Seanad Éireann - Volume 146 - 08 February, 1996

Domestic Violence Bill, 1995: Committee and Final Stages.

SECTION 1.

Acting Chairman (Mr. Sherlock): Amendments Nos. 2 and 8 are related to amendment No. 1. The three amendments may be discussed together.

Ms Honan: I move amendment No. 1:

In page 5, between lines 6 and 7, to insert the following subsection:

“(2) In this Act, where the context so requires, a reference to a spouse includes a reference to a person who is a party to a marriage that is void or voidable or has been annulled in the State or that has been dissolved or annulled under the law of a country or jurisdiction other than the State.”.

I welcome the Minister. We are all pleased with yesterday's judgment in the High Court and we look forward to the introduction of divorce legislation shortly.

With regard to amendment No. 1, we received representations from various groups such as Women's Aid and the Coolock Law Centre about the Bill. The purpose of the amendment is to ensure that the category of people who can apply for a safety order will include ex-spouses [394] and parties whose marriages have been annulled or in relation to which a valid foreign divorce has been granted. The Progressive Democrats believe that a person whose marriage has been annulled or dissolved in another jurisdiction should be entitled to the same level of protection. This amendment is really a technical amendment. I am concerned that there is a loophole in the Bill which would prevent these people from applying for a safety order under the Act.

Minister for Equality and Law Reform (Mr. Taylor): The combined effect of these amendments would be to enable one party to a marriage which is void or voidable or has been annulled in the State or has been dissolved or annulled under the law of a country or jurisdiction other than the State to obtain a barring order against the other party to that marriage.

In so far as foreign decrees of divorce which are recognised here are concerned, in the recently enacted Family Law Act, 1995, provision is made for the granting of barring orders under the Family Law (Protection of Spouses and Children) Act, 1981, to ex-spouses who have a recognised foreign decree of divorce. This will continue to be the position even after the repeal of the 1981 Act by this Bill. However, the circumstances in which such orders can be granted under the Family Law Act are heavily circumscribed. The court must first hear an ex parte application to ensure that the application is well founded and that the party satisfied certain jurisdictional rules. This is to ensure that valuable court time is not wasted on spurious applications from persons with foreign divorce decrees who do not meet the criteria for recognition in Ireland. In addition, the Act provides that where either spouse has remarried the remedy is not available. The court must also take a number of other factors into account such as the length of time which has elapsed since the foreign divorce was granted and the extent to [395] which the order is likely to be enforceable.

Senator Honan's amendment raises a question in relation to the protection of spouses who have a domestic or foreign decree of annulment of marriage and wish to obtain orders under the Bill. I have examined this matter carefully and it is not at all straightforward. I am of the view that separate legislation covering nullity would be the more appropriate and safest way forward. In the circumstances, I do not propose to accept these amendments.

Ms. Honan: I accept that it is a complicated matter; it is not as straightforward as it might seem. I accept the Minister's contention that the way to deal with this might be through nullity legislation. I withdraw the amendment.

Mrs. McGennis: My intention was the same as Senator Honan's. I accept the Minister's argument that the amendment would simply complicate this legislation and would not be appropriate to the Bill. As I did when the Family Law Bill was before the House, I urge the Government to address the nullity problem as a matter of urgency.

Professor Lee: Does the Minister have a timeframe for the nullity legislation he has in mind, or is it premature to inquire about that? If it is a good cause it should be prosecuted as rapidly as possible.

Mr. Taylor: It is a good cause and I would very much like to introduce a Bill on nullity. However, I have limited resources in my Department and there are a number of pressing matters to be dealt with — for example, divorce. It would be my intention to introduce a Bill, but whether or when that would be possible I just cannot say. I hesitate to give a commitment that might turn out to be inaccurate.

Amendment, by leave, withdrawn.

[396] Section 1 agreed to.

SECTION 2.

Amendment No. 2 not moved.

Acting Chairman: Amendments Nos. 4, 5, 9, 10, 11 and 12 are related to amendment No. 3 and all may be discussed together.

Ms Honan: I move amendment No. 3:

In page 5, subsection (1) (a) (ii), lines 28 to 30, to delete all words from and including “during” in line 28, down to an including “order” in line 30 and substitute “or is the parent of a child in common with the respondent.”.

In proposing this amendment I was concerned about the type of person who may make an application for a safety order. An applicant should specifically include a person who has a child in common with the respondent whether they are living or ever have lived together. I also have concerns about limiting the definition of cohabitees to persons who have lived together for at least six of the previous 12 months. This might cause difficulties for the applicant in proving that the parties resided together within that definition.

We should remember that the purpose of the legislation is to provide for the protection of persons who are not protected under existing legislation. In the absence of the legislation before us, parties seeking protection must rely on the injunction procedure. The procedure provided for in this Bill is more simplified and welcome. It is designed particularly for domestic violence situations and is less cumbersome and costly than the injunction procedure.

I have had representations from Women's Aid and the Coolock Law Centre who have experience in dealing with cases of domestic violence. Having carried out a review of recent cases handled by the centre on behalf of unmarried applicants in domestic violence [397] situations, the Coolock Law Centre believes that one half of these applicants would not fall within the definition in this Bill of applicants for a safety order. They would still have to rely on the injunction procedure, so the provisions of the Bill would be of no assistance to them. On that basis I ask the Minister to accept the amendment.

Mrs. McGennis: I received the same submission from the Coolock Law Centre, so I will not repeat the points made by Senator Honan. This legislation seeks to give more security and safety to people in situations of domestic violence. The wording in my amendment would ensure that anybody who is a parent of a child, regardless of their marital status, would benefit from this Bill.

The Coolock Law Centre told us that prior to the introduction of this Bill, the injunction procedure was the only one available to people who were not part of a married couple. The changes in the law would only help about half of the cases with which they have been dealing. This amendment seeks to ensure that the remaining people will be able to avail of the protection of this legislation. I welcomed this legislation on Second Stage and I still do so. I know there are constraints on the Minister but perhaps he could advise us if it is possible to achieve this objective without placing the Bill at risk and if he is in a position to introduce an amendment which would do this.

Dr. Henry: I support the sentiments expressed by Senator Honan and Senator McGennis. Our concern is for women who may have children in common with respondents and who may have been living apart for many years. A large number of domestic disputes affect children and involve matters such as access to and the maintenance of children and visiting rights. I would like to hear the Minister's views on how this protection can be guaranteed.

Mr. Taylor: The effect of amendment No. 3 would be to fundamentally change [398] the requirement in the Bill that cohabitants be living together for six months on 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 on aggregate. I regret I am unable to agree to a change of this kind. It would mean that cohabitants who split up at any time, be it for two, three or five years or any indeterminate time, could apply for a safety order. I am satisfied that an amendment on those lines would present problems in principle and in practice. If two people happen to have lived together for an aggregate period of six months, subsequently break up and have had little or no contact for a year or more, there would seem to be no particular reason the safety order remedy in particular should be available between them. A line has to be drawn somewhere. The Bill achieves a satisfactory balance in the matter.

The effects of amendments Nos. 4, 5, 10, 11 and 12 would be to allow all persons with a child in common to avail of the barring order and safety order remedies. The applicant, on the basis proposed, need not be a cohabitant and there need not be any residence requirements immediately prior to application. As the barring order and safety order provisions in sections 2 and 3, respectively, stand, cohabitants who have children may apply for either such order or their protection and/or the protection of their children.

In so far as an application for a barring order is concerned, a main condition is that the cohabitant must have lived with the respondent cohabitant for a period of at least six months on aggregate during the period of nine months immediately prior to the application for the barring order. So far as a safety order is concerned, the cohabitants must be living together for a period of at least six months on aggregate during the period of 12 months immediately prior to the application for the barring order.

[399] The difference in the qualifying conditions under sections 2 and 3 reflect, in part, the difference in the seriousness of the two orders in question. To extend coverage further to all persons who have a child in common, even where they do not reside together, would depart from the main purpose, which is to protect persons who are residing together. This is as far as the Bill can go. To go any further would be to allow persons invoke a special law which was never designed to apply to anything other than domestic relationships and, most certainly, not relationships of the most casual kind where there is no such domestic relationship in fact.

A 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 the Garda Síochána, for the purpose of arrest, may enter any place where the respondent happens to be, whether in his or her home or any other place. The barring order is a most powerful order which enables the court in certain circumstances to bar a cohabitant from his or her place of residence. It, too, renders a person liable to arrest for any breach and allows the Garda Síochána to enter any place for the purpose of such arrest. It is important that these powers, which are far-reaching, even in the context of domestic violence, should be available in specific circumstances only.

I am advised that to extend the categories of persons who may apply for a safety or barring order any further than is provided for in the Bill would run the risk of a successful constitutional challenge and therein lies the problem. I hope Senators will understand and appreciate that I am not prepared to run that risk and, with regret, I must oppose these amendments.

Amendment No. 9, in the name of Senator Honan, proposes that the period of living together be six months on aggregate within a 12 month period [400] immediately prior to the application. I appreciate that such a formula would cohere with the formula in the Bill with regard to safety orders. Under section 3, as drafted, a cohabitant will be in a position to apply for a barring order where he or she is living with the cohabitant for a period of six months during the period of nine months immediately prior to the application for the barring order. I am advised that a stricter provision is necessary in the case of a barring order than in the case of safety order for the reason that the giving of a power to the court to order a cohabitant from his or her home runs the risk of constitutional challenge. To minimise the chances of success of any such challenge, the provisions need to be operated under strict conditions consistent, of course, with the need to protect persons from violence in the home. With regret, I am not in a position to support the amendments.

Ms Honan: The Minister said he could not consider an amendment to deal with a woman who has a child in common with a person who is abusing but not living with her. Women's Aid feels strongly that people who have children in common with persons who abuse them should be entitled to apply for a safety order under section 2 or a barring order under section 3. With regard to the difficulties concerning the period of six months out of the previous 12 months and the period of six months out of the previous nine months in the case of safety orders and barring orders, many relationships are marked by long periods of absence from the home of violent partners. To impose conditions concerning a period of six months out of the previous nine months is not acceptable. I think courts can take this into consideration when dealing with cases.

The Minister said it is not possible to cover this contingency under the provisions of the Bill. If a woman is being threatened and abused by a person with whom she has a child in common, in what circumstances can she apply for a [401] barring order or a safety order? I understand the Minister has difficulties with regard to the time period. He said that barring orders are much more serious than safety orders and he has, therefore, increased the time period for the latter. I do not accept that it is not possible to allow someone who has a child in common with a respondent to apply for a safety order or a barring order. Women's Aid and the Coolock Law Centre have lobbied strongly on this issue. Both groups have a great deal of experience in this area and their recommendations should not be taken lightly.

Mrs. McGennis: I accept what the Minister has said. What is the legal position regarding women who are harassed and abused in their homes by people who are not cohabitants? Women's Aid and other organisations are faced with the reality of such violence. Are there any provisions in other legislation which would help these women, whom the Minister says will not be covered by the order provided for in this Bill? I do not want to weaken this order by insisting that it be extended to cover these people.

If this appears to the Minister to be strong legislation that is geared, focused and addressed to the needs of those people, then I accept it totally. However, is there any way the violence and abuse directed towards women and children in a non-cohabiting couple can be addressed? Is there other legislation in existence which already addresses that problem or would it be possible to re-examine it in another Bill?

Dr. Henry: Like Senator McGennis, Senator Honan and the Minister, I am anxious about the protection of women and children in these situations when the relationship may have broken up some time earlier.

Mr. Taylor: Is this when they are not cohabiting?

Dr. Henry: That is correct. I have been told that children in these situations [402] will be protected under the Guardianship of Infants Act and the Child Care Act and women will be protected under the Offences Against the Person Act, 1861, and common assault legislation. My question is broadly the same as that asked by Senator McGennis, but I would be grateful if the Minister could tell me if this is the legislation under which the women can protect themselves and their children?

Mr. Taylor: There is, of course, other legislation. The Offences Against the Person Act, 1861, and the Children Act, 1908, have relevance but the remedies would not be as easy, quick and effective as those being provided for in this legislation. It would be nice if there could be a broad extension of these new remedies in this legislation but there are difficulties and I outlined them in my statement.

This Domestic Violence Bill deals with cohabiting couples. If the couple has a child in common but has not cohabited for a long time, these remedies would not be appropriate. At present, barring orders and protection remedies are confined to the spousal situation. We are making a major extension in this Bill by bringing in cohabitants for the first time, which has been sought and considered for a long time. It does not cover every situation — there are still property, ownership and cohabitation constraints — but it is a massive sea change from the present position which confines those effective remedies to the spousal situation.

The thrust of this Bill is fraught with constitutional difficulty. I have had extensive discussions with the Office of the Attorney General and I ask Senators to accept that I am pushing the boat out as far as I reasonably can; Senators would not wish me to run the risk of impunging the entire legislation by pushing it out too far and maybe sinking it. I cannot risk doing that; the need for this legislation is too strong. It has been sought for a long time and much time was spent going through all [403] the aspects. We have extended it as far as possible. While I fully realise and accept it is the rightful job of Senators to press matters as far as possible, my responsibility is to ensure the legislation is as constitutionally sound as I can make it and as appropriate to the type of situation with which I am trying to deal, and I have done that.

Mrs. McGennis: I accept the Minister's statement. However, given his admission that the existing legislation to protect the people we are trying to include in this Bill is not as good as those in this Bill, could he press the Minister for Justice or the appropriate Minister to update or amend the necessary legislation?

Mr. Taylor: There is a lot of work going on in many areas.

Professor Lee: I have an ignorant question for the Minister — I am sure many of my questions are ignorant. Would the Act fall if a single clause was found to be unconstitutional?

Mr. Taylor: It would if the Bill was referred to the President and found to be unconstitutional. On the other hand, if it was signed by the President, it could be challenged on an ongoing basis. As the Senator knows, these items of legislation do get challenged clause by clause.

Ms Honan: I accept what the Minister has said. I congratulate him for pressing forward with this legislation and for going as far as he believes is constitutionally possible. However, like Senator McGennis, I urge him to press the Minister for Justice to introduce changes to take care of these grave concerns. The Minister can see this from the submissions made by various organisations working with women who have been victims of domestic violence on Committee Stage of this Bill in the other House. They are concerned about a large number of their clients. I ask the [404] Government to take this on board by either introducing or amending legislation to take care of them. The Minister has supported these issues and has done much work in this regard. The Minister has gone as far as he believes is possible constitutionally, but it is our duty to raise these concerns.

Amendment, by leave, withdrawn.

Amendments Nos. 4 and 5 not moved.

Acting Chairman: Amendments Nos. 7, 14 and 15 are related to amendment No. 6 and all may be discussed together.

Ms Honan: I move amendment No. 6:

In page 6, subsection (2) (b), to delete lines 19 and 20 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,”.

The aim behind this amendment was raised by Women's Aid. My concern in moving this amendment is that a respondent might be in breach of the provisions of a barring order. We want to be sufficiently precise about the exact place, etc., without being all encompassing.

Mr. Taylor: The effect of these amendments in one form or another is that they would allow the court under a safety order or a barring order to prohibit a respondent from approaching the applicant or from watching or besetting the applicant at any place where the applicant happens to be. Amendment No. 6 is specific in that places where persons are intended to be protected would include places where the applicant works or attends for educational purposes or any other place.

I am of the view that the Bill is already framed in a way which meets the circumstances in which a person [405] might need the protection of a safety order outside of the home. Section 2 (2) (a) and section 3 (3) (a) have a provision to the effect that a person may be directed not to use, or threaten to use, violence against, molest or put in fear the applicant, no matter where that applicant is at the time. In addition, the court may make a safety order or barring order subject to such exceptions and conditions as it may specify. That provision should meet the situations which are apparently intended to be covered by these amendments. The amendments are not necessary and, therefore, I cannot support them.

Professor Lee: My amendment was put down as a reaction to Senator Honan's amendment, even though its spirit was very much the same. I was a little taken aback when I saw “educational purposes” in the Senator's amendment and, in drafting my amendment, I may have been thinking myopically of my institution which is scattered over three miles. A person may by chance be working in or visiting a place where that other person may be at the time. This amendment struck me as being too loose. The provision in my amendment “or any other place the Court may specify” may seem even wider but it does not draw any attention to education institutions. I defer to the Minister's judgment about section 2 (2) (a) covering much of that. In that case why is section 2 (2) (b) needed? Does section 2 (2) (a) not cover everything in section 2 (2) (b)? If one allows section 2 (2) (a) to apply everywhere, does that not take care of the situation anticipated in 2 (2) (b) as it stands? What is the difference between that and what Senator Honan and I put forward?

Dr. Henry: This is a very important section. Senator Honan and Senator Lee put down their amendments because there has been much discussion in the international media recently about stalker crimes where women are beset by people following them in the workplace or even within hospitals and [406] so forth. Apparently there have been great difficulties preventing people torturing women. In 80 per cent of cases the person doing the stalking is well known and quite often is a partner or previous partner of the person who is being victimised. If the Minister says this provision will cover that 80 per cent of cases it is most welcome.

There has been a great deal of discussion in the media recently about violence and crime but as far as women are concerned, since, in nine out of ten cases, the people involved in the crime are people they know, not deranged strangers, even in the case of murder, this section of the Bill is of great practical importance. If the Minister can widen its application to cover these cases I would be very glad. If he cannot I will have to understand the limitations of this Bill.

Ms Honan: I agree with Senator Lee and Senator Henry. Where a woman is under serious threat she should be protected wherever she is. Our concerns should correspond to those of the woman in this case. She should have protection wherever she needs it. Senator Lee's amendment would give the court power to specify particular locations.

The Minister obviously thinks my amendment is too wide but we are talking about the protection of women and, as Senator Henry said, many women are victims of abuse from people they know. It can be very intimidating for them to feel that such a person who has been barred from the family home, or from wherever they have been barred, can still effectively torture and cause misery for these women by following them, going to their place of work etc. Women end up as prisoners in their own home, afraid to go out in case they come across the person from whom they are being inadequately protected by the courts.

Mr. Cosgrave: I support the points raised but particularly the comments about the fear of possible stalking. The [407] apprehension and the fear experienced by women can be every bit as frightening as an actual attack and it can go on for an indefinite period. The aim of some people may be to terrorise.

Mr. Taylor: I support and sympathise with the points made by the Senators but the sections already cover these situations. Section 2 (2) (a), for example, enables the court to make an order prohibiting the respondent from putting the applicant in fear. This covers stalking them anywhere; there is no restriction as to place or limitation. The court has full authority in lines 21 and 22 to make the order subject to such conditions as it may specify; it can specify a place or a location. That is already clearly spelled out in the section.

Section 2 (2) (b) is different. This provides for a special situation, that of watching or besetting. We felt that was so important that it should be spelled out. Where the respondent and applicant are living in separate places we specificially provide for watching and besetting to be restricted, but any other way of putting in fear is clearly covered by section 2 (2) (a). That could be stalking or making intimidating telephone calls from another location. Anything that puts the person in fear is covered under that section and if the court feels it necessary to specify a particular circumstance, such as a specific location or method of putting in fear, the court can do that.

Professor Lee: We are all in agreement as to what we are striving to achieve. Perhaps we are becoming stylistically sensitive here. Is “beset” a specific legal term?

Mr. Taylor: I do not think so. Its normal English usage would apply.

Professor Lee: I see. Why not simply amend section 2 (2) (a)? The phrase “put in fear” seems to me to cover watch or beset as a mechanism of putting in fear as well as the other things [408] the Minister has mentioned. Section 2 (2) (b) has a sense of limitation of residence. Why should watch or beset be confined to a particular residence whereas put in fear covers everything? If one wants to identify this specifically without limitation of residence, why not simply amend section 2 (2) (a) to read “molest or put in fear, watch or beset the applicant or that dependent person”? This covers the applicant or dependent person everywhere and achieves more comprehensively what the Minister is trying to do here.

Mr. Taylor: If they are cohabiting, there could not be a provision that one party must not beset the premises, because that party is living there. The party will be besetting the premises if he or she is living there.

Professor Lee: I accept what the Minister says.

Amendment, by leave, withdrawn.

Amendment No. 7 not moved.

Section 2 agreed to.

SECTION 3.

Amendments Nos. 8 to 15, inclusive, not moved.

Ms Honan: I move amendment No. 16:

In page 8, subsection (3), between lines 20 and 21, to insert the following paragraph:

“(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;”

The Minister referred to this matter in relation to amendment No. 6 when he mentioned fear. This amendment relates to communicating with or attempting to communicate with the [409] applicant or any dependent person by means of telephone without the express permission of the applicant. The Minister said he is satisfied the Bill covers menacing or intimidating telephone calls.

Mr. Taylor: That is correct.

Ms Honan: On that basis I will withdraw the amendment.

Amendment, by leave, withdrawn.

Acting Chairman: Amendment No. 18 is an alternative to amendment No. 17 and both may be discussed together.

Ms Honan: I move amendment No. 17:

In page 8, lines 23 to 36, to delete subsection (4) and substitute the following:

“(4) In a case in which application is made for a barring order in respect of the place where the applicant or dependent person resides, and the respondent has a legal or beneficial interest in that place, but the applicant has no such interest or has an interest which, in the opinion of the court, is less than that of the respondent, the court may make a barring order in respect of that place where, in the opinion of the court, the safety or welfare of the applicant or dependent person so require.

(5) In any application to which subsection (4) applies, the court shall, in deciding whether or not to grant a barring order, and the duration of such order, have regard to all of the circumstances of the case, and, in particular:

(a) the nature and duration of the relationship between the parties;

(b) the parties' respective interests, if any, in the property;

[410] (c) the financial resources of the parties; and

(d) the safety and welfare of any dependent person of either party.”.

This is an extremely important amendment and I expressed concern about this area of the Bill on Second Stage. I am concerned the court will not have the power to grant an order where the respondent has a greater legal or beneficial interest in the home than the applicant. In such cases, particularly where children are involved, the court should have the power to grant barring orders even if they are for a limited duration. It is most important that women and children are protected from violence in certain circumstances.

An amendment to section 3(4)(6) in relation to the admission of evidence of an applicant's belief as to his or her legal or beneficial interest in the property was introduced. However, the amendment does not address the serious concerns in relation to subsection (4)(a). By virtue of section 3(4), a cohabiting partner or an elderly parent of the respondent is precluded from obtaining a barring order in respect of their place of residence where the respondent has a superior legal or beneficial interest to that of the applicant.

The rationale behind the provision is to protect the Bill from a constitutional challenge on the grounds that it interferes with property rights. However, we are being unduly cautious. We are all concerned about the possible referral of the Bill to the Supreme Court to test its constitutionality. As the Minister said earlier, he has pushed the boundaries of the Bill as far as he feels possible. However, I cannot understand how it can be said that somebody's property rights are superior to the bodily integrity of women or children.

The exercise of property rights must be regulated by the principles of social justice and may be delimited by law. On Second Stage the Minister mentioned his concerns about this matter. My argument is that, in appropriate circumstances, [411] the right to bodily integrity of women and children should be superior to the property rights of the respondent. The Bill's provisions will introduce discrimination between the children of married parents, in respect of whom these remedies are always available, and the children in a non-marital household who may be denied access to these remedies because, for example, the father has a superior legal or beneficial interest in the home. This is contrary to the existing constitutional position whereby non-marital children have the same constitutional rights as children born in wedlock.

The House should consider this matter in depth. There is no logic in permitting a newly wed with no dependent children to obtain a barring order while denying the same remedy to a long standing non-marital partner with dependent children. I am aware of the Minister's concerns and that this matter has been discussed at great length. However, my amendment tries to balance the protection of women and children through the granting of a barring order for a limited period without infringing the property rights under the Constitution of the respondent. This is one of the main issues in the Bill and I am most concerned about it.

I am also concerned that many people who hope to have recourse to barring orders under the Bill will be restricted in that regard by virtue of the constitutional provisions relating to property. Although the Constitution appears to give a special place to the family and pays much lip service to women, it does not appear to support their everyday lives in a practical way. The provision in the Bill could have serious consequences for many people and while I am aware of the difficulties with regard to the Constitution — I am sure the Minister will mention this aspect — I urge him to accept the amendment.

Mrs. McGennis: I mentioned this matter on Second Stage and I accept the Minister's point that the rationale [412] behind the provisions is to protect the Bill from a constitutional challenge on the grounds that it infringes the property rights of the respondent. I am not a constitutional lawyer but my amendment attempts to get around that possibility, which might arise if the scope of the Bill is widened.

The Constitution is anything but clear in terms of what is meant by an unjust attack on property rights. As Senator Honan said and the Coolock Community Law Centre has informed us, it could plausibly be argued that in appropriate circumstances the right to bodily integrity of a cohabitee or elderly parent could justify a temporary restriction on the respondent's use of a dwelling. Senator Honan also referred to the rights of spouses as opposed to those of cohabitees. It is enshrined in the Constitution that children born outside wedlock are equally entitled to protection and food as children born within marriage. There is a fear that this provision discriminates against children born outside marriage.

The Coolock Community Law Centre, which provided Members with much of our information, suggests that, in taking the property rights of the respondent into account, the Oireachtas might decide to place some limits on the duration of a barring order. My amendment tries to give a judge some discretion rather than directing that he or she must take a certain course. If it were accepted, judges would have discretion in cases where the applicant does not have a significant interest in the family home.

The law centre also suggests the length of time the parties have been living together, the ownership of property, the stability of the relationship, the welfare of the child of either party and the financial resources of the party should be considered. The Minister will probably point out that the grand attempt to do this in the Matrimonial Home Bill failed miserably. However, he is aware of what we are trying to achieve.

If the Minister's advice is that my amendment does not achieve that objective [413] and would cause significant damage to the Bill, I will have no hesitation withdrawing it. I met representatives of Women's Aid after the Joint Committee on Women's Rights launched its report and they favour a strengthening of the Bill in the areas to which amendments have been put down. They are most concerned about this aspect. However, as the Minister said today, they also want the Bill enacted and I do not intend to delay its passage. Will the Minister reassure me that he has thoroughly examined this matter and confirm that the amendments will not achieve the objectives outlined by Women's Aid and the Coolock Community Law Centre and may damage the Bill? If that is the case I will have no hesitation withdrawing my amendment.

The Constitution places constraints on all Ministers who wish to change legislation. As I said on Second Stage, while this Bill is required, we must also address the parts of the Constitution which need amendment if we are to give protection to society. I am not only talking about cases of domestic violence; the public is also asking for changes to the bail laws. I accept what the Minister said, that to tamper with this Bill would damage it. However, I urge him to take action to amend the Constitution to allow for the changes for which the public is calling.

Dr. Henry: I support the thrust of the amendments put down by Senator Honan and Senator McGennis. However, following the Minister's speech at the end of the Second Stage debate, I realise that if such amendments were accepted this would be found unconstitutional. Our Constitution puts property rights ahead of those of the person. No matter what we may say about the family, its definition in the Constitution is a husband and wife and their children. If these amendments were accepted, we would run into constitutional difficulties.

During the last divorce referendum I had difficulty persuading some young people to vote in favour of it. They [414] argued that nowadays nobody cares whether people are married. Although we may not care, there is a difference under the law, which must be pointed out. The rights of those with property are placed ahead of those of the person. I hope these issues can be rectified when the divorce legislation is introduced. Those in relationships where there is no impediment to marriage should look at this type of legislation and realise how important it is that they are married, particularly for the sake of their children. Following the introduction of the legislation, those who are in a position to regularise their affairs should do so because there are differences which are important in terms of the children of such unions.

Ms Gallagher: I spoke very strongly on Second Stage in favour of the argument that there should be no distinction between the categories defined in the Bill, that is, whether people are living together or otherwise. As Senator Henry and others said, the inference to be drawn from this is that property rights are placed above the right of bodily integrity, to which I fundamentally object. I accept what the Minister said, if there is no way around this in terms of legislation, then it should be highlighted.

Nobody should have their hands tied by a constitution which is out of date in so far as it only refers to women as part of the family, not individuals in their own right. The 1937 Constitution defines the family as a married couple with children. As legislators, it is time we highlighted these matters of concern. I do not believe property rights should be on a higher level than that of bodily integrity and the right to safety in one's home. It would not be acceptable for the judicial system to say that they are incompatible or that it is an inalienable right. I believe property is less important than the right to safety in one's home. I would support these amendments if I thought they would work, but I accept the Minister's word in this regard. This issue must be highlighted [415] and not ignored after the Bill is passed.

Professor Lee: I agree with the sentiments expressed by Senator Gallagher and others. I hope this aspect of the Constitution will be looked at as a matter of urgency to try to fulfil what everybody would regard as the priority of bodily integrity over property rights as defined in the Constitution.

Mr. Taylor: I have much sympathy with the tenor of what was said by the proposers of these amendments and with comments made by others. I would go as far as to say that if the constitutional constraint did not exist, my approach to this subject might well be different. However, advice given to me is that a provision along the lines envisaged by amendments Nos. 17 and 18, 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 the case by virtue of the fact that a barring order would constitute an infringement of that person's property rights which the State and its laws must respect under Article 43 of the Constitution.

The position is different where the parties are married. An infringement of the 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. The 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. Indeed, we have gone further than that in the measure we have brought before the House.

It must also be remembered that persons with no rights of ownership and [416] property 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 the Garda also provided for in the Bill. I recognise and pay tribute to the efforts made by Senator Honan and Senator McGennis in their amendments to try to get around the constitutional difficulty. I assure the Senators that when preparing the Bill, I made similar efforts which were to no avail because the constitutional difficulties would remain. With regret, therefore, I am unable to accept the amendments.

Amendment, by leave, withdrawn.

Amendment No. 18 not moved.

Section 3 agreed to.

SECTION 4.

Acting Chairman: Amendments Nos. 19, 20 and 21 are alternatives and amendment No. 22 is related and all may be discussed together. Is that agreed? Agreed. As Senator Honan is not present, amendment No. 19 in her name cannot be moved.

Amendment No. 19 not moved.

Professor Lee: I move amendment No. 20:

In page 10, subsection (1) (a), line 5, to delete “an immediate and serious risk of significant harm” and substitute “a risk of harm”.

I was puzzled — maybe it reflects my ignorance — by the words “an immediate and serious risk of significant harm” to the applicant. It seems to take a high risk approach to protecting the applicant. I accept that section 4(1) (b) introduces the proviso of the granting of a protection order, etc. If section 4(1) (a) is required, it should simply state “a risk of harm” rather than “any immediate and serious risk of significant harm”. [417] The word “immediate” covers an interim period before something is put into operation. I do not know why one must be satisfied that there is a serious risk of significant harm. How does one define these things? What would constitute a risk of harm which is not serious or significant? It is better to be safe than sorry and that is why I suggest deleting the words “serious” and “significant” from this provision.

Dr. Henry: Like Senator Lee and Senator Honan, I am concerned about these adjectives. Would a person have to prove to a court that they would be beaten as soon as they returned home? How do we know how the judge will interpret these adjectives? I refer to the case I mentioned on Second Stage — Senator Manning has assured me that the gentleman is still on the bench — where a woman who was badly beaten was advised to go home with her husband, have a bottle of wine and a couple of steaks. Some people lead more sheltered lives than the rest of us. I would not like to think that people had to prove they were about to have their ribs broken or were going to be dragged by the hair around the house before they could get protection in the courts.

Ms Gallagher: While I accept Senator Lee's concern, I understand that, under the present law, a protection order can be granted by the court immediately prior to any barring order. However, given that a protection order may not be sufficient in that it does not put somebody out of the house, there is a need for something in between the protection order and the barring order, especially if a barring order will bar one from the family home for a number of years. I accept that there must be an immediate risk in order for an interim barring order to be granted, which does not need to be a factor pertaining to the subsequent granting of a barring order. It is a good idea, therefore, to provide for an interim barring order and the provision itself is well phrased.

[418] 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, and the main condition with which the court must be satisfied before granting the interim order is that there is an immediate and serious risk of significant harm to the applicant and any other dependent person if the order is not made immediately. The effect of Senator Henry's amendment to section 4(1)(a) is that the court would not, in deciding whether to grant an interim barring order, be required to examine either the immediacy or the seriousness of the risk of harm involved to the applicant were the order not to be made.

I am unable to agree with the amendment as it stands. I am satisfied that the granting of an interim barring order must be subject to strict conditions for the reason that it is an order made in the interim pending full determination of the case that is made for a barring order. The barring order remedy is draconian at any time and it is important to recognise that there must be conditions and safeguards attached to the making of such orders by the courts, especially where the order is being made on an interim basis without a full hearing of the case and, indeed, where the court must come to an immediate decision on the facts before it.

It must also be recognised that the interim order may in some cases be granted on an ex parte basis, that is, in the absence of and without notice to the other party. These circumstances must demand that conditions and safeguards of the kind which are provided for in section 4 be in place to enable justice to be done to all parties concerned.

However, the amendment helped to highlight for me the fact that the drafting of section 4(1)(a) might be improved in some respects without departing fundamentally from certain essentials. In response, therefore, I have put down amendment No. 22. The upshot of this amendment is that the need of the court to be satisfied that there is an immediate and serious risk of significant harm to [419] the applicant would be a need only to be satisfied that there is an immediate risk of significant harm. On this basis the need to establish a serious risk as such will not arise. The requirement to establish significant harm should be sufficient to meet the type of stringent conditions which would apply to the granting of interim barring orders.

My amendment aspires to be similar to the type of amendment since tabled in the names of Senator Lee and Senator Honan. I ask Senator Henry not to press her amendment and to lend her support to my amendment as a reasonable compromise. I also ask the House to support this amendment.

Professor Lee: How many interim barring orders are granted at present? How long is the normal gap between the interim and the actual barring order?

Mr. Taylor: It could be a month or two.

Professor Lee: How many interim barring orders would normally be issued?

Mr. Taylor: Under existing legislation there is some doubt whether the courts may grant interim barring orders although I understand some District Court judges have granted them in very exceptional or rare occasions, as must be the case when granting such orders, given that they mean people can be barred from their home without receiving any notice — no summons, no notice to attend court to answer a complaint and so on, in other words, they can find themselves barred from the home ex parte. The order could be based on misleading evidence submitted to the judge as both sides have not been heard. It is a very unusual and special type of proceeding. This is why special care is necessary to ensure that justice is done.

Amendment, by leave, withdrawn.

Amendment No. 21 not moved.

[420] Government amendment No. 22:

In page 10, subsection (1)(a), line 5, to delete “and serious”.

Amendment agreed to.

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

Dr. Henry: The Minister is right to stress how serious are interim barring orders, especially when issued on an ex parte basis. I know it is not in the Minister's domain, but I have written to the Minister for Justice asking that, when she is extending the number of judges in the District Court, where a great deal of family law is dealt with, the possibility of having the District Court sit over weekends should be considered. Friday and Saturday nights can be riotous times, when many problems occur, especially if alcohol is involved. I would be grateful for the Minister's support on this and ask him to mention it to the Minister for Justice.

Mr. Taylor: I will convey this to the Minister for Justice.

Question put and agreed to.

Sections 5 to 8, inclusive, agreed to.

SECTION 9.

Mrs. McGennis: I move amendment No. 23:

In page 14, subsection (1), line 19, to delete “and” and substitute “on notice to the other party but”.

Clarification may render the amendment unnecessary. In the interest of natural justice and due process I understand the section allows for the courts to make orders under various Acts, which I welcomed on Second Stage. However, there is concern that the section would allow for the making of orders where no notice of which may be given to the parties to the case. I am advised that this raises serious issues of [421] due process and constitutional rights. The respondent should have notice to any application made to the court and the likely orders that could be granted by the court. Will the Minister clarify that the respondent will be given due notice of other issues that would be taken, such as maintenance?

Mr. Taylor: Section 9 provides that where an application is made for a safety, barring or protection order, the court may, in the same proceedings, make an order under the Guardianship of Infants Act, 1964, an order for maintenance under the Family Law (Maintenance of Spouses and Children) Act, 1976, an order in relation to a family home under the Family Home Protection Act, 1976, or an order under the Child Care Act, 1991.

The effect of Senator McGennis's amendment would be to prevent the court from dealing with matters of custody, maintenance and so on unless prior notice has been given to the other party that such questions will be raised in proceedings. I appreciate the Senator's concern to ensure that parties will have negotiation. However, the fact that the court must satisfy itself that it is appropriate to deal with custody, maintenance, etc. in the proceedings fully protects the position of the parties. There will be exceptional situations in barring order procedures where the court may be asked to act quickly, if necessary without notice, under the Acts of 1964, 1976 and 1991. I am satisfied that those situations must be recognised and covered in the Bill. The advice available to me is that it is in order to provide in this way in the Bill. There are similar provisions in the Family Law Act, 1995. I am advised the amendment is not well founded; therefore, I regret I cannot accept it.

Mrs. McGennis: I am concerned that natural justice is not covered in this section. We will not strike the right balance by bringing one side of the case to court. I support the streamlining of [422] these issues. Both parties to the case should be informed so they can respond.

Dr. Henry: I share Senator McGennis's concerns, particularly when most of these cases will be heard in the District Court where there is no deposition. The Minister is concerned about the immediacy of cases. We can do no more than note the Senator's concerns.

Mr. Taylor: The amendments have been checked by the Attorney General, who is as satisfied, as I am, that the section as it stands conforms with the requirements of natural justice. The proviso is clearly stated in line 20, “if it appears to the court to be proper to do so”. I remind Senators, by analogy with the interim barring order that exceptional situations arise where an order for maintenance, for example, or custody would present itself in the course of a barring order application. Rather than sending the woman, as it is in most cases, away to get a solicitor who would issue fresh proceedings in an appropriate case, the court must be satisfied that it is proper to do this and that urgency and need require it. We are giving that discretion to the court in the exceptional case that custody or a family home order would be urgently required. No court will take advantage in the absence of a person unless there is a pressing reason to do so. The court could say it will consider the application or put the case back for a week or a fortnight and notify the other spouse. The alternative is to tell the unfortunate person who needs the custody order or the maintenance order to issue a fresh summons and to start proceedings again. There are cases where it would be unjust to do that to a person. The powers are limited, but they should be there.

Professor Lee: I share Senator McGennis's and Senator Henry's concerns. We are giving enormous power to judges in legislation and we are giving more power to the courts than they have already. Is there any provision to ensure a consistent response, particularly [423] when appointing more District Court judges? Given the powers being conferred on them — I accept judicial independence — there must be some mechanism to ensure a reasonable degree of consistency in the interpretation of such a section which gives sweeping authority to the courts. Can anything be done about that?

Mr. Taylor: It is difficult to do that because every case and circumstance is different. The type of situations which can arise are wide and unpredictable and we cannot provide for each one. That is why enormous discretion and power must be given to courts and judges in legislation. They are an organ of Government who take their responsibilities in these matters seriously and carefully. Any court, before granting an interim barring order, for example, would exercise great care. Any court which would avail of this power in section 9 would only do so if it was absolutely necessary and urgent. The fact they may make an order in these proceedings under one of the other Acts does not mean they would do so without giving notice to the other side. That would be extremely exceptional.

There could be circumstances where it might be appropriate to do this, but they would be extremely rare. More common is the case where in the course of a hearing a judge recognises that the woman urgently needs maintenance but has not been receiving it. Rather than sending her to a solicitor, issuing a fresh summons, setting a new date for court and undertaking a separate proceeding to the one already underway about a family matter, the judge decides to make it easy for this person. He decides to deal with the maintenance needs of this woman and her children without asking her to get a fresh summons and to start new legal proceedings. He puts the case back for a fortnight and asks the woman's solicitor to write to the other spouse to tell him that not only will he deal with the barring order application on Monday week, but that he will [424] also deal with maintenance. This means the woman does not have to find a solicitor, issue a fresh summons and set a new date for court, which might take months if the courts are busy. That is the objective and it has a useful role to play.

Amendment put and declared lost.

Section 9 agreed to.

Sections 10 and 11 agreed to.

SECTION 12.

An Leas-Chathaoirleach: Amendments Nos. 24 and 25 are related and both may be discussed together.

Mrs. McGennis: I move amendment No. 24:

In page 16, subsection (1), line 13, to delete “or a barring order” and substitute “, a barring order, protection order or an interim barring order”.

Why did the parliamentary draftsman distinguish between protection orders and interim barring orders and safety orders and barring orders? As regards barring orders, the courts have the discretion to stay the effects of an order in the event of an appeal. I thought all orders should have been dealt with on a similar basis.

Mr. Taylor: Section 12 is based on existing law in section 10 of the Family Law (Protection of Spouses and Children) Act, 1981. Section 12(1) modifies a general District Court rule whereby the operation of a court order is stayed when an appeal is lodged. The subsection provides that an appeal against a barring order or a safety order shall not stay the operation of the order except if the court that made the order or the appeal court decides that it should have a staying effect, and then only on such terms as may be imposed by that court.

[425] Section 12 (2) provides that an appeal from a protection order or an interim barring order can in no circumstances operate as a stay. The essential purpose of these orders is to afford emergency protection for a limited period of time, pending the determination of the case at the full hearing. It would be inconceivable that the operation of such emergency orders could be allowed to be suspended on an appeal being lodged against them.

The general District Court rule is that a person against whom an order has been made by the District Court may, simply by lodging an appeal, have the order stayed, thereby suspending its effectiveness pending the outcome of the appeal. Such a rule may no doubt be fair where a monetary payment is being ordered, for example, but in regard to barring orders it might well place the abused victim in considerable peril since by lodging an appeal the respondent would be able to walk back into the home and continue the behaviour which led to the order being sought in the first place.

Protection orders and interim barring orders are intended to afford emergency protection for a short period, subject to certain conditions. If the court considers that conditions for the granting of such emergency protection exist, pending the hearing of the application proper, it would seem invidious to suggest that an appeal could effectively stay the order without a full hearing of the case, particularly when one considers that the likelihood is that there would be a full District Court hearing before the Circuit Court appeal.

The fact that an appeal against a protection order under the 1981 Act cannot operate as a stay has not led to any difficulties in practice as far as I am aware. Any suggestion that emergency protection in serious cases could be delayed by means of an appeal seems to me to be unwarranted and is bound to be seen as a diminution of the present protection afforded by a protection order. In the circumstances I cannot accept these amendments.

[426] Mrs. McGennis: On the basis of the Minister's reply I unreservedly withdraw the amendments. I was badly advised.

Amendment, by leave, withdrawn.

Amendment No. 25 not moved.

Question proposed: “That section 12 stand part of the Bill.”

Ms Gallagher: I understand the distinction between the nature of the orders, why some ought not to be appealed and some may. If a husband automatically wishes to appeal, for the sake of making it more difficult, is it possible under this legislation to apply for a protection order and a barring order at the same time, on the basis that if the barring order was appealed, the protection order would not be eligible for appeal and therefore the woman would be guaranteed some immediate safeguard? How would that work in practice?

Mr. Taylor: I am not clear on the Senator's point.

Ms Gallagher: If a woman has applied for a barring order, in some circumstances her husband may automatically appeal it, knowing that it did not take effect or simply to be awkward. Could the woman guarantee protection for herself by applying for a protection order at the same time as the barring order? How would the law come into play there?

Mr. Taylor: She can get a protection order pending the outcome of the appeal.

Ms Gallagher: Even if she has not applied for one?

Mr. Taylor: Yes, the court has power to give a protection order pending the outcome of the appeal.

[427] Ms Gallagher: Without necessarily applying for one?

Mr. Taylor: I understand that is the position.

Ms Gallagher: I thank the Minister for the clarification.

Question put and agreed to.

Sections 13 to 24, inclusive, agreed to.

NEW SECTION.

An Leas-Chathaoirleach: Acceptance of amendment No. 26 involves the deletion of section 25 of the Bill.

Government amendment No. 26:

In page 20, before section 25, to insert the following new section:

“25. (1) Subject to subsection (2), this Act shall come into operation one month after the date of its passing.

(2) Section 6 and so much of the other provisions of this Act as relate to that section shall come into operation on the 1st day of January, 1997.”.

Mr. Taylor: Section 25 as it stands provides that “the Act shall come into operation one month after the date of its passing”. The effect of amendment 26 is that section 6, giving health boards the power to apply for barring, protection and safety orders on behalf of persons in certain circumstances, would not come into operation until several months later than other provisions in the Bill. The operative date as proposed is not open ended — it is set down in the amendments in definite terms as 1 January next.

There are particular reasons why health boards might not be in a position to operate section 6 adequately if they were required to operate it immediately on enactment of the Bill. Considerable additional responsibilities have recently [428] been placed on health boards by the coming into operation of 44 sections of the Child Care Act and the training and recruitment of staff is being proceeded with to meet those new demands. The Government is committed to implementing the Child Care Act in full this year, which would involve further statutory responsibilities on the health boards. Section 6 of the Domestic Violence Bill has further financial and staffing implications for the child care services of the health boards. In addition, necessary administrative arrangements will also have to be put in place so that health boards will be in a position properly to take on the new responsibilities placed on them by section 6 of this Bill.

I am advised that those arrangements may not be sufficiently in place by the expected time of enactment of the Bill. Accordingly, the amendment now proposed is designed to meet the reality of the situation for the health boards. The time interval involved is not too great and I ask the House to appreciate that everything possible is being done to ensure that the necessary administrative arrangements will be in place within the time frame allowed for by this amendment. I therefore ask the House to support it for the reason I have given.

Mrs. McGennis: My problem with this amendment is that much legislation we have passed — including the Child Care Act and now this Bill — places additional responsibilities on health boards. When Acts are passed there is a presumption that the protection is then in place and the spirit of the legislation can be acted upon. By submitting this amendment, the Minister is indicating that the safeguard in this provision will not come into place until 1 January 1997.

Through my involvement with social workers and the health boards on problems with families and young people, I discovered accidentally that while the Houses of the Oireachtas may pass all the legislation they like to protect those who are vulnerable in society, health boards and health care staff are not prepared [429] to implement those Acts unless additional staff and finance are provided to do so. Amendment No. 26 quietly admits there is a serious problem in the health boards.

Almost two years ago I brought a 16 year old boy, who had been thrown out of his home, to a health board social worker. While she was sympathetic and supportive and pointed me in the right direction, she told me she could not take on his case because she was in the course of industrial action over the additional burdens placed on them. There were no resources and a lack of social workers. Similarly, in a case for supplementary welfare where a dole payment was not being made, a constituent of mine went to the health board and was told those payments were not being made any more.

The crisis in the health boards is not the Minister's responsibility, but this amendment covers many other events in the system. Earlier today, in discussion with representatives of the National Women's Council of Ireland, it was said that the passage of legislation gives out the message that things have changed; but I think that in many instances that message is wrong. Things can only change if we can support the system to ensure those who are at the coal face can do the job and the Minister must agree that in the health boards at present those faced with dealing with the real and raw cases are not in a position to do so.

While the Minister says he wants to defer this provision to get it right, he needs to provide the expertise, support and finance to enable these people to carry out this task next month. I want the Minister to put pressure on the Minister for Finance or the Minister for Health to put the finance and expertise in place to implement this provision.

In the Minister's old council area in Dublin South — the Tallaght and Clondalkin area — there is not one social worker from Dublin Corporation. The Minister knows the problems of these disadvantaged areas. The social worker who was there has left and has not been [430] replaced. This provision signals the crisis at the front line. I want to be able to tell people that the Government has brought in this legislation, the Child Care Act, 1991 and have provided the necessary finance. However, there are problems in the health boards and if we keep throwing legislation and additional powers at them they will not be able to implement them unless they are given the necessary resources. The Minister may say he hopes that will have been done by 1 January 1997 but I would prefer if the Bill were not amended and that an emergency response was put in place to ensure that all sections of the Bill become law within the month.

Dr. Henry: I have to agree with what Senator McGennis says about the lack of social workers in the community at present. Unfortunately, the Minister's amendment is realistic. He should point out to his colleagues in the Department of Health and the Department of Finance that it has not gone unnoticed in the ballroom of Leinster House that there is a dire shortage of social workers to implement the legislation coming to the House. There are grave problems with the implementation of the Child Care Act, 1991, and the social workers will not be in place by 1 January 1997 to implement the provisions of this Bill unless action is taken.

In the context of the crisis of getting social workers or probation workers, it is astonishing that we are producing an excess of graduates in these fields yet, even with advertising abroad, we cannot entice them back to work in Ireland. Why has that problem arisen? A patient asked me recently why all the social workers have English accents. I presume people are coming from Britain to work here; I doubt if they are expatriates who have acquired English accents while working in Britain.

Professor Lee: We are codding ourselves and the public if we pass admirable legislation but do not provide the resources to allow it to be implemented. I would like an idea of the order of magnitude [431] involved in terms of the numbers of social workers Senators have in mind and the amount of money required to implement this provision as effectively as one would wish. Have we any idea of the amount of resources needed or how realistic it is to expect this provision to be implemented as of 1 January 1997? What are the prospects of achieving the targets the Senators are talking about if the Minister agrees there is a problem? From where does the date of 1 January 1997 come? Is it simply a convenient calendar date or is it based on an assumption of the availability of resources at that stage? Will one be in the same predicament on 1 January 1997 as one will be one month after the date of passing of the Bill? How far advanced is the planning for that eventuality?

Mr. Taylor: The information furnished to me by the Minister for Health, who has responsibility in this regard, is that it will be possible to operate the new responsibilities of the health boards as from 1 January 1997. There is no question of codding anybody as is evidenced by the fact that we are spelling out in this amendment that these new responsibilities for the health boards will come into operation on a fixed day. If we were trying to introduce a provision whereby the Minister for Health or I was to appoint the date on which section 6 would come into operation, there might be some force to saying that it could be an indefinite date in the future. However, we are setting it out in the Bill so that it will be fixed and, without any further action on my part, the Minister for Health or anybody else, those responsibilities will come into play on 1 January 1997.

There is no point our saying that we will bring them into operation this year — that will not be possible. The staff, training and other resources which will be necessary to operate the section will not be available and ready this year. That is why I must bring the practicality of the situation into line with what will [432] be in the legislation. It will be possible for the health boards to operate their new responsibilities from 1 January 1997.

It has to be remembered that the responsibilities being placed on the health boards in the context of domestic violence are new. They do not exist in any shape or form at present. The health boards do not have a role in this context at present. I felt it important that two new powers be brought into play in relation to domestic violence — the new involvement for the Garda and the new involvement and responsibilities for the health boards. Hence these new powers are included in the Bill. I could have brought the Bill forward without either or both of those involvements. It would have been a perfectly good and forward looking Bill if section 6 had not been introduced.

There is a role for the health boards but it will take a limited time to provide the resources, people and training necessary to enable the health boards to fulfil their responsibilities. I appeal to Senators to understand the need in this regard. If I said I expected the section would come into operation in a month's time that would be a cod because the resources will not be there in a month's time. I am reassured the health boards will be in a position to undertake their responsibilities — that will be their statutory requirement and obligation — as from the end of this year. I ask Senators to accept the amendment in that light.

Professor Lee: I do not doubt the Minister's genuineness. I did not intend the term “codding” in the sense of deceiving, rather I was indulging in an amiable illusion. Had Senator McGennis not drawn our attention to the matter and Senator Henry reinforced the point, I would not have been any the wiser as to why this was the case. I dare say most people who do not study the matter closely would not be any the wiser. I accept that resources and training are required and they may not be available immediately. However, [433] my question is not why it is not being done immediately but if one can be confident the resources required will be there——

Mr. Taylor: There will be a statutory responsibility.

Professor Lee: What does “statutory responsibility” mean? Who determines what resources are required? The scale of the shortage of social workers the Senators were talking about seems more than a minor detail. If the Minister is confident they will be there, I accept his word. It would be reassuring to have an idea of the scale of the investment the Minister for Health is prepared to make in order that this may be implemented in the way the Minister wishes.

Mrs. McGennis: I do not wish to be critical or party political on this point but in the public arena there is no differentiation between Government and Opposition — as politicians we are all tarred with the same brush. There has been a certain disregard among the public for politicians for some time. The involvement of health boards in situations of domestic violence has always been urgent but when a newspaper runs with the issue people become panic stricken. A recent example was the child who was beaten so badly by the man who was living with his mother at that time that he will be permanently disabled. That man had a history of abusing another child.

On Second Stage, I welcomed the extension of the powers of the health boards and the Garda. However, there is an urgent need for health board intervention. The Minister is being quite upfront and honest in saying that he is constrained in this Bill by the level of available finance. However, somebody has to be convinced about the urgency of this matter. Whatever needs to be done in terms of conciliation, arbitration and finance in order to get the health boards to do this should be done immediately.

[434] The dreadful case which came to light in the newspapers recently is only one of many. Will the section of the Bill which gives powers to the health boards to intervene and relieve a child of that nightmare and horror allow for a monitoring of the perpetrator in order to ensure that he does not abuse another child? Is that safeguard in the Bill? I intended to raise the question under section 6 and to table an amendment if necessary, but I was told that this new section gives those powers to the health boards.

As Senator Gallagher said, property rights should not supersede bodily integrity. One of the arguments used during the divorce referendum debate was that we should not allow abusers to remarry. Regardless of whether they are married, abusers move from family to family. Will the Minister assure the House that the powers given to the health boards will allow them to monitor abusers in order to ensure they do not abuse children in other families? I know that this is the responsibility of the Minister for Health. However, I think that the Minister should have kicked — as it is known he can — in order to get the necessary finance. He has been known to achieve his heart's desire in relation to other issues.

Mr. Taylor: I appreciate that. However, it is not just a matter of money but a question of gearing up to undertake important new tasks, the recruitment and training of qualified people and so on. The Minister for Health has assured me that the necessary resources and people will be in place by 1 January 1997. If there was any doubt about that I would not have dealt with the section in this way but would have provided that the section would come into operation on such a day as I would fix by order. That would have put it on an indefinite basis. Instead, I have written a specified date into the Bill as evidence of our good intentions in this matter. It will come into operation on that date and the resources will be in place. The powers [435] of the health boards on an ongoing basis are set out in sections 6 and 7, in particular, of the Bill.

Mrs. McGennis: Will it be ongoing?

Mr. Taylor: The powers are specified in the Bill; they are rather long.

Mrs. McGennis: Will they be able to track these offenders?

Mr. Taylor: Like anything else, I am not claiming that it will be 100 per cent successful. However, they will have new responsibilities and this will be an important new armoury in the fight against serious domestic violence which we are trying to address in this Bill.

Amendment put and declared carried.

Section 25 deleted.

Section 26 agreed to.

Title agreed to.

Bill reported with amendment and received for final consideration.

Question proposed: “That the Bill do now pass.”

Minister for Equality and Law Reform (Mr. Taylor): I thank you, Sir, and all the Members of the Seanad for their very helpful contributions on this important Bill. Tragically, incidents of domestic violence are increasing in Ireland at a frightening level. We know the number of barring orders which are made. We also know from our constituencies of the situations which arise, some of which were touched on by many Senators in the course of their contributions. This Bill has been greatly welcomed by the organisations which work with women, in particular. They appreciate the need for this legislation which has many new features. The safety order, the extended period of [436] barring orders, the new role and powers for the Garda and the new role of the health boards will all be very important.

I am pleased to have been able to introduce the Bill and I thank Senators for their help and understanding. I also pay tribute to the officials in my Department who worked long and hard to prepare the difficult provisions in the Bill. As we know from our discussion here this afternoon, it has many constitutional implications which always present great difficulties. One has to take great care where the Constitution comes into play that one does not put important legislation at risk on a constitutional basis. This is now a very good Bill and I thank Senators for their help.

Mrs. McGennis: I thank the Minister and his staff for bringing forward this legislation. The Bill is very welcome as it seeks to tackle the serious problem of domestic violence and to provide additional protection for victims of domestic violence. This is a major positive step on the part of the Government which acknowledges the problem and seeks solutions. Those who work in the area of domestic violence are very reassured to see this issue being actively addressed. There are some problems with the Bill, about which I have expressed concern. I urge the Minister to ensure that those issues are addressed and tackled, whether they have implications for the Department of Health, the Department of Justice or the Constitution. The passing of the Bill makes this is a very good day for the people of Ireland.

Dr. Henry: I congratulate the Minister and his officials on bringing forward this excellent Bill. I hope he will not think that I am at odds with him when I say I do not think that domestic violence has increased but rather that people are much less prepared to put up with it nowadays. This Bill shows that society is not prepared to put up with it either, which is most important.

I am glad about the additional role for the Garda. On Second Stage I said [437] that the initiation of a Garda domestic liaison squad would be useful. The Minister will be glad to know that I have already written to the Minister for Justice and the Garda Commissioner about that issue. I hope that he will support me in this area as this legislation would not need to be used quite so much if such a squad existed.

Ms. Gallagher: This is a fine piece of legislation for which many women in my constituency were waiting. I referred on Second Stage to an elderly woman who is abused in her home by her son. Such people deserve to be protected in their old age. This legislation will be of practical benefit to thousands of people. It was well debated in this House and is well thought out.

I congratulate the Minister, his advisers and officials on a job well done. A great amount of effort was expended examining this area, where so many gaps and flaws existed, and the problems have been rectified by the legislation. I am proud that we have achieved something by passing this Bill into law.

During the Second Stage debate I stated that I was contacted by women regarding the conjugal rights to which their husbands claim entitlement. It is most important that women are made aware of their rights under this legislation. In terms of education and public awareness, we must consider how people can be made aware of their rights as a result of these important and crucial changes. Many women are unaware of this legislation and do not know what the law can do to remove them from horrific situations. That is why I believe education is very important in this area. As I stated earlier, however, this is an excellent Bill.

Professor Lee: I congratulate the Minister and his officials on what is very good legislation. Members may believe that it could have been better, but those involved were working within constraints beyond their control. It is as good a piece of legislation that could [438] have been introduced in the constitutional circumstances.

I echo Senator Gallagher's comments about the importance of diffusing knowledge and information about the legislation among those most likely to benefit from it. I appreciate the way in which the Minister dealt with the debate, he responded fairly and reasonably to the points raised by Members.

Question put and agreed to.

An Leas-Chathaoirleach: When is it proposed to sit again?

Mr. Cosgrave: At 2.30 p.m. on Wednesday next.