Select Committee on Legislation and Security debate -
Tuesday, 7 Nov 1995

SECTION 4.

Ms Keogh

I move amendment No. 27:

In page 9, subsection (1)(a), line 40, to delete "an immediate and serious risk of significant harm" and substitute "a serious risk of harm".

As regards interim barring orders, section 4(a) states that "there is an immediate and serious risk of significant harm to the applicant or any dependent person if the order is not made immediately,". Amendment No. 27 seeks to delete "an immediate and serious risk of significant harm". Does the word "immediate" mean tomorrow or next week? What is meant by "significant harm"? It is enough to determine there is a serious risk of harm, without using the words "immediate" and "significant". Does "significant" mean that someone's arm must be broken? There is no necessity to include those words in this section. Perhaps the Minister could explain his reasons for including them.

Mr. Taylor

Section 4 provides for the making by the court of an interim barring order pending the determination of an application for a barring order. Such an order can be made ex parte. One of the conditions with which the court must be satisfied is that there is an immediate and serious risk of significant harm to the applicant or any dependent person if the order is not made immediately. The effect of Deputy Keogh’s amendment would be to dilute that condition; in other words, the court would not be required to examine the immediacy of the risk or the significance of the harm.

I would like to make a number of points in relation to the significance of section 4. The Law Reform Commission in its report on child sexual abuse recommended that as far as children are concerned a power to grant an interim barring order should be given to the courts. However, in paragraph 3.35 of that report the Commission states: "We emphasise that if removal of an alleged abuser by a barring order made on an ex parte basis were to be contemplated, it could only be in the most extreme circumstances.” The report also states that the grounds for removing an alleged abuser on an ex parte basis should be the same as the grounds for an emergency care order. In this context, the Child Care Act provides that before the making of an emergency care order there must be reasonable cause to believe that there is an immediate and serious risk to the health or welfare of the child.

Given the effect of an interim barring order, one must ensure that the circumstances of the case in which it can be granted are extreme. I am sure Deputies will appreciate why it is necessary to provide in the Bill that an interim barring order be made only where there is immediate risk of significant harm. An interim barring order ex parte is an extreme measure to meet extreme circumstances.

For these reasons, I am unable to accept Deputy Keogh's amendment.

Ms Keogh

That is disappointing response. Many women are amazed that they must be threatened to a certain extent before a barring order is granted. Is the onus on them to prove the extent of the threat? It is unreasonable to include "an immediate and serious risk of significant harm". Why must we be so careful when we know that people are under serious threat? I do not understand why we cannot accept that there is a serious risk. I am not happy if this means that someone must be under the threat of being struck down in the next ten minutes.

The fact that a serious risk has been determined should be enough. What does the Minister mean by "significant" in those terms? How is that defined? A punch on the nose is serious in many cases, especially in circumstances when children are present.

Chairman

I am sure the Minister agrees that a punch in the nose would cause significant harm.

Mr. Taylor

This amendment is talking about an interim ex parte order. It orders a person out of their home by court order without their knowledge, does not give them any notification that an application is even pending against them and does not give them the opportunity to answer the complaint or say if it is false. Provision must be made for this kind of event but only to cover unusual, exceptional and extreme cases. One could not let a person, acting on their own and without giving notification to or the knowledge of the other person, make an order putting that person out of their home without even giving them an opportunity to answer the complaint or say if it is false.

The Law Reform Commission correctly pointed out that while this circumstance must be covered it is only intended to cover special, exceptional and unusual cases. It is a serious matter to order a person out of their home without giving them an opportunity to answer an allegation which they may claim is false. The subsection is carefully worded to cover that kind of proceeding.

Ms Keogh

I will not press the amendment. It is like the earlier amendment relating to the constitutional protection of people's property. We are terribly hung up on matters like that but perhaps we are not as flexible as we should be in responding to these threats, which are made mainly against women. I am not suggesting the Minister is unaware of the problem but it is a harsh interpretation.

Amendment, by leave, withdrawn.

Chairman

Amendment No. 28 is consequential on amendment No. 27 and both may be discussed together.

Mr. Taylor

I move amendment No. 28:

In page 9, subsection (1) (a), line 42, after "immediately," to insert "and".

Section 4 (1) empowers the court to grant an interim barring order provided the conditions specified in paragraphs (a), (b) and (c) of the subsection are satisfied. Condition (b) specifies that it is likely the applicant will be deterred or prevented from pursuing an application for a barring order if an interim barring order is not made.

I am of the view that it is not necessary to retain that condition because conditions (a) and (c) taken together constitute sufficient grounds to warrant granting an interim barring order. Those conditions are to the effect that there is an immediate and serious risk of significant harm to the applicant or any dependent person if the order is not made immediately and the granting of a protection order would provide insufficient protection. The effect of amendment No. 29 is to delete condition (b) which I feel is not necessary.

Dr. Woods

It seems to cover the situation.

Amendment agreed to.

Mr. Taylor

I move amendment No. 29:

In page 10, subsection (1), to delete lines 1 to 3.

Amendment agreed to.

Question proposed: "That section 4, as amended, stand part of the Bill."

Dr. Woods

This important section provides for the interim order and immediate action, even on an ex partebasis, without the respondent being notified or being present and this is an important development.

Chairman

The concept of an interim barring order is a radical departure.

Question put and agreed to.

Sections 5 to 8, inclusive, agreed to.