This is very important because the power to grant an interim barring order ex parte is essential in certain cases to protect innocent persons in their home. That is an important jurisdiction and, since the Supreme Court decision, the courts have not been in a position to exercise that jurisdiction because that power has not been available to them. In such circumstances, it will be important that the offending party will be ordered to leave the home and it is not practicable, in the circumstances of the case, to require that notice be given to him or her prior to the making of the order. However, as is indicated by the Supreme Court decision, when such an order is made there must be an early return date on which the applicant must show in proceedings, of which the respondent has notice, that the continuation of the interim order is justified in accordance with the statutory criteria. The period upon which we have fixed in the legislation is eight working days.
I now turn to the provisions of the Bill. Section 1 is the substantive provision which substitutes a new subsection (3) for the existing section 4(3). Paragraph (a) of the proposed subsection has three features worthy of comment. These are: first, the provision that an interim order may be made ex parte and the jurisdiction is confirmed; second, the replacement of the phrase “in exceptional cases” in section 4(3) with a reference to “the circumstances of the particular case”; and, third, the stipulation that an interim order may be made ex parte“where the court considers this necessary or expedient in the interests of justice”.
Section 4(3), in its present form and prior to the Supreme Court decision, permitted the making of an interim barring order ex parte or notwithstanding the fact that the originating document or other notice of the application required to be served on the respondent to the barring order application had not been so served. This was a reference not to notice of the application for the interim order but to notice of the application for the full barring order. I have been informed that, in the vast majority of cases, interim barring orders were issued where the notice of the barring order application had yet to be served on the respondent. Even where this notice had been served, it would be rare for the respondent to be aware that, in addition to a full barring order, an interim barring order was also being sought against him or her.
The approach taken in this Bill is to dispense with reference to notice of the barring order application and provide simply that where, having regard to the circumstances of the particular case, the court considers it necessary or expedient in the interests of justice, an interim barring order can be granted ex parte; that is, in the absence of and without notice to the respondent. Where the court decides it is neither necessary nor expedient in the interests of justice to make the order ex parte, it can require notice to be served on the respondent of the application for the interim order.
The approach taken in this Bill is to dispense with reference to notice of the barring order application and provide that where, having regard to the circumstances of the case, the court considers it necessary or expedient in the interests of justice, an interim barring order can be granted ex parte, that is, in the absence of, and without notice to, the respondent. Where the court decides that it is neither necessary nor expedient in the interests of justice to make the order ex parte, it can require notice to be served on the respondent of the application for the interim order. Paragraph (b) of section 1 of the Bill makes a largely similar amendment to section 5(4) of the Act dealing with protection orders. I will refer to that matter later.
The second point about the proposed new subsection (3)(a) relates to the phrase, “having regard to the circumstances of the particular case.” The Supreme Court noted that section 4(3), as it stands, provides for the making of interim barring orders ex parte in “exceptional cases”, but contains no indication of the criteria by which the court is to decide whether a case is exceptional. The merit of the new wording is that it invites the court to assess the circumstances of the case before it. In that respect, it focuses on the individual case before the judge and does not require any determination that the case is exceptional which would imply comparison with other cases.
As regards the phrase "necessary or expedient to do so in the interests of justice", Senators will note that this criterion is already in section 4(3). It also resembles section 17(3) of the Child Care Act, 1991, which was referred to with approval by the Supreme Court in the case to which I referred and which permits an interim care order in respect of a child to be made without notice to a parent where, having regard to the interests of justice or the welfare of the child, the judge so directs.
I now move on to the proposed paragraphs (b) and (c) of the new subsection (3). Applications for interim barring orders, prior to the finding of the Supreme Court, were generally made on a sworn information. However, they were often supported by oral evidence given by the applicant to the judge. I understand that while the sworn information was frequently made available to the respondent, practice differed from court to court and sometimes the information was not made available. The oral evidence, however, was not recorded in a note or otherwise nor was it communicated to the respondent. This issue has been highlighted in a report of the Law Society law reform committee entitled, Domestic violence: The case for reform, published in May 1999. This report proposed that court rules be amended to require that ex parte applications for a protection order or an interim barring order be made on affidavit and that the respondent automatically be provided with a note of all the evidence given at the hearing.
The effect of paragraphs (b) and (c) is that the application for an interim barring order must be made either on an affidavit or on a sworn information and, where an interim order is made ex parte, a note of any evidence given must be made and served, together with the order, and affidavit or sworn information, on the respondent as soon as practicable. In this way, the respondent will have full information on what has been alleged against him or her on the basis of which he or she has been barred from the home. Paragraph (c) provides that the note of the oral evidence shall be prepared by the judge, the applicant or the applicant's solicitor and approved by the judge or as otherwise directed by the judge. In the case of applicants for an ex parte interim barring order in the District Court, which represents the majority of cases, it would be unusual for such persons to be accompanied by a solicitor and they may not be fully in a position to make an adequate note of their evidence. To ensure that such cases are attended to, the judge may make the note or may direct that it be done in some other way, for example, by obtaining the services of a stenographer.
Paragraph (d) of the proposed new subsection (3) addresses the main point in the Supreme Court's judgment, namely, that the court held that the provisions of section 4, as they relate to ex parte interim barring orders, in failing to prescribe a fixed period of relatively short duration during which such an order would continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram partem, that is, that the other side should be heard, in a manner and to an extent which is disproportionate, unreasonable and unnecessary. Paragraph (d) provides that the ex parte order shall have effect for not more than eight working days unless, on application by the applicant for the barring order and on notice to the respondent, the order is confirmed within that period by order of the court. A time limit is placed on these orders by the legislation.
Proposed paragraph (e) provides that the ex parte interim barring order shall contain a statement of the effect of paragraph (d), that is, the duration of the order and the possibility of its being confirmed as provided for in the paragraph. A working day for the purpose of paragraph (d) is defined in paragraph (f) as a day other than a Saturday, Sunday or a public holiday within the meaning of the Organisation of Working Time Act, 1997. If the interim order is confirmed, it will continue in effect until the application for the barring order itself is determined, as provided for in section 5(4) of the 1996 Act.
Section 1 (b) provides that a new subsection (4) will be substituted for section 5(4) of the 1996 Act. This provides that a protection order may be made ex parte. Section 5(4), as it stands, provides that a protection order may be made “notwithstanding the fact that the originating document or other notice of the application required to be duly served on the respondent to the application for a safety order or a barring order has not been so served”. As I have already explained with regard to section 4(3), this is a reference to the notice of the application for the final order – in this case a barring order or a safety order – not to any application for the interim relief. The proposed amendment to section 5(4) changes this by simply providing that a protection order may be made ex parte, that is, in the absence of and without notice to the respondent. Section 2 contains a standard provision for Short Title and collective citation.
In bringing the Bill before the House I am conscious that we must look at these proposals in the context of the legislation on domestic violence as a whole, that is, the Domestic Violence Act, 1996. That Act was ground-breaking legislation, which built on existing remedies for the victims of violence in the home. The barring order remedy dates from 1976, when it was provided for in the Family Law (Maintenance of Spouses and Children) Act. The Family Law (Protection of Spouses and Children) Act, 1981, strengthened the law on barring orders. The main changes made were the extension of the District Court's time limit from three to 12 months, the granting of a statutory power of arrest without warrant to the Garda for breaches of orders and the creation of the remedy of a protection order. The 1996 Act repealed and re-enacted, with substantial amendments, the provisions of the preceding legislation.
Among the changes introduced by the 1996 Act were that: remedies were no longer confined to interspousal violence in that cohabitees could, on certain conditions, avail of the remedies provided by the 1996 Act, as could parents against their adult children; a new type of long-term protection order called a safety order was introduced and this was made available to persons residing together in a relationship, the basis of which was not primarily contractual, in addition, of course, to the other categories who are eligible for barring orders; the maximum duration of a barring order granted by the District Court was increased from one to three years and; the Act, for the first time, provided that a health board, on certain conditions, could apply for a barring order or a safety order on behalf of a victim of domestic violence.
According to the Courts Service report for 2001, in the region of 2,000 barring orders were granted each year since 1996. The number of interim barring orders made per annum has fluctuated over that period, the highest number being just over 1,000 in 2001. The number of safety orders has ranged from around 700 to 1,200 per annum while the number of protection orders has been in the region of 3,400 to 3,800.
It is worth noting from the report of the Courts Service that while the average length of time from the date of issue of the summons to the date of hearing of barring and safety order applications was 12 weeks, barring order applications where an interim barring order had been made were dealt with within two to three weeks. This shows that the District Court had been giving priority already to cases in which an interim order had been made and that judges were generally conscious of the need to set early return dates where they had made such orders.
These are just brief details of the operation of the system since the coming into force of the 1996 Act. Based on this experience, there have been a number of recommendations for reform of what are perceived to be deficiencies in the Act. In particular, there have been reports from Women's Aid and the Law Society's law reform committee. I have already referred to the latter report.
Among the proposals which have come from various sources are the following: eligibility criteria for orders under the Domestic Violence Act, 1996, should be extended to include a person with a child in common; the residence requirement for eligibility for a barring order in the case of unmarried cohabitees should be reduced from its present level which is six months out of the previous nine; the residence requirement should be removed for cohabitees seeking a safety order and for cohabitees with sole ownership or tenancy rights in the home seeking a barring order; provisions should be introduced permitting parents or elderly relations to apply for protective orders against abusive relations or persons other than an adult child and such provisions should include safety or barring orders against such relations or persons residing in the home and safety orders against those residing elsewhere; there should be a category of associated persons who would be entitled to apply for a safety order and a non-exhaustive list of such persons should be provided; associated persons with sole ownership or tenancy rights in the home should be entitled to apply for a barring order; the case has been made that there should be either detailed statutory guidance or a list of standards to be considered by the courts in determining whether to grant protective orders; there should be statutory guidance with regard to welfare based applications; further statutory guidance should be provided regarding the standard of proof necessary to establish abuse; and the probation and welfare service should be given a clear statutory role in relation to domestic violence cases and an increased role in supervised access arrangements.
There is also a commentary on the Law Society's report by AMEN, an organisation which speaks in defence of men who have been respondents in domestic violence cases, that there should be a category of "associated persons" who would be entitled to apply for a safety order and a non-exhaustive list of such persons should be provided. Another proposal is that "associated persons" with sole ownership or tenancy rights in the home should be entitled to apply for a barring order.
A case has been made that there should be either detailed statutory guidance or a list of standards to be considered by the courts in determining whether to grant protective orders. Also, that there should be statutory guidance with regard to "welfare" based applications and that further statutory guidance should be provided regarding the standard of proof necessary to establish abuse. The probation and welfare service should be given a clear statutory role in relation to domestic violence cases and an increased role in supervised access arrangements. A commentary has also been made on the Law Society's report by AMEN, an organisation which speaks in defence of men who have been respondents in domestic violence cases.
The Minister for Justice, Equality and Law Reform intends to have these various recommendations further examined in consultation with interested parties and, to the extent that reform seems warranted, his intention is to introduce the necessary amendments as part of a family law Bill which he aims to bring forward in about a year or so.
It would not have been feasible in the short time available since the Supreme Court decision to include any such measures in the present Bill which is aimed specifically at restoring the power to make interim barring orders ex parte in a way which conforms with the Constitution. I appreciate the patience of Senators as I have outlined the legal technicalities involved in the particular measure. To have attempted to go beyond that at this stage would have delayed the most urgent change of all which will provide a necessary remedy for the victims of domestic violence.
This Bill represents a proportionate response to circumstances where an interim barring order has to be obtained urgently to save vulnerable persons who are faced with an immediate risk of significant harm to themselves or a dependent. I commend the Bill to the House.
