I move amendment No. 19:
In page 8, subsection (3)(c), line 15, after "resides" to insert ", works or attends for educational purposes, or such other place as the court may specify".
This amendment is similar to previous amendments I proposed. It represents an attempt to tie down the circumstances in which a barring order may apply to the respondent. I would like to hear the Minister's views.
Amendment No. 19 relates to barring orders and would have a similar effect as amendments Nos. 6 and 7 which related to safety orders. It proposes that a respondent be barred from places where the applicant works or attends for educational purposes. I indicated that I thought this was too wide and am not prepared to accept it at this stage.
Did the Minister say he would bear it in mind for Report Stage?
I said I would but, at the moment, I am not particularly favourably disposed towards it. It might be too wide but I certainly will have a look at it.
I move amendment No. 20:
In page 8, subsection (3), between lines 15 and 16, to insert the following:
"(d) communicating with, or attempting to communicate with, the applicant or any dependent person by means of telephone without the express permission of the application;".
Section 3(2) states:
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 application or any dependent person so requires, it may, subject to section 7 and having taken into account any order made or be made to which paragraph (a) or (d) of subsection (2) of section 9 relates, by order (in this Act referred to as a "barring order")—
(i) direct the respondent, if residing at a place where the applicant or that dependent person resides, to leave such place, and
(ii) whether the respondent is or is not residing at a place where the applicant or that dependent person resides, prohibit that respondent from entering such place until further order of the court or until such other time as the court shall specify.
Section 3(3) states:
A barring order may, if the court thinks fit, phohibit the respondent from doing one or more of the following, that is to say:
There follows a series of paragraphs to which we ask the Minister to add the following:
(d) communicating with, or attempting to communicate with, the applicant or any dependent person by means of telephone without the express permission of the applicant;
This subsection contains a list of conditions which may be imposed by a court on a barring order. The proposed paragraph (d) is intended to allow the courts to impose a condition preventing nuisance telephone calls or continual harassment of the applicants by telephone. These are acts which might not otherwise constitute a breach of a barring order since they do not involve the respondent being in the vicinity of the applicant's premises.
This is an extremely reasonable amendment and I support it. We are all aware of nuisance telephone calls and how the telephone can be used as a means of intimidation.
I would agree with the amendment if it applied specifically to nuisance calls but it states: "communicating with or attempting to communicate with . . .". What happens if a person wants to contact the applicant without his or her express permission? The first telephone call might be to ask if they would take a call. Nuisance telephone calls are disastrous and should be ruled out. In this day and age, someone might genuinely want to communicate with the person to get information. It is different if they continually do it.
Subsection (3) (b) of the section is wide enough to cover the situation contemplated by amendment No. 20 as it provides that a barring order may, if the court thinks fit, prohibit the respondent from molesting or putting in fear the applicant. The court may attach to that prohibition exceptions and conditions. The amendment is not necessary and, for that reason, I do not support it. The provisions contained in paragraphs (a), (b) and (c) are sufficiently wide. Paragraph (b) deals with molesting while paragraph (a) deals with using or threatening to use violence. The latter covers threats which are made personally or by telephone. Molesting by telephone is already prohibited. The section is wide enough as it stands.
In this modern age, it is easy to put fear into people through telephone calls and harass or, as the Minister said, molest a person in that way.
To put them in fear.
If "putting in fear" includes harassment by means of repeated telephone calls, it would satisfy our requirements. All Deputies are aware of the pressure the telephone can cause. When a woman is living on her own with children, that pressure becomes greatly enlarged and fear can develop.
However, I will accept it if the Minister is happy that the phrase "putting in fear" would also cover fear of what may be regarded as nuisance, repeated, threatening or harassing telephone calls, and withdraw the amendment.
Amendments Nos. 22 and 23 are alternatives to amendment No. 21 and all may be discussed together. Is that agreed? Agreed.
I move amendment No. 21:
In page 8, lines 18 to 30, to delete subsections (4) and (5) and substitute the following:
"(4) In considering an applicattion under this section in respect of a person who is an applicant by virtue of paragraph (b), (c)*, (d)* or (e)* of subsection (1) the Court shall have regard to the ownership of the place where the applicant and any dependent person reside and if the respondent has a legal or beneficial interest in that place and the applicant has no such interest or if, in the opinion of the Court, the applicant's interest is considerably less than that of the respondent, then the court shall not grant the application unless it is of the view that in all of the circumstances, including the respective needs and resources of the parties and the needs of any dependent person residing in that place, it is just and equitable to do so."
As section 3 (4) currently stands, a cohabitee cannot get a barring order against a partner if that partner owns the premises in which they reside, or owns a greater part or a greater share than the applicant. This is inherently unfair, as it links a person's right to be protected against serious domestic violence to their ownership of property, and makes a financially dependent person even more vulnerable.
The proposed amendment alters section 3(4) to the effect that the court would no longer be prevented from making a barring order in these circumstances, but would be obliged to consider the ownership of the property in which the parties reside, and should only grant the order if, in all the circumstances, it is considered just to do so. In particular, the court should look to the needs and the means of both parties, and whether there is any dependent child of a couple.
Presumably, the subsection as currently drafted is intended to protect a respondent's property rights, which are guaranteed under the Constitution. However, the amendment gives the court the flexibility to balance the respondent's property rights against the rights of the applicant and the rights of the children to bodily integrity, which is another of the personal constitutional rights to maintain them in safety and to keep them safe from physical attack. The amendment would allow the court to make this decision dependent on the circumstances.
Amendment No. 22 in the name of the Minister is different from amendment No. 21. It does not address the basic problem, to protect the economically dependent partner. Instead, it is more a technical kind of amendment which affects the rules of evidence, making it slightly easier to prove that an applicant has an interest in the home. In that sense, it would not meet our basic concern regarding the section. However, I will be interested to hear the Minister's views.
The most fundamental reform introduced in the legislation is to extend the option of barring orders to cohabitees. The section as drafted, and as proposed to be amended by the Minister, will leave us in a position where possibly over 90 per cent of cohabitees will not be able to avail of the extension of barring orders to cohabitees, because of the way the legislation is drafted.
I have come across many cases of cohabitation, but I have not come across any where the interests of the cohabitees were equal legally. If one takes the typical example of a couple living in a local authority home under a tenancy from the local authority—they may be a tenant or on tenant purchase—and if their marriage breaks up and somebody else moves in with them, then the original tenant is still the person in whose name the tenancy is made, or perhaps it is made in the name of him and his wife. In the case of tenant purchase, the same situation applies.
If somebody is living in a private house whose marriage breaks up and somebody else moves in with him, the usual and almost invariable practice is that the occupier of the property does not move to give the cohabitee equal ownership. It would be a strange situation if, before somebody moved in with the resident of a house, the resident was told that the house would have to be put in joint names or that a similar legal interest was to be provided to the person moving in to enable that person to avail of the new barring order legislation. This would hardly be an auspicious start to a relationship.
I realise the constitutional difficulties the Minister may have, but amendment No. 21 meets and overcomes such difficulties. Has the advice of the Attorney General been ascertained on this aspect? I am not sure what, if anything, the amendment in the name of the Minister adds to the legislation. The basic provision remains in place in that in order for a cohabitee to be able to get a barring order, the cohabitee must have a legal beneficial interest in the family home with the respondent.
The amendment in the name of the Minister provides that if the applicant gives evidence she — it is usually she — has an equal legal or beneficial interest with the repondent, such evidence will be admissible. However, what does this add to the legislation? If somebody does not have an equal interest, it will not make any difference if he or she says so; it would be rebutted by the lawyers acting for the respondent. One is then back to square one.
Submissions were received from Women's Aid and other organisations that addressed the committee, where another fundamental difficulty was outlined on the issue of who will decide on who has a property interest and the extent of the interest. Proceedings of this kind are to take place before the District Court. Is the District Court now being given jurisdiction to decide the extent of a person's interest in property for the first time in the history of the State, or, if a dispute of this nature arises, will the matter have to be referred to the Circuit Court, which will ultimately decide the matter? What are the implications of this from the point of view of delay and so on?
I hope I am misreading the amendment in the Minister's name. If I am not, then it appears to add nothing to the legislation, and all the problems submitted by the various organisations to the committee remain. In this respect, more than 90 per cent, perhaps as much as 99 per cent, of cohabitees will be precluded from availing of the worthy and welcome reform the Minister intends to introduce today.
I agree with Deputy O'Dea. The Minister's amendment does not address the issue we sought to address. He said on Second Stage that he thought there would be constitutional difficulties in granting a woman an order which barred a man from property which he owned. The various groups that appeared before the committee to discuss this Bill considered this to be an extremely important part of it. It is the crux of the Bill as far as I am concerned. Deputy O'Dea is right in saying the number of people affected by this constitute a huge percentage of those who will seek barring orders. It is a case of trying to balance the constitutional difficulties perceived by the Minister with regard to property rights vis-�-vis the bodily integrity of women and children. There is a perceived difficulty and the purpose of my amendment is to overcome that. It is cautious but it addresses the difficulty the Minister outlined on Second Stage.
We must look at the issue of the bodily integrity of the women and children involved. We must ask about the rights of children in a relationship. Are they to be forced into homelessness because of their father's property rights? That is the way that should be taken rather than the more cautious way taken by the Minister. I read the Minister's speech on Second Stage very carefully and I understand his reasoning. However, the recommendations from the various groups that appeared before the committee suggested that the Minister was being over-cautious in his approach. My amendment seeks to tread carefully through this maze and to arrive at a solution that will ensure that the bodily integrity of women and children is not violated. It is a cautious amendment.
The advice available to me and which I outlined on Second Stage is that a provision on the lines envisaged by amendment No. 21, which would allow a respondent other than a spouse with an ownership interest to be barred on the application of a person with no such interest or with a lesser interest than the respondent, might not survive constitutional scrutiny. This is so by virtue of the fact that a barring order would constitute an infringement on that person's property rights which the State and its laws must respect under Article 40.3 of the Constitution. The position is different where parties are married. An infringement of a spouse's property rights is presumed to be justified on the basis that the rights of a family founded on marriage are protected by the Constitution and take precedence over property rights.
This difficulty in relation to cohabitants was recognised in the report of the Second Commission on the Status of Women. It recommended that barring order legislation should be extended to cover a situation "where the person seeking the order is the owner or tenant of the property". It must also be remembered that such persons will not be left unprotected. The safety order remedy under the Bill will be available to such persons as will the strengthened powers of arrest for gardaí also provided for in the Bill.
I recognise the efforts made by Deputies Woods and Keogh in their amendments to try to get around the constitutional difficulties. I assure the Deputies that when preparing the Bill, I made similar efforts. However, those efforts were to no avail because I was advised that the constitutional difficulties would remain. In short, I am not prepared to run the risk that the many good measures in this Bill could fall by the wayside if one provision was found to be unconstitutional. I have referred the problem to the Constitutional Review Group to establish its thinking in this area. The matter can be examined further in the light of its considerations, I regret that I am not in the position to accept amendments Nos. 21 and 23.
The purpose of amendment No. 22 is to render admissable in evidence a statement by the applicant for a barring order that he or she has an interest in the home to which the application refers which is not less than that of the respondent. The weight to be given to such evidence will be a matter for the court to decide. The amendment will, in effect render admissable in evidence such statements which might not otherwise be admissable. Deputies will agree that it will better facilitate the hearing of a case. Deputy O'Dea is right in saying the District Court under this provision would determine the question of ownership of property. That is provided for in section 14. The Deputy is not right in saying it is a novel situation for the District Court. There is at least one other instance and possibly more of cases where the District Court has jurisdiction to do just that and does it.
Subsection (b) of amendment No. 22 is an evidential matter to avoid the necessity of an applicant having to produce title deeds, documents and so forth which could involve expense and difficulty. It enables the applicant's case to be set up on evidence to the effect that he or she believes they have a beneficial interest in the property. Of course, that evidence can be rebutted and the weight of the evidence must be assessed but at least it is admissable in evidence to set up the case. It is necessary and desirable that this evidential provision should be included.
The kernel of the Bill is the extension of the right to apply for a barring order to a cohabitee. It is virtually valueless to attempt to introduce such legislation while introducing a restriction that will effectively exclude 99 per cent of cohabitees. I accept the Minister's bona fides that he tried to do more when the legislation was being drafted but has he referred Deputy Woods's and Deputy Keogh's amendments to the Attorney General for advice? Has he been advised that the amendments will not work or that they are constitutionally difficult or dangerous?
The Minister will recall that the committee received submissions from a number of expert groups. They made proposals broadly along the lines suggested by Deputy Woods and almost exactly along those suggested by Deputy Keogh. I understand the Minister's comments on the evidential matter but I cannot understand what his amendment adds to the Bill. He says it will eliminate the need to go to the expense of securing title documents and so forth. However, it will not. In practice the applicant will be informed that she must have an equal beneficial or legal interest in the property. She can tell the court she has an equal interest because her name is on the title deeds but if the respondent denies this, what happens? Surely the applicant's word will not be taken. She will then have to go to the expense and trouble of getting the title deeds, a course of action which the Minister's amendment would seek to exclude.
I cannot envisage a situation in which it will be accepted that somebody has an equal legal and beneficial interest in property which is disputed simply because the person says so.
Frankly, I cannot see a situation whereby somebody will be taken as having an equal legal and beneficial interest in property which is disputed, simply because they say so. Perhaps even now on Report Stage the Minister should get a legal opinion from the Attorney General on the two proposed amendments, to see if they meet the constitutional difficulties. Otherwise the kernel of this Bill, which as I said, extends the right to apply for a barring order to cohabitees will exist only on paper. It is a cosmetic exercise which will achieve nothing in practice. Cohabitation is growing and will continue to do so, particularly if the divorce referendum is not passed. In that case, marriage will continue to be a lifelong contract and we know that because of that, fewer people are getting married, they are choosing to cohabit. We are dealing with a growing number of people and it is right and just that the Minister should seek to provide for them but it is of little value to provide for them in a way which excludes 99 per cent of cohabitees.
Deputy O'Dea is getting a little carried away when he says that 99 per cent of cases of cohabitants will be excluded under this provision. There is no reason to suppose that the cohabitant who takes in the other party is necessarily the party who will be bringing the application. There are many cases where the provisions of the Bill will come into play.
Deputy O'Dea suggests that I refer these two amendments for examination or consideration by the Attorney General. I assure the Deputy that I did not wait for these amendments to be tabled before this aspect of the matter was referred by me for intensive examination by the Attorney General. It was exhaustively discussed before either of these two amendments was thought of by Deputy Woods or Deputy Keogh. While the Bill was in gestation and preparation and all aspects of it were being examined it was gone through in great detail on this very point with the Attorney General and the result is the format of the Bill as it now presents.
The reason for it is understandable. For example, where a man owns or is tenant of a house which is in his sole name and a woman comes to cohabit with him in his house, he may become violent towards her and she brings an application against him for a barring order to bar him from his house. He may say that although they have been cohabiting until now, as of now they are no longer cohabitants. He may say; "This is my house, please leave. We are no longer cohabitants". A man cannot say that to his wife; a woman cannot say that to her husband, but cohabitants do not have the connection that spouses have. He can say that the house is in his name and protected under the Constitution. That is the difficulty. I assure the commitee that all these aspects were very carefully considered. I am not prepared to risk this important Bill being found suspect from a constitutional point of view on account of this one provision and my advice is that that would be so. I regret that, to be perfectly honest, but it is the position.
Deputy O'Dea is not right in regard to the evidential point in part (b) of my amendment. He is right to the extent that there could well be cases where the question of ownership or tenancy of a property would be hotly in dispute and that it would be necessary for the court to get the deeds and examine them to determine those issues. That will arise in a very small number of cases. There will be a large number of cases when these applications are met, where the respondent does not appear. That happens in a large number of these cases, it could perhaps amount to one third to half the cases
The applicant woman would have to prove in court that she has at least an equal interest in the property. If she is put on full proof, in every case she will have to establish proof of her ownership. The normal way of doing that under the laws of evidence, as I am sure Deputy O'Dea knows, would be by production of the title deeds. We want to avoid having to put a person to that trouble in every single case as it can be quite a nuisance. The deeds, for example, could be deposited on mortgage in a building society and it takes time before they are released. Applicants are charged fancy prices for the facility of taking up the title deeds even on loan.
We are providing this simple, easy evidential procedure where the applicant says that they believe they have a particular interest in the property and that is admissible in evidence. If we did not say that, it would not be admissible and they would be sent off to get their title deeds. That makes it admissible and will make it possible for very many people to immediately get their proceeding under way and get their order. Even in cases where the respondent does appear, he may well not dispute ownership of property. It may be indisputable because it probably would be true that they are joint owners which would be the usual provision. It is very usual among cohabitants to buy or rent a property when they agree to cohabit so they would be joint owners. In those cases also, he will not dispute it.
In some cases the respondent will dispute ownership of property. In that case it may well be that full evidence would have to be gone into. That cannot be avoided; if a key important issue like that is in dispute the only way it can be resolved by the court is after a full and exhaustive hearing on full evidence. This provision will be in ease of very many applicants and I invite Deputy O'Dea to agree. He is a reasonable person. I am sure that it will be helpful to many people and I am sure he will welcome it.
I appreciate the Minister's points. There is a difficulty—I referred to it at the outset—in the conflict between the property rights and the rights to bodily integrity, for instance. Nevertheless, the situation as it emerges now is that a married owner of property can be barred while an unmarried owner or occupier cannot. That in a way is almost a discrimination against married people, when you look at it from that point of view.
It is more of a recognition of the difference between the two categories of people living together. They are different.
Yes, but at the same time from the point of view of the owner of the property, it means that if the owner of the property marries a barring order can be taken out against him. If the owner does not marry and remains as cohabitee, a barring order cannot be taken out against him. It was to deal with that situation and the situations in which women particularly are under stress and pressure and are deserving of and in need of a barring order that we put down this amendment.
There is the question of having barring orders of very limited duration in situations like that, or having different conditions applied to the barring orders, but it might be that as distinct from merely a safety order, a barring order could apply for very short periods to get over special difficulty. For a start the cohabitees may have been cohabiting for a long time. We have seen quite often on the social welfare side that when cohabitees break up — cohabitees break up as well — they may have two, three or four children. They may have cohabited for a long time and established substantial families as cohabitees. I am very conscious of this because of the figures for lone parents, which included unmarried mothers. The unmarried mothers component was always inflated by the number of people who had cohabited for a long time and had three or four children but this was because people in long-term relationships were included in the figures.
A real danger must be involved in the case of a barring order. Having a barring order of even a limited duration to deal with a dangerous situation followed by a safety order would at least provide time and opportunity to address the problem. I ask the Minister to consider this.
I appreciate the Minister's difficulties. However, it is our job to find ways around them. It is amazing how so many ways of dealing with situations and overcoming difficulties have been found, notwithstanding the claim that there is a constitutional bar on action in an area.
The Minister might look further at the conflict between the rights to property and bodily integrity, including the rights of children to bodily integrity from the point of view of the conditions involved. I accept the Minister is referring this issue to the constitutional review group and in the fullness of time this group will give its overall considerations but in the context of this Bill, perhaps the Minister will consider these issues before Report Stage and on the basis that he may do this I am happy to withdraw amendment No. 21.
I see no definition in the Bill of "cohabiting" or "cohabitees". What would happen if somebody moved into a beautiful mansion for a week and was assaulted? There must be some time limit. Deputy Woods spoke about somebody cohabiting for 20 years. That indicates a definite arrangement and agreement between two people. Is there any definition of how long a couple must live together to be officially regarded as cohabiting.
The Minister did not want to have that in the Bill.
This is where the problem lies. How long must people cohabit before they can claim? If a person does not have a claim to a house originally, is it not difficult to seek a barring order against the owner of the house after three weeks?
A couple must have been cohabiting for six months out of the previous nine months.
Deputy Woods stated that it is an advantage to be married. I would like to think this is so.
This is why we are bringing forward the divorce referendum which I hope will be passed with the help of Deputy Woods. This is to enable people to get married.
We seem to be bringing about a situation where cohabitees will have more advantages than married people.
There are many advantages in being married.
Of course. This is what the divorce referendum is all about.
I differ completely on this.
I am sure Deputy Browne will be well able to support my amendment because it covers the point he raised about the length of a relationship. My amendment proposes that the court should take into account the nature and duration of the relationship between the parties. I am sure this would cover the Deputy's difficulty.
Deputy Woods and I understand what the Minister sees as constraints put on him by the Constitution and we are trying to get around this as best we can. The Minister gave the example of two people cohabiting. I want to take this a step further. A couple may cohabit for a number of years, they may have children and may to all intents and purposes be a family. However, the applicant may not have a beneficial interest in the property. The Minister spoke about the safety of children and that it is imperative under the Constitution to look after them.
My amendment refers to"... where in the opinion of the court, the safety or welfare of the applicant or dependent person so require." How can we balance property rights against the rights of children in these circumstances? I would be happy if the Minister agreed to re-examine either my amendment or that of Deputy Woods in this light. My amendment aims to get around a constitutional difficulty perceived by the Minister and I believe this approach is sound. We are all on the same side on this issue. If there is a formula which can be agreed, I would be delighted. I am not hung up on it being the one I have proposed. The rights of cohabitees who have no interest in their homes, to barring orders, are the fundamental issue as far as the Bill is concerned. I ask the Minister to examine the two amendments before Report Stage and seek the view of the Attorney General.
Would the tenant of a council house be the equivalent of the owner of private property?
Yes. We are all on the one side on this issue. I assure Deputy Keogh and all members that I have looked at all aspects of this in consultation with the Attorney General but, unfortunately, there is no way around it. We also looked at the possibility of a limited barring order, as Deputy Woods suggested, but this is not possible. At the request of Deputies I will refer the issue back to the Attorney General having regard to what they have said but I fear the end result will be the same.
Would it be possible to have a response to the amendments from the Attorney General through the Minister? Sometimes there may be solutions which we do not see.
My response will incorporate the opinion I will receive. My advice is that to deal with the matter in this way might not survive constitutional scrutiny and I cannot risk that.
Deputy Woods has agreed to withdraw amendment No. 21 on the basis that the Minister has agreed to reconsider the issue although the Minister is pessimistic about a change in the result.
I move amendment No. 22:
In page 8, lines 18 to 25, to delete subsection (4) and substitute the following:
"(4) (a) In respect of a person who is an applicant by virtue of paragraph (b) or (c) of subsection (1), the court shall not make a barring order in respect of the place where the applicant or dependent person resides where the respondent has a legal or beneficial interest in that place but—
(i) the applicant has no such interest, or
(ii) the applicant's interest it, in the opinion of the court, less than that of the respondent.
(b) Where in proceedings to which this section applies the applicant states the belief, in respect of the place to which paragraph (a) relates, that he or she has a legal or beneficial interest in that place which is not less than that of the respondent, then such belief shall be admissible in evidence.".
Amendments Nos. 24, 25, 26 and 34 are related and may be discussed together.
I move amendment No. 24:
In page 8, subsection (6) (a), to delete lines 39 and 40.
Section 3 (6) (a) (iii) states "a person of full age who was, but no longer is, such dependent person, or". This amendment seeks to delete lines 39 and 40 and amendment No. 25 seeks to delete lines 6 to 8. Amendment No. 26 states:
In page 9, between lines 18 and 19, to insert the following subsection:
"(9) A barring order made under subsection (2) of this section for the protection of a dependent person not being of full age shall expire pursuant to subsection (8) of this section or upon the dependent attaining full age (provided the dependent person does not have a physical or mental disability within the meaning of section 1), whichever is the earlier.".
A barring order can be obtained by a child's parents or by a health board to protect a child under 18 years of age. A child under 18 cannot take legal action on his or her behalf. They must act through a parent or guardian. A barring order made to protect a child will have serious consequences for the respondent, who is usually the father, particularly since a barring order will now last for three years.
This amendment is intended to ensure that a respondent does not remain subject to a barring order made to protect a child when that child becomes an adult, particularly since the adult child would be eligible to apply for a safety order in his or her name under section 2 (1) (a) (iv), section 3 (6) (a) (iii) and section 3 (6) (c) (iii), which provides that a dependent person of full age can apply to vary a barring order. This would no longer be relevant if my amendment was accepted since the order would automatically expire on the dependant reaching full age. This is because the consequences for the respondent — the father in most cases — are so serious that the child, on becoming an adult, would be free to make their own decisions in that regard.
The effect of amendments Nos. 24, 25 and 34 would be to disallow a person of full age from applying for variation or discharge of a barring order in a case where those orders had been obtained on his or her behalf as a dependent person within the meaning given to that kind of person in the Bill. Amendment No. 26 makes clear that on no longer being a dependent person a barring order made on a dependent person's behalf would lapse. These amendments raise points which I am prepared to examine further with a view to bringing forward amendments on Report Stage if necessary.
