Amendments Nos. 5, 12 and 16 are related to amendment No. 4 and amendments Nos. 13 and 14 are alternatives to amendment No. 12. Amendments Nos. 4, 5, 12, 13, 14 and 16 may be taken together. Is that agreed?
SECTION 2.
The grouping seems a little wide but it does not matter.
Is that agreed? Agreed.
I move amendment No. 4:
In page 5, subsection (1) (a) (ii), lines 23 to 25, to delete all words from and including "during" in line 23, down to and including "order" in line 25 and substitute "or is the parent of a child in common with the respondent".
This amendment makes two changes which are intended to broaden the category of non-spouses, that is cohabitees, who would be entitled to apply for a safety order. The first change removes the requirement that a couple must have lived together for six of the previous 12 months and requires only that they have lived together for at least six months. This recognises the unstable nature of many violent or dysfunctional relationships where one partner may come and go from a shared home or the partner's home. The length and stability of a relatioship may be taken into consideration by a court when deciding to grant the order but should not be used as a threshold to exclude people from protection.
The second proposed change would allow the co-parent of a child to apply regardless of whether or the length of time the parties have lived together. We thus recognise that common parenthood itself creates a unit in which domestic violence may surface. It also allows the parent of a dependent child to seek a safety order to protect that child against the other parent. There is no other provision in the Bill which would allow for this.
For cohabitees we wish to lessen the threshold for applying for a safety order. For co-parents who are not cohabitees or do not satisfy the criteria for cohabitees in this section, for example, lone parents, this amendment allows them to apply for a safety order. It would also allow for a safety order to protect the child without involving the health board. The mother could apply in such circumstances and this could be important to mothers who might otherwise be seen as incapable where the health board has to intervene.
This amendment makes eminent good sense. A safety order can only be granted to somebody who, for a period of at least six months in aggregate during a period of 12 months immediately prior to the application for the order, lives with the respondent as husband and wife. Subsection (1) (a) (iv) refers to a person of full age who ". . . resides with the respondent in a relationship the basis of which is not primarily contractual". No requirement as to how long that person must live with the other partner is indicated.
Subsection (1) (a) (iv) would cover cases where friends live together, a brother and sister live together or where two people live together in a homosexual relationship. They can get a safety order without any criteria laid down as to how long they have lived together, whereas if people live together as husband and wife a time criterion is laid down.
I cannot see why the legislation should be drafted so as to penalise nonspouses who happen to live together as husband and wife. If they cannot prove the time criterion they will argue their case under the provision of subparagraph (iv) that they did not have a sexual relationship. It is difficult to prove whether people have had a sexual relationship.
It makes sense that the father or mother of a child should be entitled to apply on the basis that when people who not live together have a child in common there may be a question of access. The person who is not living with the child may be visiting the family home for access purposes and might be a suitable target for a safety order. The Minister should look sympathetically at the amendments as they would improve the Bill.
Amendment No. 5 states:
In page 5, subsection (1) (a), between lines 25 and 26, to insert the following:
"(iii) "is a person in relation to whom another person is a dependent person, and that other person is also a dependent person of the respondent, or"
Women's Aid, among others, considered it important that any person who has a child in common with a person who is abusing her ought to be able to apply for a safety order under section 2 or a barring order under section 3. Deputy Woods' amendment states: "or is the parent of a child in common with the respondent". There is a danger that might be interpreted as meaning only biological parenthood and adoptive parents, step-parents or those in loco parentismight be excluded.
The Bill permits the obtaining of barring and safety orders for the protection of children but a narrow biological view of parenthood would deprive many children of the protection they need. Instead of "protecting children" they used the concept of "dependent person". That is why I included it in my amendment. It is a broad and flexible concept which takes account of the changing nature of family relationships and accepts that the relationship between an adult and a child may not be based on biological parenthood. The amendments are designed to allow any person who has a child in common with the abuser to apply for an order and use the concept of "dependent" person and not "child".
Amendment No. 5 is similar to mine but it includes circumstances where the respondent, who is not the natural parent, accepts responsibility for a dependent child. Amendment No. 12 reduces the time of cohabitation from six out the previous seven months to six out of the previous 12 months and introduces the idea of a parent being allowed to apply without the requirement of cohabitation. In amendment No. 13 the Minister goes some way towards meeting the points made by both sides.
The same points apply to amendments Nos. 5 and 16. The Minister has gone a considerable way in amendment No. 13. The amendments are practically identical and have much the same criteria for safety and barring orders. The Minister suggests deleting "continuous" and that is a good concession. My amendment sates a period of six months in aggregate during the period of 12 months whereas the Minister states: "for a period of at least six months in aggregate during the period of nine months". Why not have the other three months? We should take the recommendation made by Women's Aid into account and state 12 months rather than nine.
One effect of amendment No. 4 would be to fundamentally change the requirement in the Bill that cohabitants be living together for six months in aggregate in the period of 12 months immediately prior to an application for a safety order to a requirement that they were living together at any time for a period of six months in aggregate. I am unable to agree to a change of that kind. It would mean that cohabitants could split up at any time for two, three or five months or any indeterminate time and apply for a safety order. I am satisfied that an amendment on those lines is objectionable in principle and practice.
Breach of a safety order gives rise to serious consequences. It would render a person liable to arrest in respect of behaviour which might not otherwise constitute a criminal offence. The respondent may be arrested without warrant and, for the purpose of arrest, the gardaí may enter any place where the respondent happens to be, whether in his or her home or wherever. It is important that these far reaching powers, even in the context of domestic violence, should be available only in specific circumstances.
If two people who lived together for an aggregate period of six months subsequently break up and have little or no contact for a year or two there would not be a reason the safety order remedy should be available to them. A line must be drawn somewhere and the Bill achieves a satisfactory balance in the matter.
Amendments Nos. 4 and 5 would also allow the right to apply for a safety order without any restrictions. To extend coverage further to all persons who have a child in common, even when they do not reside together, would depart from the main purpose of the Bill which is to protect persons who are residing together. That is as far as the Bill can go. To go further would be to allow persons to invoke a special law which is not designed to apply to anything other than to domestic relationships and not to casual relationships where in reality a relationship does not exist.
Amendments Nos. 12 and 14 propose that the period of living together be six months in aggregate within a 12 month period immediately prior to the application. I understand that such a formula would cohere with the formula regarding safety orders under the Bill. Under section 3 as it stands a cohabitant will be in a position to apply for a barring order where he or she is living with the person for a period of six months during the period of seven months immediately prior to the application.
Following our discussion on Second Stage I examined this provision further and amendment No. 13 is the outcome. It provides that the period of living together must be six months in aggregate during the period of nine months immediately prior to the application for a barring order. I am advised that a stricter provision is necessary in the case of a barring order than in the case of a safety order because we run the risk of constitutional challenge by giving the court power to order a cohabitant from his or her home. To minimise the success of any such challenge the provision needs to be operated under strict conditions consistent with the need to protect persons from violence in the home. I regret I cannot go further than is provided for in amendment No. 13.
Another effect of amendments Nos. 12 and 16 is that persons would merely have to have a child in common in order to obtain a barring order. I dealt with that issue in the context of amendment No. 4 and regret I am not in a position to support these amendments.
The section as drafted is not correct. We are talking about the conditions in which a safety order can be obtained. The section states that if people live together as husband and wife and one applies for a barring order that person must satisfy a court that they have lived with the other party for six of the preceding 12 months. However, if two people are living together, not as husband and wife, but, say, as homosexual partners, brother and sister or friends, all they have to prove is that they began residing with the respondent yesterday, in the past week or past month and have a lower barrier to overcome.
I do not understand why the section should be drafted in a manner that discriminates against or renders it more difficult for a co-habitee, who is not a spouse, to obtain a safety order just because they happen to be living together as husband and wife. If, whenever an objection is raised that the persons involved have not been living together as husband and wife for the appropriate period, I predict they will simply resort to the provision in section 2 (1) (a) (iv) and contend that they are not living together as husband and wife, when the onus will shift to prove a sexual relationship, which is an impossibility.
After consulting Deputy Woods I understand we shall not be pressing this amendment. Nonetheless it is something we shall have to consider between now and Report Stage. While I take the points the Minister made in replying, he has not met that case.
I should like to extend Deputy Eamon Walsh's apologies for his absence abroad on business. I am substituting for him.
Henceforth health boards will be in a position to seek an interim barring or safety order — the application is at present made by the injured party who would have to incur the relevant costs or obtain free legal aid — and I do not see any reference in the section as to who should bear those costs, would the Minister clarify whether it is meant that the relevant health board, having sought the order, would be responsible for them?
Very often in the case of a co-habiting relationship, there will be involved not only the co-habiting couple but a child or children who effectively may not be the child or children of either partner. Will the Minister comment on this within the context of the amendments being discussed. Whereas at present the provision refers to the protection of the child or children of the co-habiting couple, in many cases there may have been more than one father involved.
The Minister appears to be conceding that his present proposal of a "continuous period of a least six months during the period of seven months" is too restrictive and is proposing to substitute the following, "period of at least six months in aggregate during the period of nine months" and Deputy Keogh, on behalf of the Progressive Democrats, and we in Fianna Fáil want to specify an aggregate of six months out of 12. Since the principle of the Bill is to extend the relevant protection, I consider our proposal quite reasonable and ask the Minister to re-examine that matter before Report Stage.
In addition, the Progressive Democrats and ourselves want to include the "co-parent" just as in the case of the safety order. We will accept the Minister's offer but we will reserve our right to return to the issue on Report Stage and ascertain what can be done then.
The Minister maintains it is not possible to cover that contingency under the provisions of this Bill. If a woman has had a child by somebody and is threatened or being abused, can the Minister say in what circumstance she can apply for relief or for a barring or safety order? I am not clear on the Minister's reasoning behind that provision. Will he clarify it?
The point made by Deputy Keogh is covered in section 2 (2) which reads:
Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or any dependent person so requires.
One then seeks to ascertain the definition of "dependent person" when one finds it includes the in loco parentiscondition.
There are two categories involved in Deputy O'Dea's query. One arises where the people, at the time of the application, are residing together which is covered under section 2 (1) (a) (iv) which reads:
being of full age resides with the respondent in a relationship the basis of which is not primarily contractual;
That is any relationship other than a contractual one.
Section 2 (1) (b) reads:
In deciding whether or not a person is residing with another person in a relationship the basis of which is not primarily contractual, the court shall have regard to—
the provisions of subsections (i) to (iv) inclusive.
On the other hand, one is dealing with a different circumstance in the case of a co-habitant in section 2 (1) (a) (ii) because, there, one cohabitant at the time of the application has not and need not be actually living with the other cohabitant, since the relevant subsection reads:
(ii) is not the spouse of the respondent but has lived with the respondent
—not is residing with—
as husband and wife .....
In other words, it would be open to a cohabitant who is actually living with the other cohabitant at the time of the application to avail also of the provisions of subsection (iv) without the time limitation, always provided, of course, the qualifiers in (b) were taken into account by the court, the length of time and so on.
Amendment, by leave, withdrawn.
I move amendment No. 5:
5. In page 5, subsection (1) (a), between lines 25 and 26, to insert the following:
"(iii) is a person in relation to whom another person is a dependent person, and that other person is also a dependent person of the repondent, or"
Amendment, by leave, withdrawn.
Amendment No. 6 is in the name of Deputy Keogh. Amendment No. 7 is an alternative and I suggest they be discussed together by agreement. Agreed.
I move amendment No. 6:
In page 6, subsection (2) (b), to delete lines 14 and 15 and substitute:
"enter, approach, watch or beset any place where the applicant or that dependent person resides, works or attends for educational purposes or any other place the court may specify,".
This amendment also echoes the concerns of Women's Aid. While acknowledging that Deputy Woods' amendment is somewhat similar, my concern would be that perhaps a respondent might be in breach of the provision or something of that nature. Since we want to be sufficiently precise about the exact place and so on without being too all-encompassing, I would appreciate the Minister accepting this amendment.
Our amendment is similar to Deputy Keogh's. Ours proposes to delete "the place where the applicant or that dependent person resides" and substitute", approach or enter, where the applicant or that dependent person resides, is not residing or happens to be". Its purpose is to deal with the place where the person is, works, or resides. Deputy Keogh's amendment is somewhat broader. It provides that the person shall not approach or enter a place if a safety order exists in respect of the place, which may may be one where the applicant "works or attends for educational purposes". There may be problems with that — could it include a university campus, or is it confined to the lecture theatre? Is the amendment too broad and would it interfere with the other persons civil rights? It is difficult to define exactly the appropriate amendment and I would like to hear from the Minister about this in the first instance.
I support the thrust of these amendments. I prefer ours but if the Minister wishes to accept the Progressive Democrats' amendment that is fine. If an application for a safety order is successful, the court orders first, "that the respondent . . . shall not use or threaten to use violence, molest or put in fear the applicant"; and second, that he shall not "watch or beset the place where the applicant resides". We all agree with the first part but why should the second part be restricted to the place where the applicant happens to reside? The applicant will not spend all his or her life indoors — he or she may go to work and there are certain places most potential applicants will regularly attend. Why can the order not be extended to prevent respondents watching or besetting applicants from the moment they leave their homes?
There is no point going over ground already covered. The section sets out to do away with the intimidation often used by a respondent after a barring or safety order has been granted. A great deal of our legislation takes too much cognisance of the criminal, although the person referred to in this Bill is not necessarily criminal. We give too much consideration to that person's rights and not enough to the victim's. The amendments broaden the scope of the victim's rights in that he or she is afforded more protection. Rather than this legislation being on the side of the perpetrator, it should be more restrictive of that person's movements. I have no great worry about preferring one amendment to the other but the Bill as drafted needs to be tightened up.
Amendment No. 6 refers to "any place where . . . the dependent person resides, works or attends for educational purposes". Often the two people involved may work in the same building, office, factory or pub. Will Deputy Keogh clarify her amendments because this point could create major problems?
The amendment attempts to achieve a balance. The section as drafted is too restrictive and it should be broadened to cater for various other places. The amendment also provides that the order may include "any other place the court may specify". If people are under serious threat they should be protected virtually no matter where they are, although the provisions cannot be so all-encompassing that the two people cannot be in the same town.
It would be interesting to hear what the Minister has to say.
The effect of amendment No. 7 would be to extend the court's power to make a safety order so that the respondent would be prohibited from watching or besetting the applicant at any place where the applicant would happen to be. An amendment on those lines would arguably introduce a provision which could be difficult to enforce and lead to cases of injustice. The Bill is already framed in a way which meets most circumstances in which a person might need protection outside the home. Section 2 (2) (a) provides that a person may be directed not to "use or threaten to use violence against, molest or put in fear the applicant". That should meet many of the situations apparently intended to be covered by Deputy Woods's amendment.
Amendment No. 6 from Deputy Keogh is intended to cover the same point as amendment No. 7 but is more specific in that the places where a person may be protected include places where the applicant "works or attends for educational purposes or any other place". Legal policy considerations must be taken into account with these amendments, for instance the practical consideration of cases where the applicant and respondent are employed in the same workplace or attending the same college of education.
I will discuss the matter with the parliamentary draftsman to consider whether there is need to include any further specific provision somewhat along the lines suggested.
Deputy Keogh's amendment provides that any other place included in the order will be such place as "the court may specify", if this is happening in such a place. I am aware of cases where a person was continuously besetting and watching a staff member at work, which was a major problem.
Some people are watched all the time.
Some more than others.
It is all in the mind.
I thought as mature politicians we would be used to that and not feel set upon or beset.
Someone is watching us.
The Minister may wish to take this into account. I realise the difficulties but the Minister can see our points; we want to provide the necessary protection while the Bill is being drafted and I am happy with the Minister's undertaking to look at it.
Section 2 (2) (a) is not limited to the home — it is a prohition against molesting or putting in fear at any location. It is not confined to the home or residential place.
I have a suggestion the Minister may make to the parliamentary draftsman when examining this. I take Deputy Bell's point that if two people are working in the same establishment it is difficult to prevent one watching the other but besetting is more than watching.
One could cause annoyance but not go as far as causing fear by besetting them. I suggest we confine the provisions on watching to the actual residence and extend besetting to the categories of places referred to in Deputies Keogh's and Woods's amendments.
The Minister appreciates what we are trying to achieve and I am happy to withdraw my amendment.
Amendment, by leave, withdrawn.
Amendment No. 7 not moved.
Amendments Nos. 8 and 9 in the name of Deputy Woods are related. It is proposed to discuss them together by agreement. Is that agreed? Agreed.
I move amendment No. 8.
In page 7, subsection (5), lines 6 to 8, to delete all words from and including "expire" in line 6, down to and including line 8, and substitute "expire three years from the date of its making or on the expiration of such other period as the court may provide in the order not exceeding the period of five years.".
It is proposed that a safety order should last five years and may be renewed for a further five years, unless the court specifies a shorter period. In our view ten years is long for an order that has very serious consequences, the Minister indicated on an earlier section that a breach of the order is a criminal offence. In this amendment we propose that the standard length of a safety order be three years, the same as the proposed duration of a barring order but the court has discretion to make an order up to five years in very serious cases. There is also provision to have the order renewed. The consequences of a safety order is that the person is registered at the local Garda station and since men in the main are involved, one is a marked man for that period.
How many barring order applications are successful? I understand that less than half are successful and that the courts are reluctant to make a barring order. The proposed period of three years for barring orders should apply also to safety orders. We want to ensure that the woman involved will be protected and not make it less likely that she will succeed in getting the order for which she applied.
Amendment No. 9 is similar to amendment No. 8.
Under section 2 the court will have power to grant a safety order for a maximum period of five years and will have power to make such orders for a shorter period if it thinks fit in a particular case. The effect of amendment No. 8 would be a maximum period of three years with the court having power to make an order for a shorter or a longer period but not exceeding five years. I think a revision along those lines confuses rather than clarifies: either the section sets down a maximum period of duration or it does not. The section sets down clearly a maximum period but the amendment does so in a roundabout way which is not clear. In the circumstances I am not disposed to supporting this amendment. Amendment No. 9 is similar and for the same reason I cannot support it.
The maximum period of a barring order is three years and the maximum period of a safety order is five years. These are maxima and it is open to the judge to fix the period.
We suggest that the way proposed introduces in practice a standard recognised period and the court will be working around that point. The problem arises from the practice rather than the theory. From the theoretical point of view the court may make an order for a shorter period but submissions from a person with practical experience and the Coolock Law Centre state their concern about the length of the safety order: an order which lasts for a period of five years, renewable on expiration for another five years is a very long term order. We would query whether safety orders need to be of such length. We foresee difficulties in enforcing such orders after the lapse of time. Prosecutions of breaches of orders made nearly five years previously or ten years previously, if the order has been renewed, may be difficult. We are anxious that the legislation maintains credibility and enforceability may become an issue. We are not alone in thinking that the standard length is too long. Our point is well made and arises from what happens in practice.
I appreciate that the court has discretion to set a shorter period but we suggest that the standard period should be shorter and this is based on what those with experience have told us. Our amendment is reasonable.
I am at a loss to understand how you can have a standard length as there is no standard length because it depends on the circumstances of the case. It may be appropriate to have a safety order for six months, a year or if there had been a history of violence a judge may decide not to put the spouse and children at risk and order the man not to assault his wife and children for five years. The length of the period does not detract from the force of the order as some injunctions are granted and court orders are made on a permanent basis. We are discussing safety orders and not barring orders and a safety order does not require a spouse to leave the home. All that is required is not to use violence against the spouse. That is something one would expect on a permanent basis in the first place but regrettably where a court order is required a judge has to assess the needs to decide the appropriate length of time for the safety order if the person has been violently assaulting a spouse and child-children.
The requirement under the safety order is not that onerous. It is only that he must not knock his spouse around the head or injure a child. That is the kind of injunction that we all keep without the necessity for a court order.
We will do our best if the Minister will. In regard to the barring order we are talking about three years, or less if the court so decides. The Minister may say that a safety order is not as severe as a barring order. However, I would impress on the Minister that we are expressing the views of those who are involved. If this was about industry and commerce and the people involved in business were giving us their views based on their practice in business, we would, presumably, be saying that they know what they are talking about. The Minister said there was nothing to a safety order, that it was only stopping people from pursuing a certain course of action. However, a person will be registered at the local Garda station, and that means much more than just being required to do or not to do something. It puts a very strong mark against a person in his community which nobody wants to have. If a safety order works properly, there should be no need to have it in force for any longer than three years. There are reasonable grounds for our case which the Minister should consider. It is something which struck us and the practitioners who work in the courts and see what is happening at first hand. The Coolock Law Centre, which has done pioneering work in this area, has come to a similar conclusion. The Minister should examine the issue again.
I do not agree with Deputy Woods. He mentioned the practitoners, but let me be so bold as to say they represented both sides, although they try to be balanced. One of the important point about this Bill is that it sends out the right messages and sets out sanctions. Anybody who beats his wife or anybody else deserves to be registered for five years. I would register him for ten years, in one of my lunatic moments.
The Deputy might be right.
Deputy Woods is trying to be fair but in this context we must have serious sanctions. To say that a safety order must be in place for five years rather than three sends out a stronger signal, and there is a discretion anyway.
If a safety order is granted for five years, in what circumstances can it be renewed? Will the applicant have to produce fresh evidence regarding something that happened since the order was granted, or will the circumstances under which the first order was granted be sufficient?
I would think some fresh evidence would have to be given and that the judge would have to be satisfied that it was necessary to renew the order. I do not want to speculate on what that evidence might be, but it might consist of threats or circumstances in the home that the court considers would give rise to fears, etc. It would be a matter for the court to decide, but I would think there would have to be some evidence to induce the court to renew the order. If there was perfect calm and peace for five years, a court would probably be reluctant to grant a renewal.
Regarding Deputy Woods's point on the Coolock Law Centre, I have the greatest respect for its work. It has much experience of these matters, but so do the judges who hear these cases. They dealt with them as lawyers before they were appointed to the Bench and they deal with them now as judges. My view is that the court should have a discretion. If the court feels it necessary to make a safety order for five years, it should have the power to do so. The wording of the amendments submitted by Deputy Woods could not stand because they are saying neither one thing nor the other. They are trying to signal a three-year standard but at the same time give power to make it five years. If the Deputy wishes to move an amendment on Report Stage suggesting that the maximum period of five years should be reduced to a maximum of three years, I will consider that. I am not saying I will accept it, but it would certainly send out a clear signal. We could then consider whether the maximum period should be five or three years and, in deciding whether or not to accept such an amendment, I will listen with interest to any contributions.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Amendments Nos. 10 and 11 form a composite proposal. We will take them together, by agreement.
I move amendment No. 10:
In page 7, subsection (7), lines 21 and 22, to delete all words from and including "unless" in line 21, down to and including "matter" in line 22.
Amendment No. 11 seeks to insert the following subsection in page 7, between lines 22 and 23: "The court shall not hear an application for a barring order and an application for a safety order concerning the same matter between the same parties at the same hearing". As currently drafted, section 2 (7) is intended to prevent a court granting a safety order, which is the lesser remedy, on the application for a barring order, that is, to take the easy way out, unless the applicant has also applied for a safety order. The amendment goes even further seeks to prevent the court even considering an application for a barring order and a safety order together. In practice, it is likely that most applicants for a barring order will also apply for a safety order in case they cannot establish the grounds for the more serious remedy, and since the court is likely to have both applications before it, the section as it stands may not have the desired effect. The disadvantage of our amendment would be that if the applicant applied for both orders two separate hearings would be necessary.
The Minister did not give me the figures I asked for earlier regarding the number of barring order applications and how many were successful. Since the success rate in respect of barring order applications is relatively low, it is likely that most solicitors would advise their clients to apply for a barring order and a safety order at the same time to increase their chances of success and the court may take the easiest option and grant a safety order. A simple procedure needs to be put in place to enable an application for the other order to be taken on the same day if necessary. Will the Minister state the figures in respect of barring order applications and the success rate?
I do not have specific figures befor me, but the Legal Aid Board has indicated that 90 per cent of applications for barring orders that proceed to court are successful; some may be withdrawn before they get to court.
Amendments Nos. 10 and 11 go against one of the Bill's principal objectives, that of empowering the victim. Under the Bill as it stands a victim, or indeed the parent of a victim, has three options. He or she may apply for a barring order, a safety order or a barring and safety order. The effect of Deputy Wood's amendments would be to remove the third option, leaving the victim with only two options. If a victim wishes to ensure a court does not grant a safety order as a soft option in lieu of a barring order, he or she can simply avail of the first option and apply for a barring order only. I am not in favour of the proposed amendment. The section as framed gives three clear options to victims of violence and that should remain the position under the Bill.
From the statistics available to me, it is my understanding that between 1986 and the legal year ending July 1994, approximately 35,000 applications for barring orders were made and in round figures approximately 16,000 applications were granted at District Court level. I do not have the annual breakdown of those figures with me, but if the Deputy wishes I can submit them to him. That establishes the high number of barring orders granted and it also establishes that, except in serious circumstances, in general wives do not seek barring orders.
There are two or three matters worth bearing in mind in the context of those statistics. It should be noted that the remaining 19,000 applications were not all dismissed. Anyone who works in the area of family law will know that many wives, or indeed husbands who are the victims of violence at the hands of their wives, apply for barring orders but they may not lead to court proceedings. The issuing of a summons and the obtaining of a protection order may act as the catalyst for a couple going to mediation and effecting a separation by agreement without a court hearing. Negotiations between lawyers may result in a separation or the issuing of proceedings can occasionally, particularly in cases where alcoholism is a problem, result in the alcoholic spouse acknowledging the need for treatment and ultimately the problem may be resolved. Therefore, there are a variety of reasons for barring orders not being granted. It is not always the case of a judge simply dismissing the application. A reasonable proportion of cases are resolved by the couple ultimately separating by agreement and in other cases the couple may reconcile when a spouse recognises that he or she has a problem and does something about it. Barring orders play a major role in dealing not only with violence against women and children but other forms of behaviour which place them at risk.
Deputy Woods voiced a reasonable concern and the Minister's response was also reasonable. Part of the difficulty is to ensure a consistent approach on the part of the Judiciary. People are concerned that where a court has the option of granting either a barring or a safety order some members of the Judiciary may be reluctant to grant barring orders, even when the behaviour of a spouse is intolerable. Because of the various approaches taken by members of the Judiciary, there is concern that providing an alternative between a barring and a safety order may result, in some circumstances, in safety orders being granted where a barring order might be more appropriate. On the other hand, some couples may experience great difficulties in marriage, the nature of which would deem it unreasonable to grant a barring order but, for the peace of mind of the husband or wife, a protection order — what will become a safety order under this Bill — would be more appropriate. At present the courts cannot do that. Some judges of the District Court who are unsure about whether they should grant a barring order adjourn the case for three or six months before making the ultimate decision and, as an interim measure, grant a protection order. To an extent, protection orders are being used in the way safety orders may be used under the provisions of the Bill. The kernel of the problem does not relate to the formula of words used in the legislation. There is a need to formalise a procedure that would allow the courts to grant safety orders in circumstances where difficulties in the home fall short of warranting the granting of a barring order. It is important to ensure that members of the District Court hearing barring applications adopt a uniform approach and that they have full insight to family problems, especially the difficulties for children, and how the behaviour of one spouse may detrimentally impact not only on the safety of the other spouse and children but on their welfare. There is still work to be done to ensure that such a uniform approach is adopted.
I do not wish to be misunderstood in this regard. There are extremely good judges at District Court level who on a daily basis deal sensitively and with great insight with family problems. However, some members of the Judiciary lack that sensitivity and insight and do not always approach family problems in a proper manner and occasionally may execerbate the problems with which they are asked to deal.
Deputy Woods's amendment is too blunt an instrument and a simplistic approach cannot be taken to this matter. It would be wrong to direct courts not to hear applications for barring and safety orders at the same time because if it is believed a spouse is under some threat but he or she cannot provide the necesary evidence to back up the allegations, the court may reasonably conclude that a safety order is an appropriate way of dealing with the matter and far superior than simply refusing to grant a barring order and not extending protection to the spouse concerned.
Deputy Woods raised a serious issue which was a matter of concern when the Bill was originally drafted approximately two years ago. We need to direct our concerns at ensuring a uniform judicial approach and that the court welfare services have sufficient staff to prepare family assessment and background reports so that where possible the fullest information is available to District, Circuit and High Courts in deciding on the granting of barring orders.
Deputy Shatter has summarised this matter particularly well. There is a problem here to which it is difficult to find a solution. The disadvantage in our amendment is that a separate procedure would be necessary. If a person failed to get a barring order they could immediately apply for a safety order. I accept the points made in that regard and highlight the difficulty that exists. Deputy Shatter referred to the difficulty in terms of the courts adopting a consistent approach. The figures given by the Deputy are in the order of what I suggested earlier. Less than half the number of barring orders applied for are granted, but I will not pursue the reasons for that. The Minister said that in free legal aid cases 90 per cent of barring orders are successful.
Death of Deputy Brian Lenihan.
I wish to convey the very sad news that our colleague, Deputy Brian Lenihan, has passed away. On behalf of the committee I convey our sincere sympathy to his family and to the Fianna Fáil Party. He served his party and his country well. I know that Members will wish to be associated with those words of sympathy.
I would very much like to be associated with those very kind words of sympathy. Deputy Lenihan was an extraordinary individual. He was respected and loved by all sides of the House, particularly because of his wit, his generous heart and his interest in the country. He was a man of great intelligence and intellect, widely read and capable of dealing with all issues on a comprehensive basis. He had a long and distinguished service in Dáil Éireann and did a great deal of hard work which is recorded in the proceedings of the House. He served in several Ministries, perhaps most notably as Minister for Foreign Affairs.
The late Deputy Lenihan had a tremendous and deep commitment to and interest in the country. He had a sense of feeling and understanding and even when dealing with difficult Estimates he always had a generous heart. He will be very sadly missed not only by those who were close to him but by people throughout the country.
I wish to be associated with the expression of sympathy. I am saddened to hear of the death of Deputy Lenihan. In recent weeks reports of his health varied, the most recent being that he was fighting back very well, and for that reason it is even more disheartening to hear that he will no longer be with us. I have not known him as long as Deputy Woods but I have known him a long time, and apart from my association with him in Dáil Éireann we were, for a period, colleagues on Dublin County Council, a fact that is not often remembered. His dedication and wit were always very noticeable. He was a good friend to everybody and could talk on any subject. He was always ready to stop and have a chat and could get on with people in all circumstances. He will be sadly missed. Ar dheis Dé go raibh a h-ainm.
I wish to join with other Members in extending deep sympathy to Deputy Lenihan's widow and family, to all his friends and to the members of the Fianna Fáil Party. Having spent four years in the Seanad, Deputy Lenihan was elected to Dáil Éireann on the same day as me in 1961. As I learned from people who knew him better than me in those early days, he was looked upon as a future leader of Fianna Fáil, and I have no doubt he would have been were it not for his failing health. He was an affable, friendly man and it was easy to get to know him. I often expressed the opinion that he probably had the ability and capacity to be a member of any party and I would have accepted him as a party colleague. He had a very broad vision of what politics were about. He was not narrow-minded or bigoted, nor did he show rancour in his speeches in the House or outside. In many ways he was part of the establishment for almost 40 years. Being around Leinster House for such a long period many people knew him well.
To me, Deputy Lenihan was a very close personal friend, a person to whom I could talk in confidence. If he was told something in private it remained private. On a number of occasions I noticed that he could have publicly used information he received from personal conversations with colleagues of mine in the Fine Gael Party, but, as is characteristic of a good public representative, he refrained from doing so. I am proud to have served with him in this House. May he rest in peace.
Like other Members I am very saddened to hear the news of Deputy Lenihan's death. I heard this morning that he was very ill but nevertheless it is a great shock that somebody who fought so valiantly against ill health in recent years has died. It is a great tribute to him that he recovered so well from his operation and everybody hoped he would rally again on this occasion. I extend my condolences to his family, his many friends and members of the Fianna Fáil Party. Deputy Lenihan was synonymous with Irish politics; it is difficult to imagine Irish political life without him. He will be immensely missed. He was loved and appreciated by Deputies on all sides of the House for his personality, kindness and genuine warmth. I hope his family will find some degree of succour from the fact that he is remembered with fondness.
My colleagues paid eloquent tributes to the late Deputy. As Chairman of the Labour Parliamentary Party I fully support all the nice things that have been said about my late colleague. May he rest in peace.
I reiterate what other Members said about the late Deputy Brian Lenihan who was a personal friend. He was a pillar of the Fianna Fáil Party, a larger than life figure. As generously said by Members on this side and on the Opposition, Brian served his party in a number of senior ministries and senior positions in Opposition with great distinction. As those who read his speeches or the book reviews he wrote in recent years are aware, he was a man of great learning and erudition.
His career and popularity can be summoned up by reflecting that in an era when politics have to some extent fallen into disrepute and known political figures tend to be unpopular and regarded with cynicism outside and sometimes within their constituencies, the late Deputy Brian Lenihan was a major figure on the political landscape who remained popular and was well thought of from one end of the country to the other. I extend my sincere sympathy to his wife and family.
While I knew Brian was ill for the past number of months it is with great shock that I heard today of his sad passing. I have only known him well for the past six years since I became a Member and I always found him most helpful. He was always willing to give advice and treated all Members equally. He did not talk down to new Members but gave them great support.
While I knew him well for only the past six years, I knew him for a longer period than that through my involvement with the Fianna Fáil Party. As rightly said, he was a pillar of that organisation down through the years. My father was also a great friend of Brian's. He told me that Brian did not have a vindictive bone in his body. I found that hard to believe of any politician, but since I became a Member and got to know Brian I found he was universally popular with Members on all sides of the House. I remember the standing ovation he received the day he returned to the House following the time of his illness when he travelled to America for an operation and was absent from the House for some time. That standing ovation was not given just because he returned to the House, it was sincerely given, a warm welcome back to the House and showed the esteem in which he was held by all Members. I offer my condolences to his wife Ann, his son, Conor, who works in the House and to the rest of the Lenihan family.
I add my voice to that of my colleagues who have paid tribute to the late Deputy Brian Lenihan. It was a great shock to hear he passed away so quickly.
Coming from Westmeath the name Lenihan has been synonymous with politics in our area for a long time. His late father, Paddy, represented Westmeath for some time and although Brian did not represent that county the Lenihan name lives on there through Deputy Mary O'Rourke.
Brian was a larger than life character. He was a great personality and very entertaining. One could talk to him at length, he was full of wit, had a great insight into life and he will be missed for that.
Brian was a noted sportsman and if I remember correctly he played amateur football for Ireland in his youth. He made his name as a soccer player in Athlone many years ago. I extend sympathy to his wife, family, his sister, Mary and the extended Lenihan family. Brian had a good life. He served politics well in this country, held many senior ministries and we all have fond memories of him.
Like my colleagues, I wish to express sympathy to the wife, family, many friends and the Fianna Fáil organisation on the untimely death of Deputy Brian Lenihan. I knew him only during the last six years since I became a Member but, as an observer of politics for many years before that, I realised he was a colossus in the political arena. That has been proved by his track record in politics in various ministerial portfolios and in latter years by the brave manner in which he bore his illness. The courage and fortitude with which he went about his daily life was a source of inspiration to all of us who are faced with minor adversities compared to those which were faced and overcome by Brian for a long time. I wish to be associated with the vote of sympathy to his wife, family, the Fianna Fáil organisation and his many friends throughout the country.
Members rose in their places.
Domestic Violence Bill, 1995:
Committee Stage (Resumed).
Amendment No. 10, by leave, withdrawn.
Amendment No. 11 not moved.
Section 2 agreed to.