Domestic Violence Bill 2017: Committee Stage (Resumed)

NEW SECTIONS
Debate resumed on amendment No. 3:
In page 8, between lines 2 and 3, to insert the following:
"5. (1) In determining for the purposes of this Act whether or not to grant a relevant order, the court shall have regard to all of the factors or circumstances that it regards as relevant to the applicant concerned and his or her family.
(2) The factors and circumstances referred to in subsection (1) shall include but is not limited to a list as devised by the Minister.".
- (Senator David Norris)

When the debate adjourned on the previous day the House was debating amendment No. 3 to section 5. Senator Bacik was in possession when progress was reported. She may continue her contribution if she so wishes.

I welcome all those in the Gallery from Safe Ireland, Women's Aid and other organisations which have been of great help to us in the interim. Much has happened since 4 July when the House last debated Committee Stage. I am delighted that discussion on this Stage of this important Bill has resumed. All of us want its passage through the Houses expedited.

I do not propose to spend a long time discussing the amendments given that the House discussed this group, amendments Nos. 3 to 6, inclusive, in the previous debate. I wish to address amendment No. 6, which is in my name. Without going back over our previous discussion, the purpose of the amendment is to provide for a list of criteria or factors which the court would be required to consider in the decision as to whether to grant an order.

The reason we put forward this amendment, and indeed why others put forward similar amendments, was our real concern over inconsistency in the criteria currently used. As long ago as 1999 the Law Society advocated that there should be either detailed statutory guidance or a list of criteria to be considered by the courts in determining whether or not to grant protective orders. The Law Society expressed concern about inconsistency at that point and all of us with any experience of the courts would be conscious of this. Inconsistency, indeed, is tacitly accepted in the Government's own amendment No. 35, which goes some way to addressing the issue in my own amendment by providing for a requirement to give reasons. This provision is also in our own amendment No. 6 but our amendment goes further in providing for the specific criteria.

I will briefly say a bit more on this. Apart from what the Law Society has stated, we also know that there is a very high attrition rate between the number of interim barring orders granted, for example, and the number of actual barring orders. In 2015, for example, 77% of interim barring orders were granted but fewer than 33% of barring orders. Why is this? Again, the Law Society has expressed its concern. It is, they say, impossible for lawyers to advise clients on their current prospects of success. The only guidance here is the Supreme Court decision in O'B v. O'B in 1983, where Mr. Justice O'Higgins set, for the most part, a high threshold for the granting of a barring order and referred to the fact that it must be a case of serious, repetitive and continuing misconduct and not the "ordinary wear and tear of married life". No barring order was granted there. This contrasted with the dissent in that case of Mr. Justice Griffin which set out the detail of a case in which there had been evidence of cruelty and control. That case, then, set the bar very high.

All of us here are delighted to see from the new amendments put forward by the Government last week that there will now be an offence of coercive control. That recognises that this may be an issue and that it may indeed change the nature of the threshold that applicants have to pass so as to get an order from the courts. We maintain, however, that it is important that we have a detailed list of criteria set out in legislation to really guard against the inconsistencies that currently bedevil the system.

I also very much welcome the new amendment No. 47b which sets out the new aggravating factors where an assault offence is committed in an intimate and committed relationship. This is very welcome, and though it does not go quite as far as we would have wanted as compared to the specific domestic violence offence we had looked for, it goes quite a good deal of the way. I wonder if the Minister might agree in principle to look at introducing a list of statutory criteria for the courts. I have made the case strongly and we are all of us very concerned about this. We mean to press this matter because it really is a key principle.

There was considerable debate on this matter the last day. Senator Bacik was in possession and I do not want all of this rehashed again. I call on Senator Clifford-Lee.

I will keep my contribution short.

I do not want to stymie the debate as this is a most important Bill. At the same time, however, I would like to move things on so that progress can be made.

Absolutely. I welcome this amendment and confirm that Fianna Fáil will be supporting Senator Bacik on it.

I would also like to take this opportunity to briefly mention the issue of the legal aid available to victims of domestic violence. There is currently a minimal contribution of €130 for legal aid so I would like the Minister of State to give a commitment that anyone making an application for one of these orders be given a waiver across the board. Where the issue of coercive control arises, victims of domestic abuse do not have access to money and would find €130 very difficult to come by. This is the minimum contribution - it sometimes amounts to more - and this money is very hard to come by for anyone in an abusive situation.

Legal representation is a priority for people like this who are particularly vulnerable. Rather than mention this matter at a later stage, I would like to mention it here. As I said, we will be supporting Senator Bacik on this amendment.

I have spoken at some length on this issue already so I will just leave my arguments on the record as they were. I would like to say, however, that this amendment from Senator Bacik and the Labour Party is very close to my own so I would be happy to withdraw mine and support Senator Bacik's instead. This is a very important amendment, so if it is defeated I can presumably resubmit my amendment on Report Stage.

Is the Senator referring to the amendment he submitted with Senator Kelleher?

What I will now do is allow the Minister of State to come in on this issue and then return to Senator Norris before we take any decision. The Senator can then use his discretion.

Ar aghaidh leat, a Aire Stáit.

I thank the Senators for their contributions here and for all of the work that they have put into this very important legislation. I also thank the other organisations and interested parties who have been helping and debating with everybody on this.

At the last debate on this Bill, we considered the issue of factors to be taken into account by judges when considering applications for domestic violence orders under the Bill. I outlined at that time that extensive consideration had been given to providing for such a list. On foot of the Senators’ amendments and my commitment to this House, officials worked throughout the summer, in consultation with the Office of the Attorney General, to see if a single list of factors could be developed with each item in the list as legally clear as possible. I appreciate the positive motivation for these amendments. Indeed, this positive motivation and the intended outcome became clearer through the detailed legal consideration over the last number of months.

Notwithstanding this painstaking work, the fundamental point remains the same. No list can be exhaustive. The circumstances of some victims will inevitably be missed, therefore, as illustrated in Senator Norris’s very insightful initial remarks on this topic. If a circumstance is taken on board under an all-embracing final clause rather than because it is set out in the legislation, it may open the door for argument by the respondent that it is not actually domestic violence. Closer scrutiny has also highlighted the very real danger that a permissive list may become a mandatory list, either by law through a finding of a higher court, or in practice through the actions of legal advisers for respondents.

My concern is that even the most clear-cut cases, which are fully worthy of an order being granted, may give rise to long, drawn-out and gruelling sessions for the applicant, where questions are raised on up to 18 different grounds. This would be a disaster for the victim and I know it would be a consequence that is entirely unintended by the proposers of these amendments. It is because of these justified and very real concerns of hugely negative unintended consequences for victims, that I am very slow to agree to these amendments.

In order to place my opposition to and worries about these amendments in context, Senators will have noted that, as Senator Bacik has already stated, following commitments to this House and again after extensive work by the Department and the Attorney General’s office, two Government amendments have been tabled on issues where it had previously been indicated that the Government was not minded to accept amendments. These amendments provide for an offence of coercive control and aggravating factors in sentencing where the offender and victim are, or have been, in an intimate and committed relationship. We will discuss these at a later point.

I have some further notes here so I may have to return to them later. I am minded to listen, though I must point out that amendments Nos. 4, 5 and 6 seek to prescribe in the Bill a list of factors that a judge hearing a domestic violence case must consider in reaching a decision in a domestic violence application. Further, the proposed amendments attempt to define violence and psychological violence. The amendments go on to include additional factors that a court must consider when deciding applications for an emergency barring order or a protection order.

The bulk of domestic violence cases are dealt with under the summary jurisdiction of the District Court. In deciding whether to grant a domestic violence order, the court has a wide discretion. The threshold for the granting of an order is that the court is of the opinion that there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires the order. This does not restrict the court in determining what is relevant in deciding a domestic violence application.

There are so many factors that could cause a court to consider that someone is in danger and I do not want to limit the courts' discretion or independence on this. As it stands, an applicant can put forward to the court any factors he or she considers relevant to the application. The judge will consider each case on its merits and make a decision based on all the evidence put forward. The amendments as proposed risk becoming a lawyers’ charter involving arguments on both sides which in itself risks prolonging a case. We return to the difficulty in drawing up an exhaustive list of behaviours that constitute domestic violence. Although I understand the intention behind the proposed amendments, given the complexities and the possible delays that could arise in arriving at a decision and a wish to retain wide discretion for judges hearing these cases, I am again very concerned about accepting these amendments now. I am willing, however, to examine further, as I did earlier, the points made by Senators during the debate. I am also willing to consult again with the Attorney General and with the Parliamentary Counsel on these matters to see what amendments could be proposed for Report Stage. My advice, however, is to be extremely cautious.

We do not want to make things worse for victims. We have to be very cautious on this. I am really keen to work with Senators, as we have shown with other amendments that were discussed earlier and will show with amendments that will be discussed later on. However, I urge caution on this for the reasons I have outlined. I am anxious to hear what the Senators have to say on the points I have made and I am very open to argument on this.

I should have welcomed the Minister of State to the House. He is very welcome back. I thank him and his officials for the engagement we have had on these issues since the last time the matter was discussed here. I think we all very much welcome the two new Government amendments, namely, amendments Nos. 47a and 47b. We recognise that they go a long way to meeting many of the concerns we had raised previously.

To deal with two points the Minister of State raised in respect of amendment No. 6 and why he said he could not accept an amendment that would list a set of criteria, we sought to address that problem of having an exhaustive list which would preclude reference to other factors in our proposed section 5(1)(k) in amendment No. 6 by stating that the court should have regard to "any other matter which appears ... to be relevant to the safety and welfare of the applicant and any dependent person".

Further, I would have thought that our list was a sensible list. It is a list that a court should have regard to in any case. It is not in any way intended to prolong a hearing to the detriment of the applicant, nor do I think it would have that effect. However, it would provide a structured framework within which these applications could be made. This sort of structured framework is currently lacking in the making of these applications. The intention is not to tie the discretion of judges. The discretion remains with the judge. It simply requires the court to have regard to these factors.

Lastly, NGOs working on the front line with victims and survivors of domestic violence have been very supportive of and have been pushing for an amendment such as this one. I understand that their view is that, of the group of amendments, amendment No. 6 would best meet the needs of victims and survivors in the courts.

I also forgot to welcome the Minister of State. However, I am sure we are all very glad we are here and not out canvassing for an election on 19 December.

The Minister of State seems to have two opposing ideas in his mind at the same time. One is that the list is exhaustive and the other that it is too restricted. With regard to the question of it being too restricted, one of the reasons I will be withdrawing my amendment and supporting Senator Bacik's is that she has put in a kind of catch-all provision at the end which includes any other relevant matters. I believe such a phrase cures that situation.

The Minister of State has a very human feeling that witnesses and people in the court could be subject to long and gruelling questioning and cross-examination on the basis of this list. However, I do not think barristers need this list if they are determined to be difficult. We saw that in the McCabe case where all kinds of rubbish was introduced and there was aggressive cross-examination and so on. That is in the gift of the barrister involved. They will not need this list. If they are determined to be troublemakers and go down this avenue, they will go down it and they will produce their own list which may well be more extensive than this one. However, I would say that the majority of barristers would not be like that. They would be decent sensible people. It would probably be pretty unusual for a barrister tendentiously to raise all these issues.

I welcome the Minister of State to the House. His engagement with us and all the organisations with which we are working closely and the genuineness he is bringing to progressing this important legislation is very welcome.

To come back to the issue of consistency, organisations working at the coalface report time and again that cases with similar facts have very different results. This is not a situation that we want to continue, which is why we want to be tight in the definition. It is very hard for judges to see what they do not know or understand, and there has been inconsistency. In 1999, the Law Society in Domestic Violence: A Case for Reform advocated for the introduction of either detailed statutory guidance or a list of criteria to be considered by the courts in determining whether to grant protective orders. The society stated:

There is considerable divergence among District Court judges in the exercise of their discretion ... The provision of detailed statutory criteria to guide judicial discretion is an approach adopted elsewhere in Family Law. The Judicial Separation and Family Law Reform Act, 1989, Family Law Act, 1995 and the Family Law (Divorce) Act 1996 each set down clear and detailed criteria for consideration by the courts in the exercise of discretion under the legislation.

If there was not a problem with consistency, we would not be speaking about it. However, due to the nature of domestic violence, there is a lack of understanding. It is not in these parts where there is great knowledge and understanding, but it is not everywhere. Therefore, at this time we want to ensure that it is known and understood. The amendments in this grouping ensure that domestic violence is clear and understood. The list of factors to be taken into account by the court in deciding whether to make an order under the Domestic Violence Act are very clear and create an absolute understanding. This is about achieving culture change. It is so important. We are not just shifting words but also minds by the words in the legislation.

Of these grouped amendments, amendment No. 6 is the most logical and suitable option. Its subsections (1) and (2) set out an open list of factors. Its subsection (3) then defines "violence", including psychological violence and controlling behaviours. Finally, its subsection (4) requires reasons for decisions to be provided to the parties in writing. While there is a potential conflict with other definitions in the definition of coercive or controlling behaviour, that may be addressed on Report Stage.

There is precedent for such an approach in divorce law. I absolutely recommend the Law Society's submission. It is not just people like me who are coming from a social work background that support this amendment. Lawyers also support it. If the Law Society believes it is possible, I hope the Minister of State will give it careful consideration. We will be pressing this.

I should have mentioned during an earlier contribution that we will be withdrawing amendment No. 4 but are reserving the right to introduce it on a later Stage. We will be supporting amendment No. 6.

I wonder if I might point out that I do have that kind of clause, namely, "any other matter which appears to the court to be relevant".

I would like to withdraw amendment No. 5 also.

I have to go through them each individually. At that stage, I will let in those who want to make such helpful comments. Does the Minister of State wish to come back in?

There is not a whole lot between us on this one at all. My advice is that we have to be cautious as it could risk making things more difficult for victims. However, I have listened carefully to what my learned friends here have said and I respect the wishes of the Seanad. I am prepared to come back on Report Stage with an amendment that I think will probably meet the wishes of the Senators in this regard. I do not want to divide us on this and have a vote, so I am willing to do that. In fact, I think that I can accept the amendment now with the proviso that I may come back with an amendment to it on Report Stage.

I ask Senators in the interim to have another look at the issue and to consider what I said as well. I am not into winning votes or that kind of stuff. I am genuine about the arguments being put forward. It is not a case of having a win over the Senators or the Senators having a win over me. That does not come into it. I ask the Senators to have a good look at the arguments which I have put forward. If they think there is merit in them, they might come back to me. We will accept amendment No. 6, which I figure is the remaining one, and I will have a proposal on Report Stage to improve it. If that is acceptable to Senators, we can discuss it on that Stage.

I thank the Minister of State. That is very helpful. I call Senator Bacik to speak briefly.

That is extremely helpful and I thank the Minister of State on behalf of all my colleagues. We appreciate his engagement, particularly as it is on the floor of the House, which is most unusual and we really welcome it. I am certainly willing to accept the Minister of State's assurance and his support for amendment No. 6. I am happy to work with the Minister of State and his officials on any amendments he feels may strengthen it and make it more effective. I should note that the criteria we listed are borrowed from the Law Society's recommendations. That is where we got the list of what I would regard as sensible criteria. Those criteria also have the catch-all provision that we included at the end.

I am very happy to work with the Minister of State on it and I thank him again for his support for amendment No. 6.

I advise Senators that in each of the groupings from amendments Nos. 3 to 6, inclusive, one technically moves them and then one has the right to withdraw if they wish and can re-enter the amendment on Report Stage. It is only when an amendment is pushed to a vote and it is not accepted that one cannot come back in. We are on amendment No. 3. The question is that a new section be there inserted. I understand that amendment No. 3 has been moved already on the previous occasion.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 8, between lines 2 and 3, to insert the following:

“Factors to be considered under sections 6 to 10

5. (1) On any application for an order under sections 6, 7, 8, 9 or 10, the court shall have regard to the following when deciding whether there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires that such an order be made:

(a) any history of violence by the respondent against the applicant or any dependent;

(b) whether any violence by the respondent against the applicant or any dependent is repetitive or escalating;

(c) whether any psychological violence by the respondent of the applicant constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the applicant by the respondent;

(d) the current status of the relationship between the applicant and the respondent, including any recent separation or intention to separate;

(e) any circumstance of the respondent that may increase the risk of violence by the respondent against the applicant or any dependent, including substance abuse, threats of suicide, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of serious violence including lethal violence, against the applicant and/or others, including violence against family pets or other domestic animals;

(f) the applicant’s perception of risks to his or her own safety and security;

(g) any circumstance that may increase the applicant’s vulnerability or any dependent’s vulnerability to violence from the respondent, including pregnancy, age, family circumstances, health or economic dependence;

(h) the accommodation needs of the applicant and any dependent(s);

(i) any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or any dependent which in the opinion of the court, was caused directly by the behaviour of the respondent;

(j) whether it is appropriate in the circumstances to make any order under section 14,

and

(k) any other matter which appears to the court to be relevant to the safety and welfare of the applicant and any dependents.

(2) With regard to the violence referred to at subsection (1)

(a) a single act by the respondent against the applicant or any dependent, may amount to violence for the purposes of subsection (1),

(b) a number of acts by the respondent against the applicant or any dependent, that form part of a pattern of behaviour may amount to psychological violence for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

(3) In this section—

(a) “violence” includes physical, sexual, psychological or economic violence;

(b) “psychological violence” includes intimidation, harassment, coercion of the applicant or any dependent, or threats, including threats to other persons, pets or property made by the respondent to the applicant or any dependent, unreasonable restrictions on, or prevention of, the applicant’s financial or personal autonomy, stalking or following by the respondent of the applicant or any dependent, intentional damage to property, and in the case of a child dependent, direct or indirect exposure to violence by the respondent against the applicant;

(c) whatever order is made or not made on the application for an order under sections 6, 7, 8, 9, or 10, the reasons for making it or not making it and for making it subject to conditions, if any, should all be recorded by the court and a copy of these reasons should be made available to each party with the minimum of delay.

(4) On application to it for an order under section 8 or 9, the court shall also have regard to the following factors when deciding whether there are reasonable grounds for believing that the safety or welfare of the applicant or a dependent person requires that such an order be made:

(a) any immediate risk of significant harm being caused directly or indirectly by any kind of violence by the respondent against the applicant or any dependent if the order is not made immediately;

(b) whether any previous orders under the Domestic Violence Acts have been made against the respondent with regard to the applicant, and/or others, as far as known;

(c) any criminal proceedings for violence against the respondent, in respect of the applicant and/or others, pending or concluded, as far as known;

(d) any violence by the respondent against the applicant and/or any dependent children, which is recent, repeated, and/or severe, including attempts at lethal violence against either the applicant or any dependent.”.

The Minister of State has been extremely helpful and co-operative in this matter. I am very pleased. I do not think this is just a tactical decision by him. I think he is convinced by the arguments he has heard in Seanad Éireann this evening. This as much as anything else shows the relevance of the Seanad to the legislative process. It is a good day for Seanad Éireann. It is a very important amendment. We have three very similar amendments. The Minister of State has committed himself to accept the amendment and then to tinker with it and refine it is an excellent idea and I compliment him on that.

Senator Norris, not for the first time, overshot the runway slightly. The amendments are linked and once amendment No. 3 has been dealt with because the other amendments are linked to it I cannot allow any more debate. I understand amendment No. 4 has been moved and that it is being withdrawn.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 8, between lines 2 and 3, to insert the following:

“Statutory Guidelines

5. (1) For the purposes of sections 5, 6, 7, 8, 9# and 9 in deciding there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires, the court shall have regard to—

(a) any history of violence by the respondent against the applicant or any dependent;

(b) whether any violence by the respondent against the applicant or any dependent is

repetitive or escalating;

(c) the current status of the relationship between the applicant and the respondent, including any recent separation or intention to separate given the elevated risk of serious and/or lethal violence that is triggered by this action;(d) any circumstance of the respondent that may increase the risk of violence by the respondent against the applicant or any dependent, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of serious violence including lethal violence, against the applicant and/or others;

(e) the applicant’s perception of risks to his or her own safety and security;

(f) any circumstance that may increase the applicant’s vulnerability or any dependent’s vulnerability to violence from the respondent, including pregnancy, age, family circumstances, health or economic dependence;

(g) the accommodation needs of the applicant and any dependent(s);

(h) any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or any dependent which in the opinion of the court, was caused directly by the behaviour of the respondent;(i) whether it is appropriate in the circumstances to make any order under sections 14 to 19; and

(j) any other matter which appears to the Court to be relevant to the safety and welfare of the applicant and any dependents.

(2) For the purposes of sections 7(1)(a) and 8(3) in deciding there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or a dependent person, the court shall also have particular regard to—

(a) risk of serious harm caused directly or indirectly by any kind of violence by the respondent against the applicant or any dependent if the order is not made immediately;

(b) protection order history of the respondent with regard to the applicant, and/or others, as far as known;

(c) any criminal proceedings for violence against the respondent, in respect of the applicant and/or others, pending or concluded, as far as known; and

(d) any violence by the respondent against the applicant and/or any dependent, which is recent, repeated, and/or severe, including attempts at lethal violence against either the applicant or any dependent.

(3) Whatever order is made or not made on the application, the reasons for making it or not making it and for making it subject to conditions, if any, should all be recorded by the Court and a copy of these reasons should be made available to each party with the minimum of delay.”.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 8, between lines 2 and 3, to insert the following:

“Factors to be considered by court in certain applications under this Part

5. (1) Where a court is deciding, on an application for an order under sections 6 to 10, whether there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires that an order be made, the court shall have regard to the following considerations:

(a) any history of violence by the respondent against the applicant or a dependent person;

(b) whether any such violence is repetitive or escalating;

(c) whether any psychological violence by the respondent against the applicant constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the applicant by the respondent;

(d) the current status of the relationship between the applicant and the respondent, including any recent separation or an intention to separate;

(e) any circumstance of the respondent that may increase the risk of violence by the respondent against the applicant or a dependent person, including substance abuse, threat of suicide, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of serious violence against the applicant or others, including violence against family pets or other domestic animals;

(f) the applicant’s perception of the risks to his or her own safety and security;

(g) any circumstance that may increase the applicant’s vulnerability or a dependent person’s vulnerability to violence from the respondent, including pregnancy, age, family circumstances, health or economic dependence;

(h) the accommodation needs of the applicant and any dependent person;

(i) any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or any dependent person which, in the opinion of the court, was caused directly by the behaviour of the respondent;

(j) whether it is appropriate in the circumstances to make one or more orders specified in section 14(2), and

(k) any other matter which appears to the court to be relevant to the safety and welfare of the applicant and any dependent person.

(2) Where an application to which subsection (1) relates is for an order under section 8 or 9, the court shall also have regard to the following considerations:

(a) any immediate risk of significant harm being caused directly or indirectly by any kind of violence by the respondent against the applicant or any dependent if the order is not made immediately;

(b) whether any previous orders, under this Act or an Act repealed by this Act, have been made against the respondent;

(c) any criminal proceedings for violence against the respondent, in respect of the applicant or other persons and whether pending or concluded;

(d) any violence by the respondent against the applicant or any dependent children, which is recent, repeated or severe.

(3) In this section—

(a) “violence” includes physical, sexual or psychological violence;

(b) “psychological violence” includes intimidation, harassment, coercion of the applicant or a dependent person, or threats, including threats against other persons, pets or property made by the respondent to the applicant or a dependent person, unreasonable restrictions on, or prevention of, the applicant’s financial or personal autonomy, stalking or following the applicant or a dependent person, intentional damage to property and, in the case of a dependent child, direct or indirect exposure to violence by the respondent against the applicant;

(c) a single act by the respondent against the applicant or any dependent, may amount to the use of violence;

(d) a number of acts by the respondent against the applicant or a dependent person that form part of a pattern of behaviour may amount to psychological violence, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

(4) On an application for an order under sections 6 to 10, the reasons for the decision of the court shall be recorded by it in writing and shall be communicated to the parties as soon as is reasonably practicable.”.

I am delighted the Minister of State has indicated he will accept the amendment.

Amendment agreed to.
SECTION 5

If amendment No. 7 is agreed then amendment No. 8 cannot be moved. Amendments Nos. 7, 8 and 16 are related. Amendment No. 8 is a physical alternative to amendment No. 7. Amendments Nos. 7, 8 and 16 may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 7:
In page 8, lines 12 and 13, to delete “but lived with the respondent in an intimate and committed relationship” and substitute “but was in an intimate and committed relationship with the respondent”.

The purpose of the Government amendment is to extend eligibility to apply for safety and protection orders to persons who are in intimate and committed relationships but who are not cohabiting. This improvement in protection for victims of domestic violence has been sought by organisations working with victims. The former Tánaiste indicated when the Bill was published and on Second Stage that this amendment would be brought forward on Committee Stage.

As regards amendment No. 8 put forward by Senator Higgins, the Civil Law (Miscellaneous Provisions) Act 2011 introduced access to domestic violence orders to those living together in "intimate and committed relationships", replacing the provision from the original 1996 Act, which referred to those living together as husband and wife. The intention was to cover unmarried persons of the opposite sex and of the same sex, who were living together but had not registered a civil partnership. The wording was taken from the definition of "cohabitant" in section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

Concerns raised by voluntary sector groups about the suitability of the wording were given careful consideration and it was decided to proceed with the amendment unchanged. While I would be cautious about changing the wording at this point, I am willing to look at the wording again, if Senators wish, in advance of Report Stage or if time does not allow for that then when the Bill goes to the Dáil. Perpetrators of domestic violence should not be able to avoid having orders made against them where necessary for the safety or welfare of the applicant by arguing that the existence of a relationship with another person means that the relationship with the applicant was not a committed one and that an order should not be made for that reason. The Department will examine whether a suitable alternative wording can be formulated to address the issue by way of a Report Stage amendment or when the Bill goes to the Dáil if time does not permit it to be addressed in the Seanad.

I note that the Senator proposes to replace the word "committed" with the word "personal". The advantages of the proposed change are not clear. The intended meaning of the word "personal" is not clear. While it is possible for two people to have an intimate relationship of very short duration that is not committed, is it possible to have an intimate relationship which is not personal?

I note that while the Senator is proposing to replace "committed" with "personal" in section 5 for the safety order and in section 8 for the emergency barring order, no amendment has been proposed to the same wording in section 6 for the barring order. For those reasons, I do not propose to accept the Senator's amendments, but I will look at the matter again before Report Stage. I understand Report Stage might be very soon so the Bill might be in the Dáil before we get time to do that.

The amendments are intended to improve the provisions and protections provided in the Bill. I thank the Minister of State and also the former Tánaiste who was present for the first debate on the Bill for her work on it. It is important to recognise that violence happens in relationships where people do not live together. I warmly welcome and will be supporting Government amendment No. 7. I think that is a very important change. Senator Higgins has sponsored amendments Nos. 8 and 16. She had hoped to be here but she is away on official business. She intended to withdraw amendments Nos. 8 and 16 and she hopes to be here for Report Stage to make a point on the matter.

I welcome the amendment. It shows growing sophistication on the part of the Government. Relationships nowadays come in many different varieties and quite a few successful relationships, and some unsuccessful ones, consist of a situation where the parties concerned do not live together. The amendment is a recognition of that and it is a very good thing.

I do not know why people are coy about the word "sexual". It is what lies behind the personal element. I am sure what is meant is that the persons concerned have a sexual relationship without living together.

Amendment agreed to.
Amendment No. 8 not moved.

Amendments Nos. 9, 12, 14, 17, 28, 31, 36 and 41 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 9:
In page 8, line 35, to delete “may” and substitute “shall”.

The purpose of amendments Nos. 9, 12, 14, 17 and 28 is to address concerns about the use of undertakings to determine applications to court for domestic violence orders.

I am aware that SAFE Ireland has suggested that the Bill should make it impossible for an application for an order to be determined by undertakings, which are not orders of the court, in circumstances where the court is satisfied that there is a real risk that domestic violence may occur in the future or where there has not been compliance with previous orders. The concern is that without the protection of a court order, there is no power of arrest, and therefore in practical terms, no real protection for victims of domestic violence. It was suggested that undertakings are often proposed as a means of avoiding legal responsibility.

Having considered the matter in consultation with the Attorney General, I propose to amend each relevant section of the Bill to provide that in all applications for domestic violence orders, where the court is satisfied that the safety or welfare of the applicant or a dependent person so requires, it shall, instead of may, make an order.

The amendments will make it clear that where a court is satisfied that the threshold for making an order has been reached, it must make an order. This would still permit the use of undertakings in appropriate cases where the threshold for an order has not been reached, but the court considers that some form of intervention is necessary. Solemn undertakings can sometimes have a useful role in a case where an order cannot be granted. For those reasons, I do not propose to accept amendment No. 31.

It is important that the right balance be struck in the interest of justice and I believe that my amendment is appropriate and proportionate. In relation to concerns about delaying court proceedings, which are referred to in amendments Nos. 36 and 41, that is not a matter that can be resolved by legislation. It is a matter for the court to manage the cases before it. I believe judges are mindful of the needs of victims and the importance of timely decisions. This is particularly so at District Court level. The court has the power to direct the proceedings before it. I would be wary about limiting judicial discretion and directing judges as to how they run their courts. They are best placed to decide if a respondent is seeking to delay the process and, if so, what action to take.

As regards cross orders, which are referred to in amendment No. 36, I am aware of anecdotal reports of respondents in domestic violence cases filing cross appeals in an effort to confuse the applicant and the court and distract from, and by implication, discredit the application. That is an unpleasant experience for the victim. However, by law, we cannot deny individuals access to the courts. The courts can and do restrict access to repetitious or vexatious litigants and applicants can apply for an Isaac Wunder order if that is the case. It is then a matter for the court to decide the prima facie merits of the case and whether the litigant is to be permitted access to court.

Whether a cross order is granted is also a matter for the courts to weigh and then decide. Domestic violence is complex, as I have said before. We must permit in law for access to orders in the small number of cases of mutual violence. In addition, a statutory bar on cross applications could give rise in a minority of cases to an undesirable "rush to court" situation. A perpetrator of domestic violence might lodge an application to court, when he or she becomes aware that the victim is about to seek an order, to potentially bar or obstruct the victim’s access to the courts. For these reasons, I do not propose to accept these amendments.

I welcome the Government's amendments in this group, which strengthen the language around safety orders. Let us remind ourselves what safety orders are. A safety order is a court order prohibiting a violent person from doing one or more of the following: using or threatening to use violence, molesting or frightening the applicant or a dependent person and watching or besetting a place where the applicant or a dependent person resides. The strengthening of the language from "may" to "shall" is entirely welcome.

I disagree with the Minister of State on amendment No. 36. This amendment encompasses arguments made in amendments Nos. 31 and 41 regarding the hierarchy of court orders and conduct of proceedings. It stops the court from accepting undertakings in cases where violence is being used, where there is a risk of violence and where court orders have been broken in the past. I support my colleagues across the House on amendment No. 36 but I will not support calls to withdraw amendments Nos. 31 and 41.

I support the Minister's amendments in this group, which are hugely important in strengthening the language and changing the practice in court in terms of requiring the making of orders rather than leaving it to the discretion of the court. I wonder if there is any way of drafting amendment No. 36 to meet the concerns the Minister raised about tying the court's hands in procedural matters. It seeks to address a really serious issue where respondents are abusing court procedures to delay or prevent the making of orders that would otherwise be made.

I also welcome the Minister's decision on the use of "shall" instead of "may" but amendment No. 31 proposes that the court should not be able to substitute an undertaking for a court order when there is violence and this is a pretty serious issue as an undertaking is a lesser form of order.

The first part of amendment No. 36 deals with a situation where there may be a tendentious activity on the part of a defendant to use the excuse that they cannot find adequate legal representation but it leaves room for the court to make a decision on this. Then there is the question of whether the respondent has used any form of violence or if there is a risk the respondent may use violence against the applicant or any dependent children. These are serious matters, as is the question of allowing the court to have cross orders established in situations where there has been violence. In each of these related sections of the amendment, it comes back to the crux of violence and the desire to stem violence against vulnerable people and their children.

I think I have made the points pretty strongly and I do not want to delay matters but I will be sticking to my guns on this issue. We have made huge improvements in this area. We cannot deny individuals access to the courts and that is crucial in the context of amendment No. 36. We have to be very careful not to put something in that might scupper the whole Bill. Undertakings can have a useful role where an order cannot be granted and that is why amendment No. 31 is of concern. I am pleased that the Government amendment is being accepted as it will make a big difference.

The court's hands are not completely tied in this matter because in subsection (1) of my amendment it states that the court shall not disallow contact "save where it finds based on the evidence available that there are compelling reasons to do so". The option is left open but it requires compelling reasons. The court, though, can make the decision so its hands are not completely tied.

Amendment agreed to.

Amendments Nos. 10, 13, 15, 18, 29 and 54 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 10:

In page 9, line 5, after “person” to insert the following:

“, save for urgent electronic communications which are strictly necessary for the care and welfare of any dependent children of the applicant and respondent to the extent that and in the form that the court directs”.

These amendments are straightforward. They all address separate elements of the issue of urgent messages regarding children and they all seek to do the same thing. The Labour Party amendment is amendment No. 54 and it proposes what is sought in the other amendments but in a simpler and more straightforward way.

In my amendment, we exempt certain things, "save for urgent electronic communications which are strictly necessary for the care and welfare of any dependent children of the applicant and respondent to the extent that and in the form that the court directs". I think it is helpful.

The amendments in this group relate to communications around children in cases where a respondent has been prohibited from contacting the applicant. A concern has been raised by Barnardos and others that an exception should be made for urgent communication relating to the welfare and care of children. Amendments Nos. 10, 13, 15, 18 and 29 seek to do this but it is done most neatly in amendment No. 54. In this amendment the language is tighter and it inserts a new section addressing the same concern. I support that amendment and ask the Minister to accept it.

The Senators are testing us by putting forward challenging amendments. I thank them for proposing these amendments, which are designed to ensure that essential text messages, emails or other electronic communications about child access or the sharing of child care decisions, which can be helpful in difficult relationships, are not prohibited where a court otherwise orders that there is to be no electronic contact with the applicant on the part of the respondent.

I am pleased to say that section 5 of the Bill already covers the eventuality anticipated by the Senators and a whole range of situations which none of us may have anticipated. Section 5(3) provides that “a safety order may be subject to such exceptions and conditions as the court may specify”. In each of the sections dealing with the five types of order in this Bill, a similar saver already exists. Therefore, the Senators’ amendments regarding urgent electronic communications are not necessary.

I would also be concerned that the amendments could introduce doubt into the application of the broader provisions allowing the courts to specify exceptions and conditions. It is my position that there is no need for these well-intentioned amendments.

I did not hear anything in what the Minister helpfully read out that exempted communication of an urgent nature. I take he is saying it is implicit and that "urgent telephone communication" is in the Bill.

Let me draw the Senator's attention to section 5(3) which states, "A safety order may be subject to such exceptions and conditions as the court may specify". I would argue that what the Senators want to include is encapsulated by that subsection. The wording is very broad and gives the court discretion. It is similar to the point the Senators made earlier. It is a catch-all phrase which the courts may interpret in any way they wish. What that means is that what the Senators are trying to achieve is covered by this very broad subsection (3).

There is no need for the amendments, as the point is covered very neatly by this very broad provision. I ask the Senators to consider withdrawing those amendments as their point is already covered.

I think it is better to be explicit.

Is amendment No. 10 being pressed?

No. I will withdraw it and will possibly re-enter it on Report Stage. I ask the Minister of State to consider carefully what has been said. I accept that it is implicit, as the Minister of State said, but in a busy court, it may not occur to a judge that urgent electronic communications are in the interests of the welfare of a child.

I think amendment No. 54 in the name of Senator Bacik is very clever. It refers to "the care and welfare of a dependent child", but I think it should be dependent child or children, in case there are several children.

I think that can be done.

Yes, that is a simple technical amendment. I will withdraw my amendment No. 10 with the proviso that I can re-enter it on Report Stage. I urge the Minister of State to consider the arguments he has heard this evening.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Section 5, as amended, agreed to.
SECTION 6

Amendment No. 12 has already been discussed with amendment No. 9.

Amendment agreed to.

Government amendment No. 12:
In page 10, to delete lines 19 to 23 and substitute the following:
“(2) (a) Where the court, on application to it, is of the opinion, having taken into account any order made or to be made to which paragraph (a) or (d) of section 14(2) relates, that there are reasonable grounds for believing that the safety or welfare of the applicant or a dependent person so requires, it shall, subject to section 11, by order (in this Act referred to as a “barring order”)—”.

Amendment No. 13 in the names of Senators Norris, Kelleher, Ardagh, Clifford-Lee, Wilson and Horkan has already been discussed with amendment No. 10. Is the amendment being moved?

I move amendment No. 13:

In page 10, line 41, after “person” to insert the following:

“, save for urgent electronic communications which are strictly necessary for the care and welfare of any dependent children of the applicant and respondent to the extent that and in the form that the court directs”.

SECTION 7

Amendment, by leave, withdrawn.
Section 6, as amended, agreed to.

Amendment No. 14 has already been discussed with amendment No. 9.

Government amendment No. 14:
In page 12, lines 18 to 27, to delete all words from and including “(1) Where” in line 18 down to and including line 27 and substitute the following:
“(1) Where the court, on application to it for a barring order or between the making of that application and its determination, is of the opinion, having taken into account any order made or to be made to which paragraph (a) or (d) of section 14(2) relates, that there are reasonable grounds for believing—
(a) there is an immediate risk of significant harm to the applicant or a dependent person, and
(b) the making of a protection order would not be sufficient to protect the applicant or a dependent person, the court shall, subject to section 11, by order (in this Act referred to as an “interim barring order”)—”.
Amendment agreed to.

I move amendment No. 15:

In page 13, line 2, after “person” to insert the following:

“, save for urgent electronic communications which are strictly necessary for the care and welfare of any dependent children of the applicant and respondent to the extent that and in the form that the court directs”.

This amendment will be moved and instantly withdrawn. It is a kind of parliamentary premature ejaculation.

Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
SECTION 8
Amendment No. 16 not moved.

Government amendment No. 17 has already been discussed with Amendment No. 9.

Government amendment No. 17:

In page 15, to delete lines 9 to 15 and substitute the following:

“(3) Where the court, on application to it under subsection (2), is of the opinion, having taken into account any order made or to be made to which paragraph (a) or (d) of section 14(2) relates, that there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or a dependent person if an order

is not made immediately, the court shall, subject to section 11, by order (in this Act referred to as an “emergency barring order”)—”.

Amendment agreed to.

Amendment No. 18 in the names of Senators Norris, Kelleher, Ardagh, Clifford-Lee, Wilson and Horkan has been discussed with amendment No. 10.

I move amendment No. 18:

In page 15, line 28, after “person” to insert the following:

“, save for urgent electronic communications which are strictly necessary for the care and welfare of any dependent children of the applicant and respondent to the extent that and in the form that the court directs”.

Amendment, by leave, withdrawn.

Amendment No. 19 is in the names of Senators Bacik, Humphreys, Nash and Ó Ríordáin. Amendments Nos. 19, 20, 26 and 27 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 19:

In page 16, to delete lines 18 to 20 and substitute the following:

“(11) An application for an emergency barring order—

(a) 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, and

(b) may, where the court is of the opinion that the applicant or a dependent child may be at risk of immediate harm, be made by telephone or electronic means, subject to the applicant’s undertaking to swear a grounding affidavit or information as soon as is reasonably practicable.”

This group of amendments seeks to deal with the same issue, namely, to ensure there is out-of-hours access to the courts for victims and survivors of domestic abuse. It is an issue that has been raised by quite a number of groups and NGOs working with victims of domestic violence. Women's Aid says that a significant gap in the proposed legislation is a lack of measures to provide for immediate protection in an emergency situation when the courts are not sitting. It points out that while gardaí may arrest a perpetrator, he will be usually granted station bail within a few hours and a woman, often with children, in the absence of immediate protection, will have no option often but to leave the family home. Women's Aid has suggested ensuring access through an on-call judge to out-of-hours barring orders service. That is what all of these amendments seek to do.

Amendment No. 19 in my name simply states that an application for an emergency barring order may be made ex parte in certain circumstances and may be made by telephone or electronic means. I am conscious that the other Senators have sought to achieve the same aim in their amendments.

I am happy to withdraw my own amendment in the interests of having consolidated support for one of the other amendments. I hope the Minister of State would see fit to come some way to meeting us on this issue.

A related issue was raised by a practising lawyer, to whom I am grateful, who talks about a real problem with bail. Because of breaches of section 17(1) of the Domestic Violence Act 1986 is a summary only offence, there is no possibility for an objection to bail on grounds that a serious offence may be committed while on bail, because it does not constitute a serious offence. That exacerbates this problem of lack of access to emergency protection, where somebody has a series of convictions under section 17(1), that still will not be grounds for a garda to object to bail or indeed for a judge to refuse bail, because none of the series of offences will be a serious offence in itself. That illustrates the problem for individuals, particularly for those in a situation out of hours seeking emergency protection.

Amendment No. 27 in the names of Senators Black and Ruane seeks to do something similar in respect of out-of-hours emergency barring orders. I became aware yesterday that there are only ten beds available in women's refuges and I raised this on the Order of Business, as the service in Rathmines is closed. The service in Tallaght is struggling. As there is no provision to protect women in their own homes, especially if the they do not have family to whom they can go, and if they cannot flee their home and seek refuge anywhere, to have access to an emergency barring order would ensure that women can remain safe within the refuge of their home and not have to leave the house in the middle of the night because they cannot access a refuge. This is a simple amendment which states, "On request from a Garda attending a domestic violence incident, a Garda of appropriate rank, can authorise communicating with an on-call judge to apply for an out of hours barring order". It is straightforward and simple. Senator Black and I will press this amendment.

I thank the Minister of State for his co-operation on this Bill and the great work that he has done. The Bill will make a significant difference to women in Ireland when it comes to situations of domestic violence. I thank the National Women's Council of Ireland, SAFE Ireland and other NGOs that worked with me and my colleagues in the Civil Engagement group and with Senators across the House to advance this Bill. It has been a co-operative effort and that is politics at its best. We can see that here this evening.

One can see from this grouping of amendments that there is a clear cross-party desire to get a proper system of emergency barring orders in place. I speak in support of the amendment tabled by Senator Ruane and me. In essence we are trying to make it as easy as possible for people to get an emergency barring order when they need it. Throughout the Bill as a whole, we must always remember that we are dealing with vulnerable people in extremely difficult situations. Our job as legislators is to make their access to justice as smooth as possible. This is our goal. Our amendment is similar to amendment No. 26, but the language may be slightly stronger. If passed we would be happy to work with colleagues across the House on strengthening it before Report Stage.

The amendments deal with out-of-hours barring orders. We know that domestic violence can take place at any time in the day or night, weekend or weekday. We also know that access to protections it provides can often be poor. If one is assaulted and then calls 999, one will be told to get a court barring order. If the assault happens at the weekend, one will have to wait until Monday, sometimes later for access to the courts. That kind of waiting can often be fatal. I am reminded of the day we celebrated on Friday. That delay can cause deaths. This is not an inconsequential focus on out-of-hours services. It literally can put people's lives at risk, unnecessarily.

The amendments introduce emergency timebound barring orders from an on-call judge, as happens elsewhere to provide people with immediate protections they need.

The process needs to be simple, accessible and effective. Barnardos has backed the call for an on-call judge to protect children. It knows from its daily work why there is a need for out-of-hours measures to be strengthened.

Amendment No. 20 includes insistence on secure electronic communications when communication with judges out of hours. My colleague's amendment No. 27 has slightly tighter language than amendment No. 26. "Communicating" is better phrasing than "calling". This amendment could be strengthened on Report Stage by substitution of "the rank of Inspector or above" for "of appropriate rank". We ask the Minister of State again to take our ideas and suggestions into consideration. The delays in people getting access to those protections can cost them their lives.

My amendment No. 20 addresses an emergency situation. Offences are repeatedly committed while defendants are out on bail, not only in these cases but in many criminal cases. This is a growing problem in addressing the world of the criminal. My amendment states "an application may be made by telephone or other secure electronic means", and it is important to say secure electronic means. It also makes it "subject to the applicant’s undertaking to swear an affidavit or information" - I put this phrase in which is not in Senator Kelleher's amendment - "before the next available ordinary sitting of the court". It shall not necessarily hold things up to any great degree. Amendment No. 26 also deals with an emergency situation where, for example, there is an incident of domestic violence and a garda is called. The amendment states:

On request from a Garda attending a domestic violence incident, a Garda of appropriate rank, can authorise the calling of an on-call judge to apply for an out of hours barring order. The return date shall be the next sitting day in the nearest available court.

That is intended to ensure there is no delay. I respectfully disagree with my two colleagues. I think my amendment is at least as equally tight and emphatic but there is the fact that I put it down.

I thank the Senators for the debate and for putting forward the amendments. I draw Senators' attention to the emergency barring order provided for in section 8 of the Bill, which I argue is a very innovative provision that allows an applicant with no ownership of a property or a lesser share than the respondent to have the respondent barred from the property for up to eight working days. An emergency barring order may be granted ex parte, meaning that only the applicant is present for the application. The interests of justice demand that the court has the opportunity to assess the demeanour of the applicant face to face. Allowing an email or phone application would not be appropriate or proportionate given the seriousness of the consequences for the person barred from his or her property. Allowing applications to be made by telephone or email, where it would be difficult to verify the identity of the applicant, could give rise to malicious applications by third parties.

In cases where there is an immediate risk of harm, I understand that urgent applications for domestic violence orders are dealt with as a priority by the Courts Service. The Courts Service has advised me that, in most cases, applicants for domestic violence orders are willing to wait until the next court sitting. In exceptional circumstances, a judge can be accessed out of hours through An Garda Síochána. There are two distinct situations in which applications are heard outside normal court hours. In the first situation, the application is made where the court office is open but the court itself has risen for the day or is not sitting on that day. There is not always a court sitting each day in each district outside of larger cities. In these cases, the applicant is asked whether he or she believes it would be safe to wait a day or two until a court sitting is available. It is reported as rare that the applicant cannot safely wait until the next day. In some extreme cases, it may be apparent that a delay could put the applicant or dependent children in grave danger. In these cases, the clerk of the court will contact the judge assigned for the district, or another judge if the first is unavailable, and explain the gravity of the application. The judge will decide whether it warrants a special sitting. The Courts Service has reported that it has no record of a judge refusing to sit when requested.

The Courts Service of Ireland records data on out-of-hours sittings in criminal proceedings but no data are yet available on the civil proceedings for a protection order or an interim barring order at special sittings. These are the orders that would be sought under this Bill with regard to immediate danger. I have more notes on this but I believe I have made a substantive point. I am told there have been a handful of occasions where An Garda Síochána has made known to an on-call clerk a potential domestic violence application and on one occasion, a solicitor contacted the clerk directly. In these cases special sittings were arranged. There is provision and practice already to deal with the Senators' concerns. Requests received outside office hours are much rarer as members of the public cannot contact a court clerk directly. However, in every district, there is a clerk on call to take requests for special sittings from An Garda Síochána, almost invariably for criminal matters.

I thank the Minister of State for his reply. I think out-of-hours calls are rare because they do not happen and there is nobody at the other end of the phone to take a call. Time is of the essence when somebody is seeking an emergency barring order. Even waiting until the next morning or until Monday is unacceptable. Even in the most extreme cases where it could cost lives, if this is the first time that a woman reaches out for help and it is 2 a.m, 3 a.m. or 4 a.m., when she has never done so before, it only takes a day or two of waiting for court proceedings for a person to manipulate and coerce that woman away from what she would have done in that moment at 3 a.m. or 4 a.m. when her life was at threat. Even waiting for the next day or for a judge to decide whether there should be an extra sitting is not good enough or strong enough. This amendment provides that a garda of appropriate rank may authorise the calling of an on-call judge. It is about that communication and not having to wait to make that application or for a court proceeding. Emergencies have to be addressed when they happen and not two days later. It cannot ever be put on hold. The section of the Bill to which the Minister of State refers does not cover emergency out-of-hours barring orders. The crucial part of this is the out-of-hours provision.

The Minister of State has made a comprehensive, interesting and helpful reply but at the same time I do not really think he has grasped the nettle of the immediacy of the situation. What we are contemplating here is not a situation that can wait for a few hours, a day or whatever period it is. It is a situation where violence is imminently present and a person, usually but not always a woman, has to be protected. The other matter is that of bogus calls. That is why I put down "secure electronic communication". I assume it is not beyond the wit of members of the Garda to identify themselves in a way that a bogus caller would be unable to do. While I can imagine a situation where somebody might make bogus calls if he or she wanted to be a nuisance and pester and harass somebody, I believe members of the Garda would be able to identify themselves as such. Perhaps we could recommend that the Garda gives consideration to a situation where its members can identify themselves as being particular gardaí. The question of bogus calls is not an insurmountable problem. They can be dealt with in the rare instances that they occur.

I listened carefully to the Minister of State's point about the out-of-hours service. It points to an issue at the heart of the difficulty with our law on domestic violence, which is that it operates at the intersection of criminal and civil law. Having practised criminal law, I am familiar with the on-call judge system which operates for criminal cases but, as we discussed on the last occasion, a problem with the current enforcement of domestic violence is that very little is prosecuted under the Non-Fatal Offences Against the Person Act or under criminal law relating to assault.

The 2014 Garda Inspectorate report, which was critical of the policing of domestic violence generally, raised concerns about high numbers of call-outs but low numbers of arrests. Therefore, it seems that gardaí are leaving it up to victims. I do not want to denigrate gardaí, who are doing difficult and important work in policing domestic violence, but a practice has arisen in the criminal justice system where it is effectively up to victims to be prosecutors by taking actions through the civil courts for barring and safety orders when criminal proceedings could actually be brought. It is not embedded in practice in civil applications to use an emergency or out-of-hours service. Whether that takes a legislative provision of the sort that we are tabling or there is another way of doing it, there needs to be a clear route of access for victims to get emergency protection during non-court sitting hours.

The scale of the need for access to emergency barring orders out of hours is much greater than has been described. For the reasons that Senator Bacik outlined, the burden sits with the victim, who may or may not decide to pursue an order or may come under duress in the intervening period. From Friday night to Monday morning is a long time for someone who is being persuaded by another person of whom he or she is afraid.

When there is no such thing as out-of-hours provision, of course the level of activation of out-of-hours services will be lower because it does not exist save for in exceptional circumstances. I would be happy to work with the organisations in order to provide the Minister of State with evidence of the scale of the issue. For the reasons cited by my colleagues, it is greater than he has described.

There are two issues, the first of which is communication by telephone or electronic means. I have dealt with that, as it is important that someone be available in person. The second issue has to do with delays in emergency or extreme cases where an applicant or children could be in grave danger. Court clerks are on call and can call the judge assigned and explain the gravity of the application. The judge will decide whether a special sitting is warranted. I am told that the Courts Service has reported that it has no record of a judge refusing to sit when requested. This is what I am advised is happening in practice.

Usually, domestic violence applications are heard in the District Court area where the applicant resides, but an emergency application can be heard anywhere in the district. When construed together, the Domestic Violence Acts and the relevant provisions of the District Court rules provide that, if a judge of the district is not available, another judge can hear the matter, but the hearing must still take place in the district.

Requests outside of office hours are rare, as members of the public cannot contact a court clerk directly. However, there is a clerk on call in every district to take requests for special sittings from An Garda Síochána, which is called for by the two amendments. I am told that there have been a handful of occasions in which the Garda has made known to an on-call clerk that there was a potential domestic violence application. On one occasion, a solicitor contacted the clerk directly. In all of those cases, special sittings were arranged.

Perhaps we need to beef up the knowledge out there of the availability of this approach.

There does not seem to be a need for amendments Nos. 26 and 27, given that what they are calling for is already possible according to my information. However, perhaps the practice needs to be made known and improved.

Regarding the amendments on someone being present in court in person, that is important so as to verify the identity of the applicant. The issue of malicious applications by third parties was mentioned. Urgent applications for domestic violence orders are dealt with as a priority by the Courts Service, which views them as very important. In most cases, people are willing to wait until the next court sitting. In exceptional circumstances, the judge can be accessed out of hours through the Garda, which is what the Senators are requesting in their amendments. This is the advice that I have received.

Is the amendment being pressed?

I will withdraw it, but I reserve the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 16, line 20, after “justice” to insert the following:

“and where necessary out of hours where the applicant and any dependent children are at risk of immediate harm if the order is not made in this way, such an application may be made by telephone or other secure electronic means, subject to the applicant’s undertaking to swear an affidavit or information before the next available ordinary sitting of the court”.

Is the amendment being pressed?

I will withdraw it, but I reserve the right to re-enter it on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 21 to 25, inclusive, are related. Amendments Nos. 21 to 23, inclusive, are physical alternatives and amendment No. 25 is a physical alternative to amendment No. 24. Amendments Nos. 21 to 25, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 21:

In page 16, line 37, to delete “8 working” and substitute “28 working”.

This is just a simple amendment. It seems to us that the question of eight days for an emergency barring order is not enough. I suggest that this be extended from eight working days to 28 working days. In violent situations, we need to give a sufficient amount of time for the applicant to get resources together and determine where to go from there. Eight days does not seem sufficient to allow the applicant to consider the situation appropriately.

The amendments in this group seek to achieve the same aim, which is to allow emergency barring orders to have a somewhat increased length. Amendment No. 23 in my name would extend the length of time that an emergency barring order could last from eight working days, which is less than two weeks, to 20 working days, which is effectively four weeks. We view this as a reasonable extension that does not go too far. It would provide sufficient protection for the applicant. The period of eight days is too short. I ask the Minister of State to consider at least one of these amendments.

These amendments deal with the length of emergency barring orders. It is important that such orders be of sufficient length to provide the protection required. We need to keep people safe for as long as possible, particularly where children are involved, as they require consistency and security. No child should be made homeless when escaping domestic abuse. Extending the length of emergency barring orders is in the best interests of the child. Ideally, I would like to see orders being extended to six months, but I understand that this is a complex matter and there are constitutional issues involved, in that such an extension would infringe on other rights. We must strike a balance between eight days, which is a very short period, to as long as possible. Amendments Nos. 21 to 25, inclusive, suggest various lengths. I will support amendment No. 23, which seeks to change the period to at least 20 days, but I would like the period to be longer, in particular because children are being placed in a difficult situation due to the insecurity of a barring order of only eight days.

I thank the Senators for their work and consideration on this matter. The introduction of the emergency barring order provided for in section 8 of the Bill is an innovative provision that allows an applicant with no ownership of property or a lesser share than the respondent to have the respondent barred from that person's property for up to eight working days. We have given careful and serious consideration to the maximum duration of an emergency barring order.

It was considered that eight working days, which could amount to 13 lapsed days if granted on the eve of a bank holiday weekend, is appropriate or proportionate in this context. An emergency barring order may be granted ex parte, meaning that only the applicant is present for the application.

The intention of the emergency barring order is to facilitate those who are not eligible to apply for a barring order or an interim barring order to make arrangements to clear their possessions out of a property and make some interim arrangements for alternative emergency accommodation. I am of the view that given the emergency nature of the order and its consequences for the respondent, to allow it to be renewed for a total period of up to six months would be disproportionate and may give rise to constitutional difficulties, especially if such renewal was permitted on an ex parte basis. For these reasons, I am uncomfortable with these amendments and I propose not to accept them at this stage.

However, I am willing to consider the matter further, maybe before the Dáil Stage. I am not sure if we have time on Committee Stage to do it but I will consider it further in consultation with the Attorney General to ensure that the duration of an emergency barring order specified in the Bill will enable appropriate protection for applicants without unjust or disproportionate consequences for respondents.

I am looking at bringing forward amendments to this if possible and proportionate. Senators may be aware that the duration of an interim barring order granted ex parte under the Domestic Violence Act 1996 was limited to eight working days by the Domestic Violence (Amendment) Act 2002. This arose from the Supreme Court decision in the case of D. K. v. Judge Crowley, where the Supreme Court held that constitutional justice requires the setting of a limit of relatively short duration on an interim barring order granted ex parte. There is already constitutional case law around this. Senator Kelleher is actually right in her concerns about this.

It is considered that eight working days, which on the eve of a bank holiday weekend could be as long as 13 days elapsed time, is a reasonable duration for an emergency barring order. Given that the grant of an emergency barring order will have serious implications for the respondent, it was considered prudent to provide that the duration of the emergency barring order will be consistent with an interim barring order granted ex parte. It is understood that the courts and legal practitioners appear to be at ease with this eight day provision. We just have to be careful here.

I neglected to refer to my other amendment, No. 24, which provides for an extension or renewal of an emergency barring order in circumstances where the court deems it to be necessary to protect the safety and welfare of the applicant and the child or children. I am not sure whether this would fail a constitutional test because it is a renewal. It is not extending the initial order. It is just renewing the order. I suppose it is a moot point but it probably would have to be examined and dealt with in court. It does seem to me that this is a good idea because it indicates a situation where there is a transition from the first situation which is an emergency situation. The court can then consider whether it is wise to extend or renew this situation.

Does the Minister wish to add anything?

Let us look at what we are doing here. We are actually saying that an owner of a property can be barred for up to eight working days or maybe 13 working days by using this innovative emergency barring order. This is very new. It is innovative. The advice I have is that eight working days is something one could work with. If we go beyond that we are talking about property rights. A constitutional challenge is not just a theoretical consideration. If successful, a constitutional challenge could negate the anticipated benefits of the innovative provision of an emergency barring order. We could lose the whole lot if we go too far.

What I would like to do here is to provide for the eight days. Let us see how it works in practice. It is very innovative and new. Senator Norris's argument about it being renewed in fact is the same, it is an extension. It is another way of saying up to six months in total. Let us tread carefully. This would give people an opportunity to move their possessions out of a property. In other challenges we have seen property rights reign supreme. We have got to be very careful. Let us put in the eight days which could be 13 days. That would allow somebody them to move their possessions out and get some breathing space. I would be very slow to accept this amendment. I am prepared to-----

Sorry, I just want to finish my train of thought. I am prepared to look at it again if possible and appropriate. However, I think we are really pushing the boundaries here. I do not want to run the risk of losing the whole thing through a constitutional challenge. There is too much to lose.

I accept that it is innovative so it is new. I accept that there has been a threshold set around the eight day limit. However, I am really concerned about the best interests of children in this situation and urge the Minister to be willing to look at the interface between the balancing of rights. There is the balancing of constitutional rights but there is also the balancing of the rights of children to be safe and secure; there is a need for consistency for them. The amendment I am supporting is amendment No. 23 because that is the best of the pick here. It will be up to my colleague Senator Bacik whether she presses it tonight or withdraws and resubmits it. It is that whole interface with children, and the general issue of children in those situations, that I want the Minister to particularly take some stock of.

I think eight days would be appropriate. I presume if it is a situation where the court becomes aware that it needs to be extended then appropriate application could be made.

There is no provision for that.

Eights days in fact is something that I think would be appropriate in an initial application like this because it would be very dangerous to suddenly grant a period longer than eight days. I agree with the Minister. It would be open to challenge in the higher court.

I have listened to all of the Minister's points and I am looking very carefully at section 8. Clearly it is very welcome to see this provision in place. I see that section 8, subsection (16) specifically states that no further emergency barring orders shall be made against the respondent on behalf of the same applicant until a month has elapsed after the last day of the period of eight working days. However, there is a proviso there that a further emergency barring order may be made within the one month period where there are exceptional circumstances. I am happy to withdraw my amendment No. 23 and to work with Senator Kelleher and others to see whether we can strengthen that provision. I can see there is within that some scope for taking account of the best interests of the children which is the real concern as Senator Kelleher has expressed. A lapse too soon of an emergency barring order might leave children exposed to danger. I see there is a provision in subsection 16(b), I think, if I am reading it right, for a further emergency barring order to be made within one month of the expiry of the eight days. That does give some room for manoeuvre. It does go some way to addressing the concerns we have all expressed in putting forward this group of amendments. I am happy to withdraw my own amendment No. 23 at this stage and to look again at whether that meets the concerns we have or whether it needs further amendment.

Is Senator Norris pressing the amendment?

Sorry, I wanted to make a contribution.

The Senator is quite welcome to do so.

On Senator Burke's intervention, I do not believe that there is any provision in the law to make an application for a renewal. If the Minister wants to respond immediately to this I would be happy to hear him.

Section 8, subsection 16(b), as Senator Bacik has said, states a further emergency barring order may be made against a respondent within the one month period referred to in paragraph (a) where the court is satisfied, having due regard to the circumstances of the respondent, there are exceptional circumstances which justify the making of a further order.

The Minister is very helpful. Can I just point out that among the three amendments dealing with extending the eight working days that there is one for 20, one for 38, which is less than three weeks and not four, and then there is one for 28?

The figure of 28 is the median, so I would recommend that to the Minister of State. I did not quite follow when the Minister of State was making his contribution. When he says that the eight days provide the opportunity to move property out of the house, which party does he mean is moving property out of the house? Is it the house owner or the person who applies for the barring order?

It is obviously the person who applies for the barring order.

Amendment, by leave, withdrawn.
Amendment No. 22 not moved.

I move amendment No. 23:

In page 16, line 37, to delete “8 working” and substitute “20 working”.

I reserve the right to move this amendment on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 24:

In page 17, to delete lines 1 to 9 and substitute the following:

“(16) (a) Where an emergency barring order has been made against the respondent, such order shall be capable of being renewed for a further period or periods, not exceeding six months in total.

(b) On an application for an order under this subsection, the court shall consider whether such an order is necessary to preserve the safety and welfare of the applicant and any dependent children in accordance with the list of factors set out in section 5(1).”.

Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Section 8, as amended, agreed to.
NEW SECTIONS

I move amendment No. 26:

In page 17, between lines 9 and 10, to insert the following:

“9. On request from a Garda attending a domestic violence incident, a Garda of appropriate rank, can authorise the calling of an on-call judge to apply for an out of hours barring order. The return date shall be the next sitting day in the nearest available court.”.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 17, between lines 9 and 10, to insert the following:

“Out of hours barring orders

9. On request from a Garda attending a domestic violence incident, a Garda of appropriate rank, can authorize communicating with an on-call judge to apply for an out of hours barring order.”.

Amendment put:
The Committee divided: Tá, 20; Níl, 12.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Gavan, Paul.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • Murnane O'Connor, Jennifer.
  • Norris, David.
  • Ó Céidigh, Pádraig.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ruane, Lynn.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Frances Black and Lynn Ruane; Níl, Senators Michelle Mulherin and John O'Mahony.
Amendment declared carried.
SECTION 9
Government amendment No. 28:
In page 17, line 14, to delete “may” and substitute “shall”.
Amendment agreed to.

I move amendment No. 29:

In page 17, line 23, after “person” to insert the following:

“, save for urgent electronic communications which are strictly necessary for the care and welfare of any dependent children of the applicant and respondent to the extent that and in the form that the court directs”.

Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
NEW SECTIONS

Amendment No. 30 has been ruled out of order because of a potential charge on the Exchequer.

Amendment No. 30 not moved.

I move amendment No. 31:

In page 18, between lines 24 and 25, to insert the following:

“10. Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires the making of a relevant order, the court cannot substitute an undertaking or a court order.”.

Amendment, by leave, withdrawn.
SECTION 10
Question proposed: "That section 10 stand part of the Bill."

I of course accept the ruling of the Cathaoirleach that amendment No. 30 has been ruled out of order, but it shows the lamentable impact of this nonsensical ruling that the Seanad cannot provide for a charge on the Exchequer. It is utter nonsense. I had hoped the Minister of State would accept the amendment.

Amendment No. 31 has been withdrawn.

I ask the Minister of State to consider introducing such an amendment.

Without this what one does is leave the children hanging. There is no provision for them at all. It is worse than useless. It is a typical Irish situation where one grants a barring order but there is no provision for the welfare of the children whatever and they are then just left hanging. The amendment wanted to ensure that, "the court consider the safety and well-being of any children and take measures." Therefore, the court would then have to ensure the welfare of any such children.

The amendment continued, "Provide for the availability of experts to the courts", which is the provision that creates the expense. The amendment further continued, "to assess the risk the perpetrator poses to children and the impact on them of direct and/or indirect abuse". Again, the provision is very important.

The last part of the amendment states, "Establish a national system of Child Contact Centres to facilitate post-separation contact for children of victims of domestic abuse that ensures and protects their physical and psychological well-being". I think that is what we all would like to see. I am very sorry that the amendment has been ruled out of order. It shows the regrettable impact.

I do understand that the Committee on Procedure and Privileges is considering this matter.

I hope that it will. I had been told that there was a constitutional bar on this but I do not think there is. I think it is in our Standing Orders.

There are some constitutional issues, Senator Norris. In terms of the CPP, the matter has been discussed but not finalised. It is still a live issue with the CPP.

Good. I suggest, very respectfully, that in the discussions the Cathaoirleach might use this example an another example of where this unnecessarily limits Seanad Éireann.

This matter has been ruled out of order. We cannot blame the Minister of State for that.

No, of course. Absolutely not.

Question put and agreed to.
Sections 11 to 13, inclusive, agreed to.
SECTION 14

Amendment No. 32 is in the names of Senators Norris and Kelleher. Amendments Nos. 32, 33, 33a, 34 and 48 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 32:

In page 21, between lines 21 and 22, to insert the following:

“(3) A respondent with a history of domestic violence against the applicant shall be prohibited from cross examining the applicant during family court proceedings.”.

I wish to withdraw my amendment because I am very happy with ministerial amendment No. 34. It is an excellent amendment. It addresses the situation and deals with it adequately.

Technically, it is an unusual conundrum because the Senators must move and withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 33 is in the name of Senator Alice-Mary Higgins. The amendment has already been discussed with amendment No. 32.

She is not here.

Amendment No. 33 not moved.

On the first additional list of amendments, dated 3 July 2017, amendment No. 33a is in names of Senators Conway-Walsh and Ó Donnghaile. The amendment has already been discussed with amendment No. 32. Does Senator Ó Donnghaile wish to formally move the amendment?

I move amendment No. 33a:

In page 21, between lines 21 and 22, to insert the following:

“(3) Upon request of the applicant, a court may prohibit the respondent from cross-examining the applicant during relevant court proceedings, or in the absence of a request the court may prohibit the respondent from cross-examining the applicant where the respondent has a history of domestic violence.”.

I shall withdraw the amendment.

Amendment, by leave, withdrawn.
Section 14 agreed to.
NEW SECTIONS

Amendment No. 34 has already been discussed with amendment No. 32 and, therefore, we cannot have any further discussion on it.

Government amendment No. 34:

In page 21, between lines 21 and 22, to insert the following:

“Protection against cross-examination by applicant or respondent

15. (1) Where—

(a) an application is made to a court for a specified order,

(b) a person under the age of 18 years is to give evidence, and

(c) the applicant or respondent proposes to cross-examine the person referred to in paragraph (b) personally,

the court shall direct that the applicant or the respondent, as the case may be, may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the applicant or respondent to conduct the cross-examination personally.

(2) Where—

(a) an application is made to a court for a specified order,

(b) a person who has attained the age of 18 years (being the applicant for the specified order, an aggrieved person under section 10, a dependent person or the respondent to that application) is to give evidence, and

(c) the applicant or respondent proposes to cross-examine the person referred to in paragraph (b) personally,

the court may direct that the applicant or the respondent, as the case may be, may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the applicant or respondent to conduct the cross-examination personally.

(3) Where an applicant or respondent, as the case may be, is prevented from cross-examining a witness by virtue of subsection (1) or (2), the court shall—

(a) invite the applicant or respondent to arrange for a legal representative to act for him or her for the purpose of cross-examining the witness, and

(b) require the applicant or respondent to notify the court, by the end of such period as it may specify, as to whether a legal representative is to act for him or her for that purpose.

(4) If by the end of the period referred to in subsection (3)(b), the applicant or respondent has notified the court that no legal representative is to act for him or her for the purpose of cross-examining the witness or no notification has been received by the court and it appears to the court that no legal representative is to so act, the court shall consider whether it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to act for the applicant or respondent for that purpose.

(5) If the court decides under subsection (4) that it is necessary, in the interests of justice, for the witness to be cross-examined by a legal representative appointed to act for the applicant or respondent for that purpose, the court shall appoint a legal representative (chosen by the court) to cross-examine the witness on behalf of the applicant or respondent.”.

Amendment agreed to.
Government amendment No. 35:
In page 21, between lines 21 and 22, to insert the following:
“Requirement to give reasons for certain decisions
16. Where an application is made to a court for a specified order, the court shall give reasons for its decision—
(a) to grant or refuse the application,
(b) if applicable, to make the specified order subject to exceptions or conditions, and
(c) to vary the exceptions or conditions referred to in paragraph (b).”.
The purpose of this amendment is to provide for a statutory requirement for courts to give reasons for decisions relating to applications for orders under the Bill.
SAFE Ireland recommended that the reasons for making or not making an order under the Domestic Violence Bill and for making it subject to conditions, if any, should all be recorded by the court and a copy of these reasons should be made available to each party with the minimum of delay.
This amendment proposes to insert a new section into the Bill to require courts to give reasons for decisions to grant or refuse applications for orders, including reasons for a decision relating to exceptions or conditions to which an order is subject.
The question of whether the District Court should be required to give written reasons for decisions was considered earlier this year in the course of debates on the Criminal Justice Act 2017. Section 9 of the Act has introduced a requirement for courts to give reasons for bail decisions, but does not require written reasons for bail decisions. This is because written decisions are not the norm in the District Court and the volume of work involved in implementing a requirement for written reasons could be considerable. It would have cost implications and, more importantly, could entail delays in the processing of cases before the court. As all District Court proceedings are recorded on the digital audio recording system, in circumstances where clarification of the reasons given is required or is in dispute, there will be a record of the proceedings.
For the same reasons, I would not favour requiring written reasons for decisions relating to applications for orders under the Domestic Violence Bill.

Before I call Senator Kelleher to comment I wish to explain the following to Senators. In some instances, if there is something that they do not wish to move, it is better to not move it. If one moves and withdraws an amendment, technically, the withdrawal could be objected to.

I wish to make a point of information.

Yes, of course but not on this issue. Please go ahead. We have reached amendment No. 35.

I continue to be educated by the Cathaoirleach.

It is no bother.

I thank the Cathaoirleach. We understand that as the Minister of State has accepted amendment No. 6 that there is a conflict with amendment No. 35. We understand that we must ask him to withdraw it or oppose it.

To clarify, I think the amendments are not linked. Amendment No. 6 is not connected but it might be similar. Does the Minister of State wish to comment on amendment No. 35?

We said that we accepted amendment No. 6 because we would bring forward our own amendment too.

The Minister of State indicated that he would bring forward an amendment on Report Stage.

He indicated that he might improve it on Report Stage.

Yes. Amendment No. 35 mentions reasons but not written reasons. Amendment No. 35 also states:

(a) to grant or refuse the application,

(b) if applicable, to make the specified order subject to exceptions or conditions, and

(c) to vary the exceptions or conditions referred to in paragraph (b).”.

We will look again at the area around amendment No. 6 and will try to improve that. I probably should have asked Senators to withdraw the amendment. However, I felt at the time that we would accept it with a view to amending it and that is what I suggest that we would do. I am prepared to bring forward an amendment to amendment No. 6. Amendment No. 35 is a different amendment and I have not looked at any conflict.

Our understanding is that there is. Again, I only point that out as a point of information.

This is a Government amendment so we must make a decision. The amendment has been discussed and I moved it, as Cathaoirleach. Is that agreed? Agreed.

Amendment agreed to.

Amendment No. 36 is in the names of Senator Norris and others. The amendment proposes to insert a new section and it has already been discussed with amendment No. 9. Does Senator Norris wish to not move amendment No. 36? Does he wish to move and withdraw the amendment?

I cannot move it and resubmit at Report Stage.

Technically, if one moves and withdraws an amendment then the withdrawal can be challenged. That is the difficulty. If one does not move an amendment it gives one the option.

A withdrawal is never challenged.

A withdrawal has been challenged, apparently.

I never heard that.

And voted on in the Seanad. Is the amendment not moved?

Yes. Can I still re-enter it?

Amendment No. 36 not moved.
SECTION 15

Amendment No. 37 is in the names of Senators Norris and Kelleher. I ask Members to please note that if amendment No. 37 is agreed to then amendment No. 38 cannot be moved.

Sorry, did the Cathaoirleach say that the Minister of State has agreed to amendment No. 37?

One second. I shall complete my instructions. Amendments Nos. 37 to 39, inclusive, are related. Amendment No. 38 is a physical alternative to amendment No. 37. Amendments Nos. 37 to 39, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 37:

In page 21, to delete lines 25 to 28 and substitute the following:

“(2) Oral communication to the respondent by a Garda, on behalf of the applicant of the fact that a relevant order has been made, together with production of a copy of the barring order, interim barring order or emergency barring order, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification to the respondent of the making of the order. The views of the applicant for a safety or protection order shall be sought by the Gardaí, when deciding whether the Gardaí, should or not serve the relevant orders.”.

It is proposed that we take amendments Nos. 37 to 39, inclusive, together.

The court is required to ensure, as soon as practicable, after making an order under the Bill that a copy of the order is given or sent to the applicant and the respondent. This is provided for in section 16 of the Bill.

The District Court rules, Order 59, Rule 10, states that copies of domestic violence orders shall be sent to the applicant and respondent by ordinary pre-paid post. In most cases, service by post ensures that the applicant does not have to have contact with the respondent.

It should also be borne in mind that the orders provided for in this Bill are civil orders. As such, An Garda Síochána is not normally involved in serving these orders. I do not propose at present to depart from this long-standing situation.

I might come back with a further comment later.

Is the amendment being pressed?

No. Again, it does seem to me that when we have a situation of an order being granted there may well be situations in which it is in the interest of the person seeking the order to do something. For example, if the person to whom the order is sent claims not to have received it and so on, it could be made sure of by a garda actually producing the order, waving it and telling him, and it is usually a him, that this order has been granted.

The amendment includes the qualifying clause, "The views of the applicant for a safety or protection order shall be sought by the Gardaí, when deciding whether the Gardaí, should or not serve the relevant orders".

It seems to me that it adds in quite a substantial point. It allows the situation to be dealt with much more effectively, in that a garda can go up to the offending party, produce the order, show it to him or her and say that he or she is now barred.

The amendments, as the Minister of State said, deal with the cases where orders should be served personally by members of the Garda. There are cases where a person might try to evade the service of an order and create a delay. There is a role for a member of the Garda to personally serve the order. In this group, I will be supporting amendment No. 39. This amendment clearly states the circumstances in which a judge may order that if a respondent is likely to evade receiving service of a domestic violence order, the order may be served by a member of the Garda. It is for cases where a person may seek to evade it, that is, exceptional circumstances, and it gives the judge the scope to allow that.

Evasion of service is not uncommon, as Senator Colm Burke will know. Does the Minister of State wish to respond?

As I have said, it is not the intention at this point to depart from the long-standing position whereby members of An Garda Síochána do not generally serve civil orders. That is a long-standing tradition and that is the position we are taking on this.

Is amendment No. 37 being pressed?

I will leave that to amendment No. 39.

Amendment, by leave, withdrawn.
Amendment No. 38 not moved.

I move amendment No. 39:

In page 21, between lines 28 and 29, to insert the following:

“(3) In any case where the court finds that there are reasonable grounds for believing that a respondent who is not present in court when the order is made, will try to evade service of the order, the court may direct that the order should be served personally by a member of An Garda Síochána with such period as the court may direct.”.

Amendment put:
The Committee divided: Tá, 17; Níl, 13.

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Craughwell, Gerard P.
  • Devine, Máire.
  • Gavan, Paul.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • Norris, David.
  • Ó Céidigh, Pádraig.
  • Ó Clochartaigh, Trevor.
  • Ó Donnghaile, Niall.
  • O'Sullivan, Grace.
  • Ruane, Lynn.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Feighan, Frank.
  • Hopkins, Maura.
  • Lawless, Billy.
  • Mulherin, Michelle.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • Reilly, James.
  • Richmond, Neale.
Tellers: Tá, Senators Ivana Bacik and David Norris; Níl, Senators Michelle Mulherin and John O'Mahony.
Amendment declared carried.
Section 15, as amended, agreed to.
Sections 16 to 21, inclusive, agreed to.
SECTION 22
Government amendment No. 40:
In page 25, to delete lines 35 to 38, and in page 26, to delete lines 1 and 2 and substitute the following:
“(1) Subject to subsection (2), an applicant may, in addition to being accompanied by his or her legal representative (if any), be accompanied in court by an individual (including a support worker) of his or her choice.
(2) The court may refuse to allow an applicant to be accompanied in court by a particular individual at any stage in the proceedings which relate to the applicant if the court considers that it would not be in the interests of justice for the individual concerned to accompany, or continue to accompany, the applicant and where the court so refuses it shall give reasons for such refusal.”.

The purpose of amendment No. 40 is to improve the clarity of section 22, which allows domestic violence victims to be accompanied in court during proceedings under the Bill. Safe Ireland suggested that section 22, which allows applicants for orders to be accompanied in court by a person of their choice, including a support worker, should be amended to allow a particular accompanier to be replaced if there is opposition to the continuation of an individual in that role, on a reasoned basis. It is proposed to amend section 22 to clarify that the court can refuse to allow the applicant to be accompanied by a specified person at any stage of the proceedings in case a difficulty arises with an accompanier during the proceedings. The amendment also makes it clear that the ground on which a court may refuse to allow accompaniment by a specific person is that it would not be in the interests of justice for the individual concerned to accompany, or continue to accompany, the applicant. The court will be required to give reasons for such a refusal.

Safe Ireland has also suggested that section 22 be amended to allow for accompaniment of applicants in interim barring order and protection order applications as well as in safety order, barring order and emergency barring order applications. As it was the intention that all applicants can be accompanied if they so wish, the amendment will clarify that section 22 will apply to all applicants for orders under the Bill. The definition of the term “applicant” in section 2 includes all applicants for orders under the Bill.

Amendment agreed to.
Section 22, as amended, agreed to.
NEW SECTION

I move amendment No. 41:

In page 26, between lines 5 and 6, to insert the following:

“23. A respondent is prohibited from delaying court proceedings under this Act without reasonable cause.”.

Amendment, by leave, withdrawn.
Section 23 agreed to.

Amendment No. 42 is out of order.

Amendment No. 42 not moved.
SECTION 24

Amendments Nos. 43 and 47 are related and may be discussed together.

Government amendment No. 43:
In page 27, line 9, to delete “for an order under section 5, 6 or 8”.

The purpose of these amendments is to clarify that the requirement under section 24 for the Courts Service to provide information to victims about support services, and the definition of “relevant person” in section 33, which prohibits the publication or broadcast of certain matters, will apply in relation to all applicants for orders under the Bill. The definition of the term “applicant” in section 2 includes all applicants for orders under the Bill.

Amendment agreed to.
Section 24, as amended, agreed to.
Sections 25 and 26 agreed to.
Amendment No. 44 not moved.
Sections 27 and 28 agreed to.
SECTION 29

I move amendment No. 45:

In page 28, line 23, after “both” to insert “, and on indictment, to a fine or to imprisonment for a term not exceeding 5 years, or both”.

I cannot agree with this amendment at all for very serious reasons. I agree with the Senators that a breach of a domestic violence order is reprehensible. While I appreciate the purpose of the amendment, I am concerned that unintended consequences detrimental to victims could follow from this amendment. Orders granted under this Bill are civil orders and the threshold of proof in cases is on the balance of probabilities. This is not as onerous as the threshold for criminal cases, which is beyond reasonable doubt. In addition, orders are granted in most cases in the summary jurisdiction of the District Court.

There is a very real concern that if the possible consequences for the respondent are up to five years in prison, an appropriate fine or both, this could have a chilling effect in respect of the granting of orders. Respondents would be expected to contest the cases more vigorously, and in the interests of the justice courts may be less inclined to grant orders. This would be to the disadvantage of victims.

I should mention that the same concerns were highlighted by the Law Reform Commission in its 2013 report on aspects of domestic violence which examined the issue of the appropriate penalty for the offence of contravening an order under the Domestic Violence Act 1996. Therefore, I do not propose to accept this amendment. I request that Senators take what I am saying very seriously and not push the amendment.

What is the attitude of Senator Norris to the very stern response of the Minister of State?

He has made a good point and I am prepared to withdraw the amendment.

I take the point of the Minister of State and support Senator Norris. As I said, there is a concern that prosecutions for breaches of barring orders and so on often involve people who stack up convictions for such an offence, yet because none is a serious offence they cannot be denied bail if charged with a further offence on the basis that they may commit a serious offence.

There is a valid concern about the time limit for service of a summons in respect of a minor offence because these are not indictable offences. I take the Minister of State's point; there may be another way to deal with this issue which involves a change in policing practice and charging people under the Non-Fatal Offences Against the Person Act, in particular the aggravated version of the offence which will be provided for in amendment No. 47b. There are other ways of dealing with the difficulties.

I wish to acknowledge that practising lawyers on the front line and NGOs have pointed out the practical difficulties arising from the fact that a breach of these orders is only a minor offence, and I take the point of the Minister of State as to why this is so. It is worth highlighting the practical difficulties which arise in cases where a respondent has a cumulative series of convictions for breaches of barring orders, none of which is serious on an individual basis but perhaps more serious charges should have been pressed. It is more of a policing issue.

Amendment, by leave, withdrawn.
Section 29 agreed to.
Sections 30 to 32, inclusive, agreed to.
SECTION 33
Government amendment No. 46:
In page 29, to delete lines 38 to 40, and in page 30, to delete lines 1 to 3 and substitute the following:
“ “broadcast” has the same meaning as it has in the Broadcasting Act 2009;
“publish” means publish, other than by way of broadcast, to the public or a portion of the public;”.

Concern was expressed in the Seanad on Second Stage and in submissions received by my Department about the possible unintended consequences of the definition of "publishes" in section 33. The section provides that where criminal proceedings are brought for contravention of an order under the Bill, it will be an offence to publish or broadcast any information or photographs which could lead to identification of the victim or the person charged or a dependant of either of them.

It was brought to my attention that the definition of "publishes" is drafted so broadly that it could criminalise any innocent mention of a case, including the accused person’s identity, by the complainant to anyone. This could merely be an email or text message to a relative or friend in the course of ordinary private correspondence, such as a message saying that, “John’s trial for breaking the barring order is on tomorrow”.

Having looked again at the definitions of "broadcasts" and "publishes" in section 33, I agree that the current definitions are too broad for the intended purpose of the section. It is not the policy intention to criminalise private conversations. The proposed amendments aim to make it clear that only public communications will come within the scope of the offence.

Amendment agreed to.
Government amendment No. 47:
In page 30, line 4, to delete “(within the meaning of section 5, 6 or 8)”.
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 and 35 agreed to.
NEW SECTIONS
Government amendment No. 47a:
In page 32, between lines 3 and 4, to insert the following:
“Offence of coercive control
36. (1) A person commits an offence where he or she knowingly and persistently engages in behaviour that—
(a) is controlling or coercive,
(b) has a serious effect on a relevant person, and
(c) a reasonable person would consider likely to have a serious effect on a relevant person.
(2) For the purposes of subsection (1), a person’s behaviour has a serious effect on a relevant person if the behaviour causes the relevant person—
(a) to fear that violence will be used against him or her, or
(b) serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.
(3) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.
(4) In this section, a person is a “relevant person” in respect of another person if he or she—
(a) is the spouse or civil partner of that other person, or
(b) is not the spouse or civil partner of that other person and is not related to that other person within a prohibited degree of relationship but is or was in an intimate and committed relationship with that other person.”.

This is a new section which deals with controlling or coercive behaviour in an intimate or family relationship. We had a very good debate on this. Having considered the points made by Senators on Committee Stage, I am proposing this amendment. I agree that behaviours in a domestic setting which involve emotional abuse, humiliation and fear can be as harmful to victims as physical abuse as they are an abuse of the unique trust associated with an intimate relationship.

The provisions of the new offence have been carefully drafted in consultation with the Office of the Attorney General. Senators will appreciate that to be effective and enforceable, a criminal offence needs to have a clear definition. For that reason, the new section proposed by this amendment seeks to define coercive control as clearly as possible.

The offence will be committed where a person knowingly and persistently engages in behaviour which is controlling or coercive, which has a serious effect on a relevant person and which a reasonable person would consider likely to have a serious effect on a relevant person. A person is a relevant person in respect of another person if he or she is the spouse or civil partner of that other person, or is or was in an intimate and committed relationship with that other person.

The new section goes on to define what is meant by "serious effect". A person’s behaviour has a serious effect on a person if the behaviour causes the person to fear that violence will be used against him or her or if the behaviour causes serious alarm or distress which has a substantial adverse impact on the person’s usual day-to-day activities. I commend the amendment to Senators and I look forward to hearing their views on it.

I cannot tell the Minister of State how wonderful it is to be here to welcome this amendment. It is truly groundbreaking. I congratulate the Minister of State and his officials for listening and considering the issue. He was sceptical and could see a lot of difficulties, but he was persuaded. I am delighted the Government has listened to the arguments made and has come back with such a comprehensive amendment in the area of coercive control.

We all know domestic violence is not always about a broken arm or a black eye. Women, in particular, although not exclusively, have suffered for years, but this was not recognised as abuse. It is vital that we recognise in law that psychological abuse does happen. According to SAFE Ireland, one in three women in Ireland have experienced psychological violence from a partner at some point in their lives, a startling and arresting statistic. A law against coercive control was recently introduced in the UK. It is a significant problem not just in Ireland but all over the world. The Bill will be much stronger because of this amendment and amendment No. 47b.

I again thank the Minister of State and his officials for taking the time to carefully consider the issue. I would like to pay tribute to all who were involved in progressing this, especially the inspiration and doggedness of Dr. Evan Stark. I would add one minor concern about the penalty. Like everything else, I would like it to be more severe at up to ten years rather than five. It is great to be present for a debate in which this offence is named and recognised.

The Minister of State is compassionate and has listened to the Senator's views. Her praise of him is noted and may be merited.

I wish to add to some of the words of commendation. I congratulate the Minister of State. I see him blushing from afar. It is fully warranted in this instance because, as Senator Norris said, this very important, welcome and critical amendment shows the influence and contribution of the Seanad when passing legislation such as this. The congratulation and commendation of the Minister and his officials are worthy.

I want to extend congratulations to Senator Kelleher for her dogged determination on this issue during previous debates on coercion. I am sure the amendment will be very much welcomed by NGOs and stakeholders present in the Gallery, as well as those watching from afar.

Having spoken briefly with Senator Clifford-Lee about the remarks of the Minister of State, I wish to seek some clarity.

It may have been only a mistaken turn of phrase on the part of the Minister of State, but he referred to an "intimate and committed" relationship. That should probably have been an "intimate or committed" relationship. I am seeking clarity in that regard. It may be a technical issue.

While the Minister of State reflects on that, I call Senator Bacik.

I wish to add my congratulations to the Minister of State. I thank him and his officials for engaging constructively with us and on bringing forward this ground-breaking new offence of control. I commend Senator Kelleher on all her work as well. The result is great to see.

I have no wish to get up again on amendment No. 47b, but I note that it takes account of many of the arguments we raised earlier on Committee Stage about the need for the offence of control, as well as the need for specific recognition for domestic violence in law.

Amendments Nos. 47a and 47b are excellent and I thank the Minister of State for them, as well as for accepting amendment No. 6, which gives the list of criteria for the granting of these orders. These are all important provisions for victims of domestic violence.

I wanted to say more or less the same thing. It shows the value of the Seanad. There has been a good co-operative relationship between the Minister of State and the Seanad. It is a good day. Those of us who are good for the inclusion of coercive behaviour are satisfied.

I wish to add my voice to the sentiments of my colleagues. We spoke about the use of "and" or "or" when we met last week. The Minister of State said he would make a change. Perhaps he can clarify that it will be changed.

I have no wish to take too much time either. It is important to acknowledge the importance of the amendment. There are as many situations of coercive control as there are women who have been subject to it. It can last years and it can be extremely subtle. There is such an abuse of power as well as manipulation and gaslighting. I have met many narcissists who literally spend their time trying to undermine everything a woman is as a person and who use every vulnerability a woman has against her. This amendment goes a long way to acknowledging how entrenched control and manipulation affects women, for the most part, and men as well. It has a lasting effect and it can take many years to get over the traumatic experience of being controlled and manipulated in that way.

I thank the Minister of State on behalf of myself and all the women I have supported over the years for acknowledging these matters in the legislation.

I thank the Senators for the good debate we had last time on this issue. It is important to tease out these matters. When I was Chairman of the Joint Committee on Justice and Equality we had some hearings on this issue and they involved some colleagues here. Again, they were persuasive.

Officials from the Department and the Office of the Attorney General have done considerable work on this over the summer. The term "and" is in the proposed legislation. However, I am prepared to look at it again to see if it is the most satisfactory wording. We have looked at this carefully. The suggestion is that we use "or" instead of "and". I believe there are issues around that. I will not go into them now but I will certainly take this issue away and have a look at it to see whether we can improve it. We have been advised that the current wording is the most suitable wording.

I have taken on board the comments of Senators to the effect that this is an important and ground-breaking amendment. Let us hope it will make a big difference to the people who need the kind of support the legislation will hopefully give.

Amendment agreed to.
Government amendment No. 47b:
In page 32, between lines 3 and 4, to insert the following:
“Relationship between defendant and victim as aggravating factor in sentencing for certain offences
37. (1) Where a court is determining the sentence to be imposed on a person for a relevant offence, the fact that the offence was committed by the person against a relevant person shall be treated, for the purpose of determining the sentence, as an aggravating factor.
(2) Subject to subsection (3), where subsection (1) applies the court shall impose a sentence which is greater than that which would have been imposed if the person against whom the offence was committed was not a relevant person.
(3) Subsection (2) shall not apply where the court considers that there are exceptional circumstances justifying it not applying that subsection.
(4) The sentence imposed as a result of the application of subsection (2) shall not be greater than the maximum sentence permissible for the relevant offence concerned.
(5) In this section—
“Act of 1990” means the Criminal Law (Rape) (Amendment) Act 1990;
“relevant offence” means—
(a) an offence under sections 2 to 15 of the Non-Fatal Offences Against the Person Act 1997,
(b) any offence which involves violence or a threat of violence to a person other than an offence—
(i) referred to in paragraph (a), or
(ii) under section 36,
(c) rape,
(d) rape under section 4 of the Act of 1990,
(e) sexual assault within the meaning of section 2 of the Act of 1990,
(f) aggravated sexual assault within the meaning of section 3 of the Act of 1990,
(g) an offence consisting of attempting or conspiring to commit, or aiding or abetting, counselling or procuring or inciting the commission of, an offence referred to in paragraphs (a) to (f).
(6) In this section, a person is a “relevant person” in respect of another person if he or she—
(a) is the spouse or civil partner of that other person, or
(b) is not the spouse or civil partner of that other person and is not related to that other person within a prohibited degree of relationship but is or was in an intimate and committed relationship with that other person.”.

This amendment arose out of our debates last time. It is an important amendment. I have tabled the amendment taking account of the concerns raised by Senators regarding sentences where violent offences are committed against a person's spouse, civil partner or person with whom he or she is in an intimate and committed relationship.

The purpose of the amendment is to ensure that where offences involving physical or sexual violence are committed in a domestic violence setting, that fact shall be an aggravating factor at sentencing. The relationship is key in this regard.

The list of relevant offences in the provision includes already long-established offences of violence and sexual violence. Non-fatal physical violence is captured by offences under the Non-Fatal Offences Against the Person Act 1997, including assault, assault causing harm, causing serious harm, threats to kill, coercion, harassment, endangerment and false imprisonment. Sexual offences, including sexual assault and rape, are relevant in domestic violence situations as well.

I hope that the proposed amendment to provide for aggravating factors in sentencing for offences committed in a domestic violence context will address the concerns expressed by Senators on the effects of such behaviour.

I am aware that the Femicide Watch report of 2017, recently published by Women's Aid, reports that data on the Irish criminal justice system suggest the system is less severe for men accused of killing their current or former partners than it is for men accused of killing other persons. Women's Aid has recommended that when offences, including physical violence, violence resulting in death, psychological and sexual violence and stalking, are carried out by a current or former partner or spouse, then the intimate relationship should be considered an aggravating factor when it comes to sentencing. This would acknowledge the unique position the offender was in, including the fact that the offender had intimate knowledge of and access to the victim and so brutally betrayed that trust.

The new sentencing provision will apply to any offence that involves violence or the threat of violence to a person. The amendment covers manslaughter, harassment and coercion. It will ensure that aggravated sentencing will apply where a person is convicted of the manslaughter of his or her current or former partner or spouse. The amendment will not affect sentencing for the offence of murder because a conviction for murder carries a mandatory life sentence.

Amendment agreed to.
Sections 36 to 39, inclusive, agreed to.
NEW SECTIONS
Government amendment No. 48:
In page 34, between lines 9 and 10, to insert the following:
“Amendment of section 28 of Civil Legal Aid Act 1995
40. Section 28 of the Civil Legal Aid Act 1995 is amended by the insertion of the following subsection after subsection (5C):
“(5D) Notwithstanding any other provision of this Act, where an applicant or respondent (within the meaning of the Domestic Violence Act 2017) is prevented from conducting a cross-examination referred to in section 15 of that Act, the Board shall grant a legal aid certificate to the applicant or respondent, as the case may be, for the purpose of his or her being represented in relation to such a cross-examination.”.”.
Amendment agreed to.

Amendment No. 49 is out of order due to a potential Exchequer charge.

Amendment No. 49 not moved.

I move amendment No. 50:

In page 34, between lines 9 and 10, to insert the following:

“40. (1) Section 2 of the Non-Fatal Offences Against the Person Act 1997 is amended by the insertion of the following subsections after subsection (4):

“(5) Notwithstanding section 4, the offence created by this section shall be considered to be an arrestable offence.

(6) By way of exception to the rule in section 10(4) of the Petty Sessions Act 1851, a charge under this section may be brought at any time up to two years after its commission.”.

(2) Section 20 of the Non-Fatal Offences Against the Person Act 1997 is amended by inserting the following subsection after subsection (4):

“(5) The court shall have regard to the following aggravating factors in determining the appropriate sentence where an accused person is convicted of any offence under this Act, or under the Domestic Violence Act 2017:

(a) the offence was committed against a former or current spouse or partner as recognised by internal law, by a member of the family, a person cohabiting with the victim or a person having abused her or his authority;

(b) the offence, or related offences, were committed repeatedly;

(c) the offence was committed against a person made vulnerable by particular circumstances;

(d) the offence was committed against or in the presence of a child;

(e) the offence was committed by two or more people acting together;

(f) the offence was preceded or accompanied by extreme levels of violence;

(g) the offence was committed with the use or threat of a weapon;

(h) the offence resulted in severe physical or psychological harm for the victim;

(i) the perpetrator had previously been convicted of offences of a similar nature.”.”.

Since the Minister of State has just spoken about aggravating factors, it would be reasonable to take into account these other aggravating factors as well. The provision includes where the offence is committed against a former or current spouse. It goes on to add in other elements where the offence is committed, for example, in the presence of a child. There are various others elements but I will not list them all because I know we all want to get on with the Bill.

This amendment raises several interesting issues which I will deal with in turn.

Making assault under section 2 of the 1997 Act an arrestable offence would be problematic, as arrestable offences are by their nature more serious crimes and assault under section 2 is by definition a summary offence. The offence under section 3 of the 1997 Act, assault causing harm, is an offence that may, in more serious cases, be subject to trial on indictment in the Circuit Court and is an arrestable offence. Section 4 provides for the most serious category of assault, that is, causing serious harm, with a maximum penalty of life imprisonment. It would be imprudent to distort the continuum of seriousness provided by sections 2, 3 and 4 of the 1997 Act.

Section 32 of the Bill provides for a power of arrest without warrant for breach of a domestic violence order on receipt of a complaint by or on behalf of the person who applied for the order. An assault of the type covered by section 2 of the 1997 Act would usually constitute breach of an order and so would be arrestable as breach of the order.

I note that, with regard to powers of arrest generally, almost all the offences under the Non-Fatal Offences Against the Person Act 1997 are arrestable offences.

As regards the time limit for the bringing of charges under section 2, the six-month time limit for prosecuting offences applies to offences that can only be tried as summary offences.

Section 2 of the 1997 Act is intended to deal with assault in its most minor form and, for that reason, it can be prosecuted summarily only. To extend the period for prosecuting an offence under section 2, as proposed by the amendment, would be a disproportionate departure from the intention of the Oireachtas to provide for the swift administration of justice, except of course where there are compelling reasons to do so. I do not believe that it would be appropriate to significantly extend the timeframe for bringing prosecutions against individuals who are accused of an offence under section 2 unless there is justifiable cause.

The second, and perhaps more pressing issue with this amendment, is the fact that it would extend the period for prosecuting all offences of assault under section 2 and not only those that relate to incidents of domestic violence.

While the intention is understandable, this is an overly broad amendment for this Bill, which is focused on domestic violence.

As regards aggravating factors, the short answer to the Senators’ proposal is that courts will have the power to take a wide range of aggravating factors into account when it comes to sentencing and, in practice, do take account of many factors. However, it could be counter-productive to set down in an Act of the Oireachtas a list such as that proposed by the Senators in their amendment.

Aggravating circumstances for criminal offences are not usually listed in statute. It is primarily a matter for individual judges to identify and determine what are the appropriate aggravating factors to be taken into account in determining a sentence in a particular case in line with the jurisprudence of the Irish courts. The courts have recognised that the aggravating and mitigating factors of sentencing regarding the particular offence should be identified and applied by the sentencing court. The courts have a duty to pass an appropriate sentence in each case, having regard to the particular circumstances of that case, not only in regard to the particular offence, but also in regard to the particular offender. Where a person is convicted on indictment, the Director of Public Prosecutions may apply to the Court of Appeal for review of a sentence she regards as unduly lenient and, in that case, can raise issues regarding aggravating circumstances.

In providing an exhaustive list, as in the Senators’ amendment, all other aggravating factors will be excluded. Given the complexity of domestic violence and the inexhaustible capacity of human beings to devise new ways of being cruel to each other, particular cases may in the future give rise to other aggravating factors. These could not be taken into account if the Senators' amendment was on the Statute Book. The new section to be inserted by amendment No. 47b will ensure that where offences involving physical or sexual violence are committed in a domestic violence context, that fact shall be an aggravating factor at sentencing. As the aggravating factors in the Senators’ amendment would apply to all offences under the Non-Fatal Offences Against the Person Act 1997 and not only domestic violence cases, such a wide-ranging amendment to that Act would not be appropriate to be dealt with in this Bill. Again, I ask the Senators not to press this amendment. I do not propose to accept it.

Is the amendment being pressed.

No. I reserve the right to reintroduce it.

Amendment, by leave, withdrawn.
Sections 40 to 42, inclusive, agreed to.
SECTION 43
Government amendment No. 51:
In page 35, between lines 30 and 31, to insert the following:
“(2) Where, prior to the coming into operation of subsection (1)(a), a person has contravened section 40A(1) of the Act of 2004 as respects proceedings to which paragraph (h) of the definition of “relevant enactment” in section 39 of that Act relates, then notwithstanding the repeal of section 33 of the Act of 1995 by section 39(1)(e), section 40A of the Act of 2004 continues to apply to that contravention as if the amendment in subsection (1)(a) had not been made.
(3) Where, prior to the coming into operation of subsection (1)(b), a person has contravened section 40A(1) of the Act of 2004 as respects proceedings to which paragraph (j) of the definition of “relevant enactment” in section 39 of that Act relates, then notwithstanding the repeal of section 16 of the Act of 1996 by section 3, section 40A of the Act of 2004 continues to apply to that contravention as if the amendment in subsection (1)(b) had not been made.”.

Section 40A of the Civil Liability and Courts Act 2004 prohibits the publication or broadcasting of information that would be likely to lead members of the public to identify the parties to family law proceedings or children to whom the proceedings relate. Section 39 of the 2004 Act lists the legislation to which section 40A applies, which includes the Domestic Violence Act 1996. Section 43 of the Bill amends section 39 of the 2004 Act to replace references to the Domestic Violence Act 1996 with references to the corresponding provisions of the Bill. The purpose of this amendment is to make provision for cases involving offences under section 40A of the 2004 Act alleged to have been committed before the commencement of this Bill.

Amendment agreed to.
Section 43, as amended, agreed to.
Sections 44 to 46, inclusive, agreed to.
Amendments Nos. 52 to 54, inclusive, not moved.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

On Thursday, 30 November 2017.

Report Stage ordered for Thursday, 30 November 2017.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 9.05 p.m. until 10.30 a.m. on Wednesday, 29 November 2017.