I move amendment No. 47:
In page 8, before section 10, but in Part III, to insert the following new section:
10.—(1) On application to it by a parent (in this Act called the "applicant parent"), the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of any child so requires, by order (in this Act called a "barring order")—
(a) direct the other parent (in this Act called the "respondent parent"), if residing at a place where the applicant parent or the child resides, to leave that place, and
(b) whether the respondent parent is or is not residing at that place, prohibit that parent from entering that place until further order by the Court or until such other time as the Court shall specify.
(2) A barring order may, if the Court thinks fit, prohibit the respondent parent from using or threatening to use violence against, molesting or putting in fear the child and may be made subject to such exceptions and conditions as the Court may specify.
(3) A barring order may be varied by the Court on the application of either parent.
(4) On or before the expiration of a barring order a further barring order may be made with effect from the expiration of the first-mentioned barring order.
(5) If, between the making of an application for a barring order and its determination, the Court is of opinion that there are reasonable grounds for believing that the safety and welfare of any child so requires, the Court may make an order (in this Act called a "protection order") that the respondent parent shall not use or threaten to use violence against, molest or put in fear the child.
(6) A protection order may be made notwithstanding that the summons in relation to the application for a barring order has not been served on the respondent parent.
(7) A protection order shall cease to have effect on the determination by the Court of the application for a barring order.
(8) A barring order or a protection order shall take effect on notification of its making being given to the respondent parent.
(9) Oral communication to the respondent parent by or on behalf of the applicant parent of the fact that a barring order or a protection order has been made, together with production of a copy of the order, shall, without prejudice to the sufficiency of any other form of notification, be taken to be sufficient notification to the respondent parent of the making of the order.
(10) If the respondent parent is present at the sitting of the Court at which the barring order or protection order is made, that parent shall be taken, for the pruposes of subsection (8), to have been notified of its making.
(11) An order varying a barring order shall take effect on notification of its making being given to the parent other than the parent who applied for the variation, and for this purpose subsections (9) and (10) shall apply with the necessary modifications.
(12) The Court, on making, varying or discharging a barring order or on making or discharging a protection order, shall cause a copy of the order in question to be given or sent as soon as practicable to the applicant parent, the respondent parent and the member of the Garda Síochána in charge of the Garda Síochána station for the area in which is situate the place in relation to which the application for the barring order is made.
(13) Non-compliance with subsection (12) shall not affect the validity of the order.
(14) A respondent parent who contravenes a barring order or a protection order or, while a barring order is in force, refuses to permit the applicant parent or any child to enter and remain in the place to which the order relates or does any act for the purpose of preventing that parent or child from doing so shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding six months, or both.
(15) Subsection (14) is without prejudice to the law as to contempt of court or any other liability, whether civil or criminal, that may be incurred by the respondent parent.
(16) A member of the Garda Síochána may, on complaint being made to him by or on behalf of the applicant parent, arrest the respondent parent without warrant where the member has reasonable cause for believing that the respondent parent is committing or has committed an offence under subsection (14) or (15) of this section.
I was very surprised that, in this section, there was nothing dealing with changing the law with regard to barring orders. I tabled this amendment — I know there are other related amendments — in an attempt to try to redress what is a very unsatisfactory position. I will explain. At present the only person who can obtain a barring order is a spouse. That is obtained under section 22 of the Family Law (Protection of Spouse and Children) Act, 1976. That order will bar a spouse for reasons of violence to a spouse or to the children. It is a very useful remedy, a very useful relief which, over the years, has proved to be very positive. At present there are circumstances in which there are children — and I deal specifically with children for the purpose of this amendment — living in unions that are not based on marriage. For example, unmarried parents living together either because they do not want to get married or that they cannot get married because of one or other of them may have been married before. Of course divorce is not available here to enable people like that to remarry. That is the first question — the children of two parents living together. There are also children living with one parent when the other partner in the family relationship may not be the father. These children have the same needs as the children of, say, a conventional marriage. In such instances mothers have gone down to the District Court to attempt to get barring order, where there is violence, a risk of incest or sexual abuse of the children. They have left actually crying because the District Court cannot accommodate their needs under that legislation. It just does not cater for people who are not married to each other.
I have taken this amendment directly from the 1976 Act in an attempt to extend the same protection to these children as exists at present for the children within a conventional marriage. I have to say that this particular provision has been recommended twice by the Law Reform Commission, first in their Report on Illegitimacy. They deal with this specificallly, not in the context of giving a parent the right — regardless of whether they are married to the other parent — but a right to the child itself. I will read section 393 of the Report of the Law Reform Commission on Illegitimacy which says:
On the basis that the concept of illegitimacy is to be abolished, the question arises as to whether section 22 should be amended.In our view the proper approach would be for the legislation to enable, not only a spouse but also a child of any person, whether that person is or is not married, to apply to the Court under the section for a barring order. This approach is consistent with the philosophy we have adopted elsewhere in this paper that legal rights for the benefit of children should be capable of being enforced by the children themselves.
That was their approach in their 1982 report. But they make a further recommendation in their consultation paper on child sexual abuse. They specify at paragraph 2.31 who may be barred and say:
We are aware of several cases of sibling abuse. Where the sibling abuser is young, a barring order may not be appropriate, and care or even criminal proceedings (within the juvenile justice system) may have to be contemplated.
They go on to say — dealing with a step-father:
One of the strongest risk factors, having a step-father, more than doubles a child's vulnerability. Virtually half the girls with step-fathers were victimized. Moreover, this risk factor remained the strongest correlate of victimization, even when all other variables were statistically controlled. Apparently there is substance to the notion that step-fathers are more predatory towards their daughters than are fathers. In our study, a step-father was five times more likely to sexually victimize a daughter than was a natural father.
They conclude that in view of those findings the arguments for the extension of barring orders to step-parents, including unmarried persons cohabiting with a parent, seem unanswerable.
I am suggesting that we should use this legislation to equalise the protection for all children regardless of whether their parents are married to each other. I feel it is appropriate and very necessary.