Seanad Éireann debate -
Tuesday, 17 Dec 2002

Vol. 170 No. 24

Domestic Violence (Amendment) Bill, 2002: Committee and Remaining Stages.

SECTION 1.

Ms Terry

I move amendment No. 1:

In page 3, line 11, to delete "having regard to the circumstances of the particular case," and substitute "in exceptional circumstances".

I ask that the amendment be adopted. I agree with the Minister of State that every case is urgent, but the provision of the clause "in exceptional circumstances" is extremely important to groups representing people who find themselves in these situations. Those groups have asked me to impress strongly on the Minister of State the importance of having this phrase reinstated in the Bill. The Supreme Court decision did not require these words to be removed, which is important. It is mentioned in the court's decision that the criteria are not available to it. I suggest we put that clause, as provided for in the Act, in the Bill and that the criteria be drawn up. It would not take a lawyer long to draw up such criteria if the Minister of State accepts the amendment. It is important to the groups with a strong interest in the Bill that the words should be retained.

Mr. B. Hayes

I second the amendment in the name of Senator Terry. From my understanding of the Supreme Court proceedings, the State, in the action it took in defending the 1996 legislation, referred to the exceptional cases provision as set out in that legislation. The Supreme Court ruling stated that:

There is no indication of the criteria by which the District Court in the case of an ex parte application for an interim barring order is to decide whether it is an exceptional case in which it is necessary or expedient in the interests of justice to grant the application.

The court has clearly stated that there are not, as Senator Terry pointed out, criteria established whereby these cases can be determined.

Other Supreme Court rulings map out what the court believes the Legislature should follow. I would have thought with regard to this issue that the court has asked the Oireachtas to map out the circumstances by which interim ex parte barring orders can be established. That is why the amendment has been put in my name and that of Senator Terry. If we were to establish the character and criteria to be used in the District Court, it could be to the benefit of the courts in establishing the validity of these barring orders. Senator Terry and I are interested to hear the Minister's response.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

The amendment promises much but fulfils little in the sense that it does not provide the desiderata or criteria which are to be operated on by the courts. This is the difficulty with the amendment, which I cannot accept. It is an important issue and I understand the motivation behind the amendment.

The amendment says that the phrase "having regard to the circumstances of the particular case," should be deleted and replaced with the term "in exceptional circumstances". If that was done, no criteria at all would be provided.

Senator Terry points out that we are not obliged to follow opinion on this matter, that the Supreme Court is not the Legislature and that the Oireachtas has a separate voice on this. Nonetheless, the court has expressed the opinion that the phrase "in exceptional circumstances" is meaningless. It would not do the House credit if the Bill was amended and that meaningless phrase restored. To give that phrase flesh and blood, an outline would have to be given in the legislation – a task that has eluded the Opposition Senators who have tabled this proposal.

The Senators have not specified what exceptional circumstances are envisaged. This is not an easy task. The proposal before the House is that we simply use the phrase "having regard to the circumstances of the particular case". That leaves it to the courts to determine this issue and I accept that. The courts in general are entrusted with a lot of discretion in the area of family law provision and matrimonial law, whether on the division of property, the exclusion of parties from the family home or the determination of appropriate sums of maintenance. These matters are left to the discretion of the court in the particular circumstances of a case.

As Members know from their work as public representatives, the variety of circumstances that can arise in family proceedings is extraordinary. To devise a legislative formula to cover all these circumstances would be a difficult task and, because of that, many of these matters are left to the court to determine in a particular case. By sending out a signal to the courts that this is now an order that can only have a finite duration, its temporary and provisional character is highlighted. I am not prepared to accept an amendment that would go beyond that and say that a phrase to which the Supreme Court took exception should be restored to the legislation.

From reading the speech of the then Minister for Equality and Law Reform, Mr. Mervyn Taylor, on Second Stage in this House on 31 January 1996, it is apparent that the ex parte interim barring order was seen as a remedy for what were, in Mr. Taylor's words, “extreme cases”. I refer here to 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. It is known that the granting of interim orders ex parte rather than on notice became a more widespread practice rather than an exception, notwithstanding the existence of that express legislative provision. This happened because the criterion for the granting of an interim order in practice is that there would be an immediate risk of significant harm to an applicant or a dependant. Those are the circumstances that any court examining this matter would act upon and rely upon.

Once such a provision is introduced, it is difficult to set a limit on it. The reason I suspect the Supreme Court did not find favour with the provision on exceptional cases is that it appears to relate to the sociology of the provision rather than giving any guidance on its legal interpretation. For those reasons, I am unable to accept the amendment, although I understand the motivation of those who moved it.

Ms Terry

I am disappointed the Minister of State will not accept my amendment.

Mr. B. Hayes

I understand the Minister of State's reply. It is difficult to define an exceptional case in statute law. However, when the legislation was initially put through this House and the other House, a former Minister, Mervyn Taylor, referred to the fact that the granting of such orders was confined to extreme cases. He did not define what he meant by "extreme cases"; he left it to the application of the courts. The Supreme Court ruling on this matter seems to rap us across the knuckles for our failure to establish what we believe to be exceptional cases. We are not attempting to slow down the progress of this important Bill, but we must return to this issue. It is not always the case that the courts want to be the sole arbitrators in such matters. They want a set of circumstances under which they can determine, based on the evidence, what is in the interests of natural justice. This is one of the cases where our knuckles were rapped. We will not be able to devise new criteria between now and 6 p.m., given that we have failed to do so since the Supreme Court ruling.

Mr. B. Lenihan

I will not rap the Senator's knuckles.

Mr. B. Hayes

This point needs further examination. In 1995 the sponsoring Minister clearly stated that it was for extreme cases. As the Minister of State said, it has a wider application now than was originally envisaged in 1995 and 1996.

Mr. J. Walsh

While I accept some of the arguments, the points made by the Minister of State are valid. It will probably be difficult and time consuming to draft criteria. It is desirable that such criteria should be drafted and enacted as soon as possible because there are time constraints. Many Senators said that this Bill must be placed on the Statute Book as soon as possible, particularly given the time of the year and the fact that alcohol is a factor in such cases. We must have regard for the serious decision taken by the court, namely, that someone will be barred from their home and will not be allowed to contact their children. Section 1(3)(a) states, “An interim barring order may be made ex parte where, having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice.” A lawyer may have a different interpretation of “expedient” from my interpretation of it. The phrase, “or expedient”, suggests a lower level of qualifying criteria on which a decision may be based. I have some concerns about that. Perhaps the Minister of State might consider that between now and Report Stage. The phrase, “necessary or expedient”, seems to dilute the necessity for a barring order. Perhaps my more legally qualified colleague, the Minister of State, will respond to that.

Mr. B. Lenihan

We are all legally qualified.

Dr. Henry

Like Senators Terry and Brian Hayes, I have received representations about the wording. We must take into account the Supreme Court's pronouncement that these words are meaningless. I do not say that because half of them are constituents of mine, although that is part of the equation. While we are not run by them, it seems unusual to put back into the legislation wording which has been thus described.

Mr. B. Lenihan

No one has a monopoly on legal expertise in this House. We are not the first with the best intentions to have created the worst, as Shakespeare once said. I agree that we must be careful about the words we use. The phrase "necessary or expedient" was mentioned. That was included in the original legislation. Expediency as well as necessity were imported as ideas from the original legislation. That is why they are included in this provision. We will examine the standards or criteria which should be applied in such cases in our review of family law legislation. Although there are many matters on which we have given a discretion to the courts, the exercise of a discretion in such a case raises far reaching questions. As regards the phrase, "in the interests of justice", the right of ownership and residence in a family home is a matter of justice as well as the protection of the spouse.

It is a difficult balancing position and that is why we, as a Legislature, have tended to leave the difficult task of deciding that balance to the courts. The fact that we are complying with the judgment of the Supreme Court in this legislation and setting a definite time limit on such an order is the most important signal to send. If we lose sight of that, we will get lost in discussing the technicalities of certain phrases. We are saying to the courts that there is a time limit on this order which they must respect. That, in itself, imports the ideas about which Senators are concerned in this discussion.

Ms Terry

I will not press the amendment in view of the Minister of State's response and the ongoing review he mentioned.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. Dardis)

Amendment No. 2 is in the name of Senator Tuffy. The Government has also tabled this amendment.

Ms Tuffy

I move amendment No. 2:

In page 3, line 22, to delete "of" and substitute "or".

I thank the Minister of State for accepting the amendment.

Mr. B. Hayes

Full marks.

Dr. Henry

I congratulate Senator Tuffy.

Mr. B. Hayes

It is an exceptional case.

Mr. B. Lenihan

It is an exceptional development.

Acting Chairman

The Chair could comment, but I will not.

Amendment agreed to.

Acting Chairman

Amendment No. 7 is consequential on amendment No. 3. Amendments Nos. 3 and 7 may be discussed together.

Ms Terry

I move amendment No. 3:

In page 3, line 31, to delete "working".

I wish to delete the word "working" so that the paragraph reads: "The order shall have effect for a period, not exceeding 8 days." If amendment No. 3 is accepted, amendment No. 7 will also be accepted. The Supreme Court described the Child Care Act, 1991, as a model which enabled the District Court, on the application of a health board, to make a care order in respect of a child without notice to the parent, where this is required, in the interests of justice or the welfare of the child. Such an order, unless the health board and the parent have custody consent, must not be for a period exceeding eight days. I want the same to apply in this case. Unless the Minister of State can give me a good reason why eight working days should be applied, I ask for it to be changed to eight days.

Mr. B. Lenihan

I can, but the Senator has raised an interesting point. The Senator's intention appears to be to have a return date of eight days rather than eight working days when an interim barring order has been granted ex parte. It is true that the Supreme Court referred with approval to that section of the Child Care Act, 1991, to which the Senator has referred. Section 17 of that Act provided for the making of an interim care order in respect of a child, including on an ex parte basis, effective for a period not exceeding eight days. However, the Supreme Court – and the Supreme Court can sometimes err too – did not advert to the fact that the eight day period had been amended to 28 days by section 267(1)(a) of the Children Act, 2001.

Ms Terry

I said that earlier.

Mr. B. Lenihan

The analogy begins to disintegrate because the Oireachtas has, in a more recent provision, provided for a period of 28 days. The provision in the Bill is closer to the 28 days than the Senator's amendment.

In this Bill it has been decided to propose a period of eight working days rather than eight days, or indeed 28 days. Advice has been taken from the Attorney General on the constitutionality of this. A working day is defined as a day other than a Saturday, Sunday or public holiday, within the meaning of the Organisation of Working Time Act, 1997. Public holidays under this Act are Christmas Day, St. Stephen's Day, St. Patrick's Day, Easter Monday, the first Monday in June, the first Monday in August, the last Monday in October and the first of January and, where relevant, the following weekday when a public holiday falls on a Saturday or Sunday.

The provision for eight working days gives far greater flexibility to the courts than would be the case with eight days. For example, with eight working days an ex parte order granted on Monday, 23 December next would expire on Monday, 6 January next. If the period were eight days it would expire on 30 December and the court would have to sit on that day or earlier. It is, of course, true that this is a greater imposition on the respondent than eight days would be, but it is not an excessive period or a disproportionate abridgement of the rights of the respondent under the Constitution.

For these reasons I cannot accept these amendments. I am concerned, in particular, when we took the advice of the Attorney General on a matter as sensitive as this that we should stay within that context.

Mr. B. Hayes

Is the Minister saying that the difficulty arises from the number of days the courts are sitting? That difficulty can arise in certain circumstances, given the very lengthy holidays taken by our colleagues in the courts. It would be entirely inappropriate if that were the reasoning. Can the Minister confirm or deny that?

Mr. B. Lenihan

I deny it, of course. It has no connection with that matter, which is settled under rules of court and upon which Senators, I am sure, have their own views. As the Senator is aware, the District Court, where the bulk of these applications are made, does not enjoy the benefit of the extensive vacation enjoyed by the other courts. I gave that illustration not in reference to court vacations but because the courts do not sit on the particular holidays prescribed in the Organisation of Working Time Act, which the Oireachtas has prescribed for the nation at large. In those circumstances it seems appropriate to take those into account in legislation of this character, something that could not have been taken into account in the 1991 Act.

Acting Chairman

Senator Hayes, have we decided whether the courts are working or not?

Mr. B. Hayes

The jury is still out on that.

Question, "That the word proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Acting Chairman

Amendment No. 5 is an alternative to amendment No. 4 and both may be discussed together, by agreement. Is that agreed? Agreed.

Ms Tuffy

I move amendment No. 4:

In page 4, line 2, after "court" to insert "and in specifying the date on which the order shall lapse, the court shall specify a date, on or before the first mentioned date, for the hearing of any application that may be brought by the applicant to confirm the order".

One of the main reasons for this Bill is to ensure a speedy return date. The Bill goes part of the way to achieving this but it does not ensure a return date within eight days. This amendment would guarantee that.

As the Bill stands an interim barring order could lapse and the applicant would have to re-apply for an interim barring order. Meanwhile the respondent will have an unresolved court order hanging over him or her. The order may have lapsed but the damage to the respondent's reputation will be ongoing. If there is no guarantee of a return date the respondent cannot put his or her side of the story to the court. This, surely, is the purpose of the Bill. I ask the Minister to accept this amendment.

Dr. Henry

I support the amendment. Problems have arisen in the courts from the way in which things have been allowed to run on and on without set dates for the return of cases.

Ms Terry

I support Senator Tuffy's amendment. It is important that we place an obligation on the court to fix a date for a return hearing within the eight day period. If we do not, an applicant could be at risk. A judge is in a better position to set the date rather than leaving the matter to the applicant or respondent. This amendment would guarantee that matters would be dealt with quickly, which is the principal purpose of the Bill. If the judge sets the date things are made easier for everybody.

Outside Dublin it is more difficult because courts sit less frequently. This amendment will ensure that the judge will set a date and decide where the case will be heard.

Mr. B. Lenihan

I can understand the motivation for these amendments. However, there seems to be a misapprehension regarding the applicant at risk. The proposers appear to believe the applicant to be at risk from his or her own legal advisers. Any legal adviser will inquire of a judge when a case is to be returned to. In any application for an interim or interlocutory order a legal adviser who sees that the Oireachtas has now provided that the order will lapse in eight working days will inquire of the judge when the matter will next be in court. Otherwise the adviser has totally failed to attend to the requirements of his client by ensuring the matter is kept alive before the court.

I am unable to accept these amendments, although I understand the motivation for them, because in entertaining an application of this type the court will, as a matter of practice, fix a return date. This is not a matter which requires legislation. This legislation will impose a limit of eight working days. A court which has made an order of this character will, clearly, at the same time make an order as to when the matter is to be returned to the court within that period.

As Senator Terry mentioned, in some provincial locations the venue may have to change because the judge assigned to the district may not be sitting in the same venue within eight days. It is impossible within the judicial economy of Government to provide otherwise because the sittings are fixed for the various venues within the district and the judge will have to fix the return date for a different venue within his or her District Court area.

The amendments are not necessary. They seem to be based on the premise that a court will wilfully allow an order to lapse for want of a hearing or that the matter will be lost sight of by the court under pressure of other business.

I appreciate Senator Henry's intervention as well but often cases seem to get lost in the court. That the Oireachtas is now providing for a very definite time limit on these orders ensures they cannot be lost, because they are lost after eight days unless the necessary application is made. It is envisaged that the applicant, or his or her advisers, will at the time of the application fix a return date. Not all applicants have legal representation – some appear in person – but judges are always mindful of the fact that they have a duty to assist a litigant and will naturally advise the litigant that the order is of only eight days duration and that they must come back to court and serve the necessary documentation on the other side.

What is at issue in this legislation and in the Supreme Court decision is the service of proceedings. It is common in civil proceedings for proceedings to be taken by one side and to obtain an order ex parte and the court always insists that the proceedings should be served as quickly as possible on the other side. Under the legislation I envisage a similar practice developing where the court will advise the applicant to serve his or her papers as soon as possible and, in the event of renewal of the order, he or she should be present at a sitting of the court within X number of working days.

This matter refers back to the earlier amendment, which was pressed, about the working days. That is the reason we considered it necessary to provide this framework of at least eight working days and not let time be lost because of the incidence of public holidays, Saturdays or Sundays. There has to be a reasonable period for the applicant to serve the papers on the respondent and for the respondent to have an opportunity to turn up and contest the case.

I appreciate in legislation of this character there is an anxiety to ensure every contingency is dealt with. The normal procedure for contingencies of this type is that if there is any particular difficulty it is dealt with by a rule of court, made under the relevant rules – the rules of the District Court or the Circuit Court where the rule making committees would draw up a specific procedure.

The intention of the Oireachtas is made clear enough in the measure before the House. These orders lapse after eight working days. I am satisfied the courts will be mindful of their responsibilities to arrange their business in such a way that their orders do not lapse because a hearing within the period of validity is not fixed. With regret I cannot accept these amendments.

Amendment put and declared lost.

Ms Terry

I move amendment No. 5:

In page 4, line 2, after "court." to insert "In any event, the court shall fix a return date for the hearing of the interim barring order application within the eight day period and that application shall be on notice to the Respondent at the earliest possible opportunity.".

Amendment put and declared lost.

Ms Tuffy

I move amendment No. 6:

In page 4, line 4, after "(d)” to insert “as it applies to the proceedings in question”.

The purpose of this amendment is to ensure clarity in the order and that it explains paragraph (d) in terms of the date that applies to the particular case in question.

Mr. B. Lenihan

We are advised that the existing proposal is clear enough. We do not believe the phrase "as it applies to the proceedings in question" adds anything to what is before the House. Therefore, we are not in a position to accept the amendment.

Amendment put and declared lost.

Ms Terry

I move amendment No. 7:

In page 4, to delete lines 5 to 8.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Ms Tuffy

I move amendment No. 8:

In page 4, line 8, after "1997)." to insert the following:

"(g) If the interim barring order is made ex parte, the court may, if it thinks fit, require the applicant to give an undertaking as to damages in favour of the respondent in the event that the court subsequently determines that the order was wrongly applied for.”.

This amendment seeks an undertaking in regard to damages, which is normal in any ex parte injunction. One of the reasons my colleagues and I tabled the amendment is that the absence of an undertaking was a matter of concern to the Supreme Court in the Keating v. Crowley case in October. The amendment requires an undertaking only where the court so orders; therefore it would apply only in exceptional circumstances. The consequences of an interim barring order being taken out against a person can be severe. Given that the Supreme Court has raised the issue, there may be cases where such an undertaking would be required.

Mr. B. Lenihan

The Senator has raised an interesting point. The Supreme Court, in referring to this issue, was not advocating that we reform the law by insisting that applicants give an undertaking as to damages before they obtained a barring order or an interim barring order in this instance. What the Supreme Court did in its judgment was to contrast the arrangement in ordinary civil cases where frequently a plaintiff or a defendant seeking interlocutory relief has to give an undertaking as to damages with the peculiar nature of this remedy where no such undertaking is required.

No doubt that was a factor that influenced the Supreme Court in arriving at the conclusion that there should be a strict time limit in the operation of this type of order. In ordinary civil proceedings a plaintiff can be required to say a particular activity shall cease on the proviso that the person trying to restrain the activity offers to compensate the party affected, if the person seeking the restraining order is proved wrong at the conclusion of the case. That is the undertaking with regard to damages.

That has never been a feature of this particular remedy. Since its inception in 1976, this remedy has proceeded without any undertakings being required of the parties. It does not require a great leap of the imagination to see why, because undertakings by many of the parties to this particular litigation would not be of great value and would be inclined to give rise to more litigation subsequently and dispute over a pot of gold that does not exist. For that reason the undertaking has not been a feature of our legislation and the Oireachtas, when it provided for this remedy, never provided for undertakings as to damages. It provided a specific system of remedies for an unique problem of domestic violence.

It would be a retrograde step if we accepted this amendment and put the clock back by saying that the previous law where one had to obtain an injunction, an undertaking as to damages was required. It would be impossible for a spouse of limited means to give such an undertaking. The Senator who moved the amendment rightly said that not all spouses are of limited means. There may be cases where spouses have substantial means. It would be a major innovation in the system of barring orders we have operated to invite the courts to consider whether undertakings as to damages should be offered by parties seeking these orders. It would not be appropriate to include such a measure in legislation of this scope and character. This legislation is essentially remedial in character and is designed to deal with the consequences of the Supreme Court judgment. There would be a danger that this amendment would place an ex parte interim barring order remedy out of reach for those who need it most.

Let us consider the position of a woman of limited financial means who may be simultaneously trying to obtain maintenance from her spouse. How could she be expected to give an undertaking as to damages? She may be a victim of violence and hesitate about seeking an interim barring order ex parte because she may expose herself to a risk of damages. We must remember that when we invite the courts to exercise a particular option – we know from our experience with the existing legislation that this gave rise to the difficulty in the Supreme Court – they often exercise it. It would be dangerous to include a reference to an undertaking as to damages.

What does the amendment mean? Does it refer to circumstances where the court refuses to confirm the interim barring order? Having heard and weighed the evidence of both parties, the court may conclude that it should not make the order. However, the application may not be without merit but merely fail to pass a particular threshold. If we introduce the undertaking as to damages we will actually change the nature of the discretion the court may exercise. Inevitably, once brought into the picture the courts will take it into account with regard to whether they should make the order in the first instance.

Through this legislation, the Oireachtas has always provided that the safety and security of a spouse and her child are paramount in the exercise of the jurisdiction in the particular circumstances of a case. To introduce any requirement regarding the financial means of the parties would be to revolutionise the jurisdiction we have exercised in this area. That is not a step I am prepared to support at this stage.

Dr. Henry

We should be grateful to Senator Tuffy for bringing this worthwhile amendment before the House. I agree with the Minister of State. I would be concerned that applicants might be deterred from proceeding with cases in circumstances where they should do so. People, particularly those of limited means, have to rely on legal advice.

As a solicitor, Senator Tuffy would have more knowledge than I of the family courts. I am always concerned about the numbers urged to go forward with personal injury or medical cases. An enormous number of those cases are lost, but in many instances the legal adviser has not told the unfortunate applicant about the large amount of money he or she may have to pay. These people have often been encouraged to sign indemnities saying they will pay the fee if the case is lost. Whereas in such cases I would like the applicant to obtain more information about the financial penalties they might incur if they lose the case, I believe applicants could be deterred from bringing cases altogether.

Mr. B. Hayes

Gratitude is owed to Senator Tuffy for the proposal of this novel amendment. It would certainly be an innovation. The Senator's point is valid in so far as it only deals with spouses with substantial means. Granting to the court the jurisdiction to determine whether a spouse in such a case could give such an undertaking is flexible. The Minister has said that this is a large step to take. I accept that, but it is an important fact that not everyone who comes before the court is of insignificant means. Could this provision be used to harm another party, particularly the respondent? In bringing forward the amendment, Senator Tuffy has highlighted this important issue.

Mr. B. Lenihan

Senator Henry raised the matter of costs. In the District Court an order for costs could be made against an unmeritorious applicant but the amount of measured costs would be low. In the Circuit Court, they would be more substantial. That penalty already exists for an unsuccessful applicant and it is something any applicant has to consider before entering legal proceedings.

What we are discussing here is a more radical requirement where an applicant for interim relief actually gives the court an indemnity against any loss the other party suffers in the event of the applicant being unsuccessful. That is a far reaching step to take and is a fundamental change to this jurisdiction, which is statutory in origin.

Senator Brian Hayes made the point that a question of means might arise and that the applicant might be wealthy. In such circumstances the Oireachtas would have to legislate because, in the amendment, it is not proposed to discriminate against the person of means. The question of violence must also be considered. Irrespective of the person's means, what we are talking about is balancing the desideratum of stamping out domestic violence and the operation of penalty points in the case of a wealthy applicant who would have to pay money up front to deter an alleged case of violence. While I can see the interesting argument that can be made for this proposal, I am not convinced of its merits.

Amendment put and declared lost.

Ms Terry

I move amendment No. 9:

In page 4, between lines 9 and 10, to insert the following:

"(f) Where an interim barring order obtained ex parte, pursuant to subsection (3)(d), is to be continued pending any adjournment of the application, so that the Respondent may be heard, that the period of adjournment should not exceed eight days.”

I tabled this amendment because of concerns that within the eight day period when an application is being heard the respondent may request more time for preparation. I want to ensure that if a judge decides that additional time should be provided, it should be a period of no more than eight days. If that is not set down, the judge could allow a month or three weeks. To ensure the system works, I ask that the amendment be accepted. It would provide for a speedier resolution and at the same time protect the applicant.

Mr. B. Lenihan

I understand the spirit in which the amendment is being moved, but I am not certain it adds to the legislation. The legislation will provide that the order lapses after eight working days. That is a fundamental bar on the jurisdiction of the court. If the respondent appears within the eight days to contest the order, he can do it there and then. If he wishes further time to meet the case, then the applicant will have to apply for a fresh order. The applicant will have to apply afresh because the Oireachtas is providing in the legislation for the termination of the order after eight days. That is an absolute bar.

The court is deprived of jurisdiction after eight days. It cannot look at the order and say that it was made for eight days but, because the respondent wants and adjournment, it will extend it for a further month. The court has no power to do that because the order lapses after eight working days. In such cases, a fresh application must be made by the applicant. The applicant will have to come into court and seek another eight days. At that stage, the respondent is present in court to meet the claimant.

I am not trying to create difficulties for the Senator. I realise this is a very technical measure and I really appreciate the amendments which have been put down as they have allowed an elucidation of a very complex piece of legislation, short though it may appear.

Ms Terry

I am concerned that the matter could go on and on, as we feared. When an applicant is granted an interim barring order, notice of the application has to be given to the respondent and a date is set for the hearing. The Minister of State has already said the judge will, of course, set the day. The applicant has to serve notice on the respondent as quickly as possible, even though those words are not now in this Bill and I tried earlier to provide for that.

If it takes a few days for the applicant to find the respondent and the case is set down for a Friday, I am concerned that the order may lapse. The applicant would then have to seek another order and a further day would have to be set by the court. That process could go on and on. That is one of the defects in the Bill which I believe my amendment would resolve.

Mr. J. Walsh

The whole thrust of the provision, accepting the Minister of State's comments, is that it automatically dies after the eight day period and, therefore, the applicant would have to return to the court again. Obviously, there will have been a requirement in the interim to notify the respondent and provide a note of the evidence of the affidavit, as well as the other relevant provisions in this regard. I believe that covers the situation fairly satisfactorily. When the matter comes back to the court a second time it will be a new application, but at that stage the respondent may be present, in which event the order may well be challenged. I regard that as a relatively good mechanism for dealing with the matter.

Ms Terry

If the order lapses and there is even one day for which there is no interim barring order, the applicant is at risk from the offending party, the respondent. There should not be any interval whatsoever before another order is made. If an order lapses on a Friday, the applicant cannot go to court until the following Monday. That is a real problem. We cannot allow the applicant to be at risk, especially in a situation where relationships are liable to deteriorate because of the legal proceedings.

Mr. B. Lenihan

So far, in this debate, the amendment was pressed in terms of the effect on the respondent. In dealing with that, I mentioned that the order would lapse but, of course, the order can be confirmed and I wish to emphasise that. Therefore, from the perspective of the respondent, once he or she is in court, he or she is in a position to meet. If the respondent wishes to have an adjournment – I will return to the Senator's point in a moment – that is clearly a factor which the judge will have to examine in the context of a confirmation application by the applicant. However, the Senator has now canvassed a different contingency entirely, namely the impact on the applicant of the fact that the order automatically lapses. That, of course, is the kernel of the legislation.

If the applicant cannot locate the respondent and cannot effect service, the applicant will have to go to court again and seek an order. That is my understanding of the position. With regard to the law of service, the court can always deem service to be good in certain circumstances where the respondent cannot be traced. It is not the case that an applicant would have to return endlessly to court every eight days to obtain an order. However, under this scheme, where an order is about to lapse for one reason or another, the applicant will have to renew his or her application to the court before the operative last day. As Senator Terry has rightly pointed out, if the order lapses on a Friday, it will not be easy to find a district justice on Saturday, particularly one with jurisdiction. The Senator's point is well made but the applicant will have to come to court before the eight day period lapses. That is inescapable, given the purport of the legislation.

Mr. B. Hayes

This discussion goes to the heart of the legislation, as the Minister of State has said. According to section 1(A)(c)(ii), an interim barring order may be made ex parte. It provides that a copy of the order, affidavit or information shall be served on the respondent as soon as practicable. The legislation sets down an eight day timeframe in relation to a barring order but it does not set out the actual period of time in which the respondent is entitled to receive the order, affidavit or information. Was consideration given by the Minister of State and the Department to specifying the length of time within which that information would be sent to the respondent?

Mr. B. Lenihan

No. The phrase "as soon as practicable" was chosen because in matters of service, as in matters of domestic violence, the circumstances vary enormously. To put a rigid time limit on it would be quite inappropriate, having regard to different locations at which potential parties to court actions may reside or carry on their business or be available for service in a transient or permanent way within the jurisdiction at a particular place. It would be quite impossible to specify a fixed period of time. That would be to introduce another cumbersome element to the legislation. As a result of the Supreme Court decision, we are already introducing a cumbersome element by having a fixed period. Whenever one interferes with judicial discretion in this way, one introduces a complexity into legislation. I believe it would make the legislation almost unworkable to introduce a further complexity specifying that the papers must be served on the respondent within three days.

Ms Terry

I wish to refer back to the matter of adjournment. Perhaps the Minister of State will clarify the position in that regard. Is he saying that an adjournment cannot take place while still keeping a barring order alive, accepting the eight day period? Where a hearing takes place within the eight days, has the judge discretion to adjourn the hearing? If a respondent turns up and claims to be unprepared, what approach will the judge take? Will the case be thrown out and where does that leave the applicant? How will a judge decide on somebody's preparedness?

Mr. B. Lenihan

What will happen under this legislation is not unusual. It happens in many court proceedings that an interim order is obtained, such as to restrain a manufacturer from operating a particular manufacturing process because it is a nuisance. There is no strict time limit but the case will normally return within five or six days. The manufacturer may say he is not in a position to meet the case on the day because he has to call a great deal of technical evidence and the court will generally adjourn the matter, but the order continues in force against the manufacturer until he can meet it. Under this Bill, the District or Circuit Court judge will be in the position that the Oireachtas has said the interim order can only endure for an eight day period. Accordingly, the order will be spent unless a fresh order is made at that stage. That is inescapable, having regard to the nature of the legislation.

A respondent seeking an adjournment cannot use his or her right to apply for an adjournment – and to invoke the court's power of adjournment – for the purpose of defeating the intention of the Oireachtas. The effect cannot be to make the section lapse. That is clear. In that situation – and it is not for us to prescribe – I believe the court would look at the circumstances of the case, make some form of inquiry as to the nature of the defence the respondent wished to advance and decide, in that context, how to exercise its discretion in relation to confirmation. For example, the court might decide to confirm the order for a further seven days, after which time the respondent could meet the case.

Ms O'Rourke

On a point of order, a Chathaoirligh, I wish to seek an extension of the sitting because the House made an order earlier to finish with this legislation at 6 o'clock. I suggest that an extra ten minutes be allowed for the debate.

An Cathaoirleach

Is that agreed? Agreed.

Ms Terry

Will the Minister explain whether or not a judge could confirm the order, extending it for another eight days? That would satisfy me. The Minister mentioned that a judge may decide on the day of the hearing to confirm the order for another eight days.

Mr. B. Lenihan

The judge is not extending the interim order, because the respondent is present. Once the respondent is present there is power to make a confirming order. Therefore, in those circumstances the judge can make a confirming order of limited duration so that the respondent has the necessary time to prepare before making the case in court. That power is available within the discretion of the court. The fact that the Oireachtas has now prescribed this definite time limit for the interim order means that judges will take that course of action in the contingency the Senator outlined. Where a respondent seeks time to prepare a case the judge will ask, "How much time do you need? I will confirm the order until we can hear your case, unless you can show good reason now why I should not confirm the order." That is an approach that will be taken.

An Cathaoirleach

Is the amendment being pressed?

Ms Terry

What the Minister has outlined is an improvement which comes closer to my amendment. It is similar to an adjournment.

Mr. J. Walsh

We must allow some discretion to the Judiciary in these circumstances. If the applicant brings the case back to court – which is one of the points about which we were concerned – and the notes of the decision and the affidavits have not been served on the respondent, the judge will inquire into the reasons for that. That affords a certain protection for the respondent. On the other hand, if the expiry period of the notice is approaching and the respondent cannot be found, the applicant can renew the order, through a solicitor, by going back to court before the eight days have expired. If they do so subsequent to the expiry date, they will not be in a worse position than they were when seeking the first interim order because the circumstances are the same. In fact, the circumstances are probably better because if the respondent has respected the eight day barring order, presumably the risk has at least been diminished, if not removed.

We should leave the discretion to the court. If we were to tie the hands of the court we could find that the legislation is less likely to work effectively than it will as currently constructed. Undoubtedly, the way in which it is now constructed relies upon judicial discretion, but I think we can depend on that.

An Cathaoirleach

Is the amendment being pressed?

Ms Terry

Yes, it is. I feel this is something that an individual could contest. I would not be surprised if another Supreme Court decision is handed down saying that the matter is unconstitutional. It restricts both the applicant's and the respondent's ability to protect themselves and to have the protection of the court.

Amendment put and declared lost.

Ms Terry

I move amendment No. 10:

In page 4, line 11, after "ex parte.” to add:

"The provisions of subsection (3)(d) shall apply to interim protection orders obtained ex parte as they apply to interim barring orders obtained ex parte.”.

This amendment seeks to attach the same rights to protection orders obtained ex parte, as apply to interim barring orders obtained ex parte. The amendment would provide more protection for the individual. The Bill is seeking to afford such protection, particularly in light of the recent Supreme Court decision. I am asking the Minister to accept this amendment.

Mr. B. Hayes

I support Senator Terry's amendment. In his contribution on Second Stage, the Minister said that the number of protection orders is in the region of 3,400 to 3,800 a year. That is a substantial increase since the legislation was introduced in 1996. The intention of the amendment is to ensure that the same rules that apply in respect of interim barring orders ex parte would also apply to protection orders in this case.

Mr. B. Lenihan

I fully appreciate the reasons given by the Senators for tabling this amendment. I am prepared to examine the matter in the context of the promised family law legislation. The Supreme Court, however, did not rule that ex parte protection orders were unconstitutional.

The legal advice available to me is that there are sufficient grounds to distinguish the two types of order. The orders are very different in character: one removes a spouse from the family home, while the other order seeks to protect spouses while they remain in the family home. There is a fundamental distinction, therefore, between both orders. A protection order does not bar a person from their residence but instead orders them "not to use or threaten violence against, molest, or put in fear" the applicant.

I do not accept that the rigid scheme which the Supreme Court has now required us to apply to the interim barring order should be extended to the protection order. The protection order has always worked well but the difficulty with it was that it was not strong enough to deter the conduct about which Senators protested earlier in the day.

I am certainly prepared to have the matter examined in the context of the review of family law legislation, but I am not prepared to accept the amendment if it is pressed now.

Ms Terry

I withdraw the amendment in light of the Minister's remarks.

Amendment, by leave, withdrawn.

Section 1, as amended, agreed to.

Section 2 agreed to.

Title agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

I wish to thank Senators for their consideration of the Bill. I appreciate the spirit in which Opposition Members have tabled their amendments but I am constrained by legal advice in this matter. The Bill flowed from a decision of the Supreme Court and we were anxious to ensure that everything complied with the law.

Dr. Henry

I thank the Minister for the clear explanations he provided for all our queries. It is a great help to obtain such clarity in response to the questions we posed.

Ms Terry

I thank the Minister for having spent so much time in the House. It has been a long afternoon for him and his staff. I also wish to thank all Senators who contributed to the debate, which was very interesting.

Mr. J. Walsh

I concur with the comments made by other Senators. I thank the Minister for the manner in which he dealt with the various amendments. The debate was a most interesting one. The Bill arose as the result of a recent Supreme Court ruling and changes, which may or may not have some effect, have been made to the 1996 Act.

It would be prudent to monitor the implementation of the legislation once it has been enacted, so that if any difficulties arise they can be rectified. The Minister has agreed that in such circumstances further amendments can be made, either to this legislation or that dealing with family law.

I thank Opposition Members, in particular, for their co-operation in ensuring the passage of the Bill, which represents a good day's work. As many Members have said, the protection now exists to deal with such incidents over the Christmas season but hopefully they will be few and far between.

Ms Tuffy

I wish to thank the Minister and the Senators who contributed to the debate. I recognise the Government's speedy response to this matter. I welcome the Minister's commitment to review some of the issues raised by the Opposition.

Ms O'Rourke

This issue has been raised many times since the Supreme Court ruling. Senators Terry, Tuffy, Jim Walsh and many others pressed for the introduction of this legislation. I thank the Minister and his officials for bringing it to this House where it has had a good airing. It is an issue which has been constantly brought to the fore during my term as Leader of this House.

Ms Terry

The Leader got to her feet before I could come in a second time. I merely wanted to thank her for pressing this issue with the Minister. Without her intervention this legislation might not have come before us this side of Christmas.

Question put and agreed to.