be dealing with that legislation.
Is amendment No. 2 withdrawn?
Yes.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3.
Amendment No. 3 has already been discussed with amendment No. 2.
Amendments Nos. 3 to 5, inclusive, not moved.
I move amendment No. 6:
In page 3, subsection (2) line 25, after "order" to insert "or in exceptional circumstances a barring order".
I am going to do no more than move this amendment. I would like to hear the Minister's views on it. It is not a matter on which I feel particularly competent to adjudicate. It is Senator Robinson's amendment. For the sake of the House and that of Senator Robinson I want formally to move this amendment and I would like to hear the Minister's view on it.
I am opposing this amendment because if it were accepted it would mean that a barring order could be made in summary proceedings putting a spouse out of his or her own home without notice and without affording that spouse any opportunity to argue the case before the court or challenge the evidence on which the order was granted. This is a draconian solution to the problem of domestic violence which, in my view, simply cannot be justified.
The right to live in one's own home is far too important to be set aside except on the most serious grounds, and after due process of law. That process requires that a person against whom allegations are made should be entitled to be heard in his or her own defence. To put a spouse out of the family home on the untested evidence of the other spouse — no matter for how short a period — would in my view be in breach of that principle and is unacceptable. If the degree of violence being committed by one spouse against the other is so gross or persistent as to demand that the offending spouse be removed forthwith from the family home, then the remedy surely lies in invoking the criminal law. The offender could then be arrested and brought before the court and remanded in custody if the court considered that necessary.
The existing provision for the grant of a protection order on an ex parte basis pending the hearing of an application for a barring order would seem ample to deal with any less serious situation. The grant of a protection order in such circumstances is quite acceptable since it merely directs the respondent spouse not to use or threaten violence or molest or put in fear the applicant spouse; these are acts which no person has a right to do in any event. The particular advantage of the protection order is that the Garda, who are notified of every such order, have the power to arrest without warrant for breaches of the order. The possibility of immediate arrest is generally acknowledged to be effective in preventing offenders from engaging in further violence.
An Leas-Chathaoirleach
Is the amendment withdrawn?
Yes.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 7, 8 and 9 are consequential and, therefore, cannot be moved.
Amendments Nos. 7 to 9, inclusive, not moved.
Question proposed: "That section 3 stand part of the Bill."
I would like to ask one question. Section 3 states that an order if made by the District Court or by the Circuit Court on appeal from the District Court shall, if not previously discharged, expire 12 months after the date of its making. Can the Minister tell us if a barring order lasts for 12 months and do the people have to apply to have it extended in the ordinary course of events? Does it normally expire after 12 months?
It expires after the 12 months.
Question put and agreed to.
SECTION 4.
An Leas-Chathaoirleach
Amendment No. 10 was discussed with amendment No. 1.
Amendment No. 10 not moved.
An Leas-Chathaoirleach
Amendments Nos. 11, 12, 13, 14 and 15 are consequential and hence cannot be moved.
Amendments Nos. 11 to 15, inclusive, not moved.
Section 4 agreed to.
SECTION 5.
An Leas-Chathaoirleach
Amendment No. 16 is consequential on the earlier amendments and cannot be moved.
Amendment No. 16 not moved.
Question proposed: "That section 5 stand part of the Bill."
I seek your guidance, a Leas-Chathaoirligh. There was one issue I wanted to raise and I am not sure whether it arises on this section or section 4 or on Report Stage. It is in regard to information and publication of the facts of the case. Section 14 of the Principal Act deals with the hearing of proceedings under this Act. I would like directions as to whether I can bring in an amendment on Report Stage?
An Leas-Chathaoirleach
It is open to the Senator to introduce an amendment——
I do no know whether I am on the right section.
An Leas-Chathaoirleach
——on any item that has been discussed during the course of the Committee Stage.
I would like to give notice that I will be introducing an amendment on Report Stage on this.
Question put and agreed to.
Sections 6 to 9, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.