In the absence of the Chairman, Deputy Charles Flanagan, may I have nominations for the position of Acting Chairman?
Appointment of Acting Chairman.
The Clerk
I propose Deputy John Browne (Carlow-Kilkenny) as Acting Chairman.
The Clerk
Is that agreed? Agreed.
Before we deal with the Domestic Violence Bill, Deputy Fitzgerald wishes to raise a point.
I seek the agreement of the Select Committee to my proposal to increase from 11 to 13 the number of Members on the drugs subcommittee. As one of the extra members would represent Fianna Fáil and the other would represent the Government the Government's majority on the subcommittee would be maintained.
I second that proposal.
Is that agreed? Agreed.
Domestic Violence Bill, 1995: Committee Stage.
I welcome the Minister to the Select Committee.
I move amendment No. 1:
In page 5, subsection (1), to delete lines 4 and 5 and substitute the following definition:
"‘welfare' includes the physical and psychological welfare of the person in question.".
The amendment proposes to replace the term "emotional and mental welfare" with the term "psychological welfare" so as to make the definition more precise. If the court is obliged to consider an applicant's emotional welfare it may take into account matters for which the respondent may be responsible but which may not involve any legal or moral blame. As the definition is not exhaustive it would not in extreme circumstances prevent the court from considering the applicant's emotional response to the respondent's behaviour.
A barring order is a severe remedy for the person who is barred and a breach of it is a criminal offence. One must be precise in this area because while a person may not be blameworthy in terms of conduct there may be an emotional aspect involved. This should not result in the imposition of a barring order or a criminal sanction. In cases involving marital breakdown the emotional trauma may arise from the breakdown of the marriage and there may be no intention to cause harm to the other partner. This amendment relates to the precision, so to speak, of the wording and the extent to which the definition could be used.
Under the Family Law (Protection of Spouses and Children) Act, 1981, barring orders are made by the courts where the safety or welfare of the victim is in question. Likewise under the Bill, the protection of a barring order or the new type safety order will be available where the safety or welfare of the victim is in question. However, the 1981 Act does not define the word "welfare". This term is defined in section 1 as including the physical, emotional and mental welfare of the person in question.
In the case of O'B v. O’B, 1984, Irish Reports 182, the Supreme Court made it clear that violence in the home can take several forms, is not confined to physical abuse and can include emotional and mental cruelty. Nevertheless the perception remains with some groups that mental cruelty is not a ground for a barring order. The definition of the word “welfare” is intended to allay the concerns which those groups have on the matter. It may be that Deputy Woods’s amendment which proposes to replace the words “emotional and mental” with the word “psychological” achieves the same purpose in simpler terms. I am prepared to look at the matter again between now and Report Stage in consultation with the parliamentary draftsman to see whether that would be the case. The advantage of the approach taken in the Bill is that it reflects the wording used in the judgment of the Supreme Court. However, I am open to persuasion on the best formula to use in the context of legislative provisions. I ask the Deputy not to press his amendment on the understanding that we can deal with the matter, if thought necessary, on Report Stage.
Usually we are given a copy of amendments one or two days before a Bill is taken and I am surprised that that did not happen on this occasion. This may have been due to printing difficulties.
I support Deputy Woods's amendment. We received a submission from the Coolock Community Law Centre which is concerned about the need to ensure clarity in the interpretation of the definitions. It accepts that the Minister has gone further than his predecessors in trying to address this problem but feels the wording could be open to misinterpretation in the courts. It is concerned, therefore, that the Bill may not achieve its purpose in that the word "emotional" may be interpreted to mean feelings rather than something more serious. It points out that it is the view of the organisations involved in this area that unless there is physical cruelty — it cites various cases in its submission — there is not much point in fighting a case in court. The Minister has sought to resolve this problem by including the work "emotional", but as it believes this may be misinterpreted it is of the view that the word "psychological" should be used to convey a greater degree of seriousness.
The word "mental" has also been included. I will consider the matter.
While I welcome the changes to the 1981 Act I can see the arguments in favour of the amendment which, perhaps, would achieve the purpose we want to achieve in a simpler way. This definition, which goes to the heart of the Bill, is of critical importance. It defines the situations in which a safety or barring order may be obtained. The submission from the Coolock Community Law Centre contains some startling statistics. A report presented to the Home Secretary in the United Kingdom in 1990 showed that in 43 per cent of murder cases the suspect had lived with or was married to the person killed, usually the female partner.
The circumstances in which a barring order may be obtained were laid down in the 1981 Act which was subsequently interpreted in 1984 by the Supreme Court. While it may be argued that the interpretation of the Supreme Court is restrictive it is clear that in law a person does not have to be physically assaulted before a barring order may be obtained. Despite this it seems that no District Court judge is applying the law as laid down by Parliament and as interpreted by the Supreme Court. District Court clerks throughout the country are informing women that there is no point in taking a case to court if they have not been physically assaulted, wounded or maimed. This is not acceptable.
While I appreciate what the Minister is trying to do—to ensure that the threat of physical violence will be sufficient to enable a woman obtain a barring or safety order— will he consider issuing a practice direction to District Court judges, taking into account the constitutional constraints, to ensure that they will apply the law as laid down by Parliament and as interpreted by the Supreme Court? The phraseology is the same except for the extended definition of "welfare" which even in 1981 meant something although it did not imply physical assault. Can anything be done about this?
I have introduced this Bill to amend the law. As the Deputy is aware, I cannot issue any practice directions to members of the Judiciary who are independent in the exercise of their functions under the Constitution, but we can, to the best of our ability, make laws to achieve certain ends. That is what we are about and the reason I introduced this Bill.
To overcome this difficulty, once the Bill is enacted, will the Minister consider issuing a lay person's guide to make the position clear and to avoid any misunderstandings given that the non-governmental organisations involved in this area, including the Coolock Community Law Centre, will want to understand its implications and be able to advise their clients accordingly? This has been done in other areas and it may be appropriate to do so in this instance also.
Amendment, by leave, withdrawn.
We now come to amendment No. 2. Amendment No. 15 is related. I suggest, therefore, that amendments Nos. 2 and 15 be discussed together by agreement. Agreed.
I move amendment No. 2:
In page 5, between lines 5 and 6, to insert the following subsection:
"(2) In this Act, where the context so requires, a reference to a spouse includes a reference to a person who is a party to a marriage that is void or voidable or has been annulled in the State or that has been dissolved or annulled under the law of a country or jurisdiction other than the State.".
To a great extent this is a technical amendment. I am concerned that there is a loophole which may be exploited. The purpose of this amendment is to try to close it. A person whose marriage has been annulled in this State or annulled or dissolved in another jurisdiction should be entitled to the same level of protection. I ask the Minister to consider the amendment in that context.
This amendment relates to the granting of a safety order while amendment No. 15 relates to the granting of a barring order. They are, therefore, similar. The purpose is to ensure protection in both instances..
In regard to this amendment, if the pro-divorce campaign is successful in the referendum provision will have to be made for persons whose marriages are dissolved within the State. Amendment No. 15 reads: "was the spouse of the respondent prior to the annulment or the dissolution of the marriage between the spouses". This would cover both instances. The Minister can take his choice as to which one he prefers.
The effect of the amendments of Deputies Keogh and Woods would be to enable one party to a marriage that is void or voidable or has been annulled in the State or that has been dissolved or annulled under the law of a country or jurisdiction other than the State to obtain a barring order against the other party to that marriage. The amendments lack precision. For example, the amendments could mean that, where a party to a marriage obtains a foreign divorce, he or she could seek a barring order against the other whether such foreign divorce is recognised in the State. What the Deputies may have in mind is that, where a foreign decree of divorce is entitled to recognition in the State, either party may seek a barring order against the other.
In so far as foreign decrees of divorce which are recognised here are concerned, the position is that the recently enacted Family Law Act, 1995 makes provision for the granting of barring orders under the Family Law (Protection of Spouses and Children) Act, 1981 to ex spouses who have a recognised foreign decree of divorce. This will continue to be the position even after the repeal of the 1981 Act by this Bill. My proposed section 21 under amendment No. 35 has been framed specifically with this in mind.
However, the circumstances under which such orders can be granted under the Family Law Act, 1995, are heavily circumscribed. The court must first hear an ex parte application to ensure the application is well founded and that the parties satisfy certain jurisdictional rules. This is to ensure that valuable court time is not wasted on spurious applications from persons with foreign divorce decrees which do not meet the criteria for recognition in Ireland. In addition, the Act provides that where either spouse has remarried the remedy is not available. The court must also take a number of other factors into account, such as the length of time which has elapsed since the foreign divorce was granted and the extent to which the order is likely to be enforceable.
The 1995 Act does not cover the situation of spouses who have a domestic or foreign decree of annulment of marriage. I am prepared to examine that issue for Report Stage. The matter is not without some difficulty and it may be that separate legislation covering nullity in this and other respects would be the more appropriate and safest way forward. In the circumstances, I cannot accept these amendments.
On the grounds the Minister will examine the issue for Report Stage I will withdraw my amendment.
It is a complicated matter and I would like it addressed in the best possible way. I will also await Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 5, between lines 12 and 13, to insert the following subsection:
(3) Any reference in this Act to any other enactment shall, except where the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment including this Act.
This is a purely technical amendment. It is intended to ensure the references in the Bill to other enactments take into account amendments to those enactments. For example, The Family Law (Maintenance of Spouses and Children) Act, 1976, which is referred to in section 9 (2) (b), has been amended by the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989 and the Social Welfare Act, 1989.
Amendment agreed to.
Section 1, as amended, agreed to.