This Bill repeals and re-enacts with substantial amendments the Family Law (Protection of Spouses and Children) Act, 1981. Senators will immediately note the title which has been given to the Bill. It is a Bill about domestic violence. While it contains provisions to protect persons against such violence, I think the House will agree that the title of the 1981 Act is too modest in identifying the subject matter as being protection rather than violence.
Violence in the home is a horrible act and society, I think, is now more aware of the insidious, cowardly and brutal measure it can be against its victims. The title of the Bill is intended to put that subject to the forefront, not to hide it as the 1981 Act appears to do.
The House will readily accept that the problem of domestic violence must be addressed by proper legislative provisions and, where necessary, by the involvement of a range of agencies, including the Garda Síochána, the social services and other support services, including mediation, counselling and legal aid. It is the Government's intention to keep under review all avenues of approach in this difficult area to best protect and support victims and to provide that the perpetrators can be dealt with quickly and effectively under the law.
As far as civil law is concerned, the Bill provides a legal framework within which the victims of domestic violence can seek a range of remedies in the courts to suit the circumstances of a case. Underpinning the legislative provisions contained in the Bill are measures to improve access to justice, extend the protections under the 1981 Act to a wider class of persons, make changes in those protections and strengthen the powers of arrest and entry of the Garda.
The most widely availed of remedy in the area of domestic violence is the civil law remedy of a barring order, which was introduced in 1976. Prior to that, the main civil law remedy available was an injunction in the High Court or Circuit Court. The barring order remedy was a radical innovation at the time, although it was and continues to be limited to violence by a spouse against the other spouse and children.
The Family Law (Protection of Spouses and Children) Act, 1981, strengthened the law on barring orders following representations by various women's organisations. The main changes made were the extension of the District Court's time limit from three to 12 months, the granting of a statutory power of arrest without warrant to the Garda for breaches of orders and the creation of a new type of order called a protection order.
These orders were designed to provide immediate protection for the applicant spouse or child pending the determination of the barring order application. They fell short of barring the offending spouse from the family home. The remedy for violence in the home does not stop short at barring orders. Violence is also a ground for judicial separation and on the granting of a separation decree the court may confer on one spouse the right to occupy the family home subject to such conditions as it thinks proper or it may transfer ownership of the home to the other spouse in suitable cases.
Court statistics show the average annual number of applications to the courts for barring orders over the past three years was 4,365 and the number of decrees granted was 2,248. This appears to indicate at first sight that just over half the applications for barring orders result in the granting of orders and the courts show a marked reluctance to grant orders. However, further analysis reveals that a good number of applicants withdraw their applications or fail to turn up for the court hearing.
The experience of the Legal Aid Board is that 90 per cent of those who turn up in the District Court for the hearing of their applications for barring orders are successful and the vast majority of orders granted are for the full 12 month period. The reasons victims do not proceed with their applications vary. It may be as a result of intimidation by the other spouse or a genuine change in circumstances where the respondent spouse stops the violence. It may be that the applicant spouse does not want to go so far as to have the respondent barred from the home or the victim spouse is prepared to give the respondent another chance. We must be careful in amending the law in this area to ensure that change will be for the best in what is a very complicated area, involving family and other relationships, high emotions and, most importantly, circumstances in which the protection of life itself may be at stake.
In 1987 the Family Law (Protection of Spouses and Children) (Amendment) Bill was initiated in the House to amend the 1981 Act. This was intended to allow the court to grant a long-term protection order. The Bill was eventually withdrawn due to opposition from women's organisations based on the fear that, if the Bill was enacted, the courts might almost invariably take the soft option of granting a protection order rather than a barring order, thus diminishing the existing legal protection for victims of family violence. Senators should note that I am addressing this problem in the Domestic Violence Bill, 1995, but in a way which will obviate the concerns which arose in 1987.
A feature of the barring order remedy which has been most often criticised is that it is confined to inter spousal violence. Increasingly over the years, patterns of social behaviour have changed. Many households are established on the basis of non-marital arrangements and violence in those households, as in households with married couples, is not, unfortunately, absent.
It is also the case that violence is not confined in the main to spouses or cohabitants. It can occur between parents and children, brothers and sisters and other members of households. The Government accepts that the law in this area needs to be updated in the light of these realities and as part of its programme of family law reform is committed to the changes now provided for in this Bill.
In providing for the changes encompassed in the Bill I have taken into account various recommendations of submissions from, for example, the Law Reform Commission in its report on child sexual abuse, the Second Commission on the Status of Women, the Kilkenny incest investigation team and groups like AIM and Women's Aid.
The Bill is the result of a comprehensive review of the civil law in relation to the protection of persons from domestic violence which I carried out in my Department. All the submissions which have been made about the present system have been taken into account in the course of my review. I am most grateful for the information which has been put at my disposal by the various organisations concerned.
I turn now to the details of the Bill. Section 1 defines a number of terms for the purposes of the Bill, one of which, the definition of "welfare", I should like to explain further. That definition makes clear that the word includes psychological welfare in addition to physical welfare. This will help allay a perception among some groups that actual physical violence is a necessary prerequisite to the granting of a barring order.
Section 2 introduces a new type of long-term protection order to be called a safety order. The need for such a remedy — a remedy which falls short of barring the respondent from the home — has been advanced by the Second Commission on the Status of Women and the Kilkenny incest investigation team among others. Specifically a safety order will prohibit a respondent from using or threatening to use violence against, molesting or putting in fear the applicant or a child. In this respect it is identical to a protection order with the exception that the new type safety order may be granted in its own right and not as an interim measure. In addition, it may prohibit a respondent who does not actually reside with the applicant from watching or besetting the residence. The reports of the Second Commission on the Status of Women and the Kilkenny incest investigation team recommend that provision be made for the granting of orders of this nature.
Section 2 provides that a safety order procedure will be available to persons in domestic relationships. It will be available on the application of a spouse against the other spouse, a cohabitant against the other cohabitant, a parent against an adult child and an adult person against any other adult person who resides with him or her. The term "cohabitant " is not used in the Bill. That class of person is referred to technically in various sections of the Bill as a person who is not the spouse of the respondent but has lived with the respondent as husband or wife. In the case of a safety order it must be for a period of at least six months in aggregate during the period of 12 months immediately prior to the application.
Violence in the home is not confined to violence by one spouse against another or children. It transcends all relationships. For this reason I have provided that the safety order remedy will be widely available. An exception is made where the relationship is primarily contractual in order to ensure that the remedy is confined to what are genuine domestic disputes and does not, for example, become a feature of disputes between landlords and tenants for which there are separate legal remedies. Of course, the nature of a relationship may change over time from being primarily contractual to primarily non-contractual. Each case will have to be decided by the court on its merits and subsection (1) (b) sets out some factors to which the court must have regard in reaching a conclusion. These factors include, for example, the amount of rent paid and the nature of any duties performed by one person on behalf of the other.
The section also provides for the variation of safety orders on the application of any of the parties concerned. The maximum duration of a safety order granted by the District Court is limited to five years, although it may, of course, be of shorter duration at the discretion of the court. However, on or before the expiration of an order, a further safety order may be made at the applicant's request either for the full five years or for such shorter period as the court may specify. On the other hand the Circuit Court will have jurisdiction to grant safety orders of unlimited duration although it may, of course, choose to limit the duration of an order in accordance with the circumstances of a particular case.
The section also contains a range of ancillary provisions in relation to safety orders. It provides for the variation of orders on the application of any of the parties concerned. The duration of a safety order granted by the District Court is limited to five years renewable on application for a further five years and the Circuit Court will have unlimited jurisdiction.
Provision is made to ensure that the type of objections which arose when attempts were made to introduce safety order type legislation in 1987 will not arise again. Accordingly, section 2 prohibits the court from granting a safety order where the applicant applies for a barring order. The same will also apply in reverse — the court will be prohibited from granting a barring order where the applicant applies for a safety order. This will give the applicant a degree of control over the proceedings which, according to my Department's research, victims perceive to be lacking in such cases. The court may consider the alternatives to a safety or a barring order where the applicant chooses to apply for both remedies in the same proceedings. I am providing in section 17 that a breach of a safety order will be punishable on summary conviction by a fine of up to £1,500 or imprisonment for up to one year or both.
Section 3 in general re-enacts the barring order procedure while providing in addition that the remedy will be available to a wider class of persons than spouses and their children. The effect of a barring order will remain — it will operate to bar a person from entering his or her home. The class of persons who may apply for a barring order is being extended to cohabitants — one against the other — and the remedy will be available also to a parent against an adult child. So far as cohabitants are concerned, they must, under section 3, have lived with the respondent as husband or wife for a period of at least six months in aggregate during the period of nine months immediately prior to the application.
The effect of section 3 (4) is that, except where the applicant and respondent are spouses, the court will not be able to bar a respondent with an ownership interest in the property unless the applicant also has an equivalent ownership interest. I am advised that a proposal to bar such a respondent with an ownership interest on the application of a person with any lesser interest could be open to serious constitutional challenge on the basis that it may infringe that person's property rights which the State in its laws must respect under Article 40.3 of the Constitution.
The position is different where the parties are married — an infringement of the spouse's property rights is presumed to be justified on the basis that the rights of the family founded on marriage are protected by the Constitution and take precedence over property rights. The difficulty I mention was recognised in the Report of the Second Commission on the Status of Women. It is not a difficulty with which many people, particularly non-legal people, may be over-impressed but it is something which, unfortunately, given apparent constraints in our Constitution, cannot be ignored.
Section 3 (5) contains a general saver which protects the rights of persons other than the applicant or respondent who have a legal or a beneficial interest in the dwelling. For example, the fact that an applicant has succeeded in having a respondent barred from a property will not render him or her immune for ejectment proceedings instigated by the landlord for non-payment of rent.
The maximum duration of a barring order granted by the District Court will be three years as opposed to one year at present. Breach of a barring order, under section 17, will be an offence punishable on summary conviction by a fine of up to £1,500 or imprisonment for up to one year or both. This is an increase on the present law of a fine of up to £200 or imprisonment for up to six months or both.
Section 4 empowers the court to make an interim barring order in emergency situations and on anex-parte basis if necessary. This power will significantly increase the ability of the courts to react quickly in situations of domestic violence. The section empowers the court to grant, subject to certain conditions, an interim barring order pending the determination of an application for a barring order. Such interim orders may be granted without notice to the respondent where the court considers it expedient in the interests of justice to do so. Nevertheless, it is important to guard against the danger of a misconceived or malicious application, particularly when one considers that a respondent could be barred from the home on the basis of an allegation which he or she has had no opportunity to refute. For this reason, the granting of an order is confined to extreme cases, that is, cases where there is evidence that there is an immediate and serious risk of significant harm to an applicant or dependent person if the order is not made immediately and the court is satisfied that the granting of a protection order would not grant sufficient protection.
Section 5 re-enacts section 3 of the 1981 Act and provides for the granting of a protection order pending the determination of an application for a barring order. A protection order may also be granted pending the determination of an application for the new type safety order provided for in the Bill.
Section 6 is a significant new provision which allows a health board to apply for a barring order or a safety order on behalf of a victim of domestic violence. Such provision has been recommended by the Law Reform Commission and the Kilkenny incest investigation team. The health board will be obliged to consult with the victim before applying for a barring or safety order.
Subsection (1) specifies the circumstances in which a health board can apply for a safety order or a barring order. The section applies where a health board (a) becomes aware of an incident or incidents which in its opinion puts into doubt the safety or welfare of the victim; (b) has reasonable cause to believe that the victim has been subjected to violence or otherwise put in fear of his or her safety or welfare; (c) has reasonable grounds for believing that the victim or parent of a child victim would be deterred or prevented from applying for a barring order or a safety order and (d) considers it appropriate to apply for an order having ascertained, as far as reasonably practicable, the wishes of the victim or parent of the victim.
Another aim of the section is to allow a child stay in its own home where possible and to have the perpetrators of violence rather than the child removed from the home. However, in making any order where children are concerned the court will have to be satisfied that there remains a parent in the home who is willing and able to provide reasonable care for the child. This will avoid a situation where a child could be left in the home with a parent whose capacity or willingness to provide care is suspect.
Section 7 empowers the court to adjourn proceedings for a barring or safety order which affects the welfare of the child where it considers that a care or supervision order under the Child Care Act might provide a more appropriate remedy. It may order a health board to investigate circumstances with a view to arriving at the best possible solution in the child's interests. The objective is to ensure that the barring or safety order solutions are not viewed in isolation but are considered against the backdrop of other services which can be provided by a health board.
Many of the remaining provisions of the Bill are based on the provisions of the 1981 Act and mirror those provisions closely. There are some important exceptions, however, with which I intend to deal specifically.
Section 9 is an important provision which empowers the court to deal with maintenance, barring, family home protection and child care applications in the same set of proceedings. This provision reflects the fact that the problem of domestic violence is often intertwined with a variety of other problems which may arise during the course of domestic violence proceedings. For example, a wife who is being abused by her husband may also be anxious about obtaining maintenance from him for herself and her children. The purpose of this section is to allow the court to deal with all these matters as a package. In some cases of course such extension of the scope of the proceedings would be agreed to as a matter of convenience by both parties. Alternatively, there may be emergency cases involving children where, despite the objections of one of the parties, the court finds it necessary to make, for example, an emergency care order for a short period of time in accordance with its obligations to regard the welfare of the child as the first and paramount consideration.
Section 13 provides for the discharge of orders on the application of any of the parties concerned. The court will not be empowered to discharge an order unless it is of the opinion that the safety and welfare of the victim is no longer at issue. This represents a stronger test than the safety and welfare test which is currently applied. If the courts are asked to discharge an order which was originally made on safety grounds, they must be satisfied that the psychological welfare of the victim, as well as his or her physical safety, no longer requires it.
I have already indicated that section 17 of the Bill makes contravention of orders under the Bill a criminal offence and that the fine and term of imprisonment will be higher than under the present law in the 1981 Act. The gardaí will continue to have a power of arrest without warrant for breaches of barring and protection orders and that power is being extended to the new safety order and interim barring order procedures.
The present powers of arrest without warrant of the gardaí in domestic violence situations are unclear. The gardaí can arrest for breaches of barring and protection orders but, where those orders do not exist and violence has occurred, they are not in a position to arrest for many of the acts of violence which occur. The difficulty arises because of certain common law distinctions between different types of assault which permit arrest without warrant in some cases but not in others. Subsection (2) of section 18 removes those difficulties by making clear that a power of arrest without warrant will exist for offences of assault occasioning actual bodily harm or grievous bodily harm.
I am also making important new provisions in relation to the powers of the gardaí to enter a home or other place for the purpose of an arrest for breaches of barring, protection or safety orders. The gardaí will have power, if need be by force, to enter any place where they suspect the perpetrator to be. At present, when gardaí are called to a scene of domestic violence they may not be able to gain entry. The perpetrator may have forced or convinced the victim not to admit the gardaí. Scenes of domestic violence are difficult but too often it may be said that the gardaí are not in a position to investigate fully the violence against the victim, be it adult or child, and this new provision in the law — to enter by force if necessary — is deemed necessary by the gardaí and the victims of violence themselves. Similar powers of entry will apply when gardaí wish to effect an arrest for criminal assaults.
These then are the main provisions of the Bill. Other Departments also have responsibilities in relation to the problem of domestic violence. The Department of the Environment makes special provision for the housing of victims of domestic violence. The Department of Health provides, through health boards, financial assistance to organisations involved in providing assistance to victims, and it is also responsible for reform of the law in relation to the care of children. The Department of Justice has responsibility for criminal law and the Garda Síochána operate special policies to deal with domestic violence.
Counselling, for which my Department has responsibility for funding, must continue to have a part to play. Over the past two years I have more than doubled State funding to the many groups who are engaged in marriage counselling throughout the country.
I hope that this Bill will commend itself to Senators on all sides of the House. I look forward to a good and constructive debate. I commend the Bill to the House.