- To provide for the hearing at the same time of applications to the court for other orders regarding custody and access, maintenance, conduct leading to the loss of home, restriction on the disposal of house chattels, and child care orders (Law Society of Ireland, 2001).
REMEDIES AVAILABLE UNDER THE 1996 ACT
The Domestic Violence Act 1996 allows for the provision by the Civil Courts of certain remedies to assist victims feel safe in their own home. For the first time the Act provides a civil remedy for cohabiters, parents of adult non-dependant children, homosexual couples, adult siblings and others who fall under a new category of persons “residing with each other in a non-contractual relationship” (O’Herlihy, 2002). These remedies include: Safety Order, Barring Order, Interim Barring Order, and Protection Order, which I will now look at in detail.
Safety Order
Section 2 provides for the granting of a safety order. This is a new remedy introduced by the 1996 Act, which is in essence a long-term protection order. This order does not put the respondent out of the residence but prohibits the respondent from engaging in behaviours such as: using or threatening violence, molesting or putting in fear the applicant or dependant person, and inhibiting the respondent from besetting or watching the place where the applicant lives if they do not reside with them (van Dokkum, 2004).
However, this new provision contains a number of restrictions and preconditions. The Law Reform Commission of the Law Society has heavily criticised the insertion of a requisite cohabitation period of six out of the previous twelve months (Kennedy, 2003).
Barring Order
Section 3(2) of the Act provides for the making of a barring order. This is an order directing the respondent to leave the place of residence if they are residing with the applicant or that dependant person. If they are not residing with them, the order may prohibit them from entering such a place until further order of the court. A safety order directs the respondent not to use or threaten to use violence against, molest or place in fear the applicant or dependent persons and not to watch or beset the place where the applicant or dependent persons live. Barring orders can last up to three years and be renewed (Law Society of Ireland, 2001).
Section 3(4) is one of the most controversial provisions of the Act as it imposes a requirement on the applicant who isn't a spouse to possess an equal or greater beneficial or legal interest in the property from which they seek to bar the respondent. Therefore, in a situation where abusive behaviour clearly warrants a barring order but the victim's interest in the property is less than the abuser's, the victim of abuse will be prevented from availing of a barring order (Kennedy, 2003). “Does this mean that the legislature values property rights to a greater extent than the fundamental right to bodily integrity?” (Kennedy, 2003)
Also, as with the safety order, a barring order is unavailable to a person whose marriage has been annulled and fails to meet the cohabitation requirements. Thus, a victim who lived in an abusive relationship for twenty years, subsequently got the marriage annulled, moves out of the home and applies for a barring order more than nine months later will not be entitled to protection. In this respect, the Act is inadequate for yet another category of victims (O'Herlihy, 2002).
Interim Barring Order
The District Court is now empowered to make an interim barring order as a temporary order pending the determination of barring proceedings and in exceptional cases could originally be obtained on an ex parte basis where there was an immediate or serious risk and a protection order would not be sufficient (Law Society of Ireland, 2001).
However, this provision was ruled unconstitutional due to the absence of time limits, which represented a breach in ordinary rules of a fair procedure in a judgment of the Supreme Court in 2002 (Kennedy, 2003). It was felt by the court that this order had harsh consequences for the respondent and this spouse should be entitled to having their defence heard. The response to this was the Domestic Violence (Amendment) Act 2002. This order would now lapse after eight days unless the court confirms the order after hearing the respondent’s evidence. Also, a note of the evidence must be served to the respondent following an ex parte interim barring order being granted (van Dokkum, 2004).
Protection Order
Section 5 of the 1996 Act allows for the making of a protection order, which gives relief similar to that of the safety order and can be obtained on an ex parte basis. This order does not compel the respondent to leave residence, but requires them to refrain from using or threatening to use violence against, molest or put in fear the applicant or dependent person, or from watching or besetting the place in which the applicant or dependent person resides. This order has been aptly described as "the lowest common denominator of relief protecting those in the interim who may qualify for a safety or a barring order” (O'Herlihy, 2002). If granted, a protection order will only last until the determination of barring or safety order proceedings.
Other Sections
Section 6 of the 1996 Domestic Violence Act empowers the Health Board to seek a remedy on behalf of an aggrieved person entitled to apply but perhaps are too traumatized to do so. Thereby filling the gap in previous legislation which meant that a child experiencing or witnessing violence in the home was dependent on one of its parents to apply for a barring order (van Dokkum, 2004).
Section 8 covers the area of the protection of household chattels. This section prohibits a spouse from disposing of household property during domestic violence proceedings until a determination by the court (Law Society of Ireland, 2001).
Breach of Orders
Orders under the Act can be enforced by the Gardai, which makes these orders more attractive than injunctions. Gardai may have powers to arrest under the Domestic Violence Act 1996, the Criminal Damage Act 1991, the Non-Fatal Offences against the Person Act 1997, the Dublin Police Act 1842 or the Criminal Law (Rape) Amendment Act 1990. The Gardai have a duty to fully investigate all incidents of domestic violence promptly, including reports received from a third party. However, research suggests that victims of domestic violence may be in greater danger of serious violence after the legal system intervenes. Section 18 details the power to arrest under the legislation but is not mandatory and where discretion is involved this leads to differences in approach (Law Society of Ireland, 2001).
JUDICIAL VERDICTS IN CASE LAW
In: McA. V McA. [1981], the wife based her application on cruelty without alleging that her husband had been physically violent towards her. She claimed that her health had been adversely affected by her husband’s refusal to communicate with her over a long period of time, and only in a formal way when absolutely necessary (van Dokkum, 2004). Costello J. made a barring order and removed the husband from the house, an important decision as it appeared to show that the intention to impair a spouse’s mental health is as worthy of remedies under the Act as is the impairment of physical health.
However, in: O’B. V O’B. [1984], the Supreme Court found that the mere insensitivity of the respondent towards the applicant was insufficient. In this case the actions of the husband included: rudeness towards the applicant in front of their children, efforts made by him to dominate the running of the home, and a lack of sensitivity towards his wife, resulting in nervous strain (van Dokkum, 2004). This contradicts the first ruling in McA. V McA., showing yet another inadequacy in the rulings surrounding the Domestic Violence Act.
INADEQUACIES
In the aforementioned case: O’B. V O’B. a barring order was initially granted and the respondents appeal of this allowed the barring order to be temporarily dropped, allowing the respondent to re-enter the home until a final ruling was made. This could have placed the applicant in grave danger and no doubt added to her previous nervous strain. Also, the different rulings in each case show that different judges interpretations of the Act cause inconsistencies with regard to who deserves relief.
Fine Gael Seanad Justice & Equality Spokesperson Senator Sheila Terry, feels that Gardai need to be equipped with video cameras to take to domestic violence crime scenes and gather evidence at an early stage, as happens in the U.K. When speaking of this need she stated:
On average there are 22 incidents of domestic violence every day, yet according to the most recent Garda Annual Report fewer then one in ten incidents resulted in conviction in 2002. The number of convictions between 2001 and 2002 dropped 49% from 1,286 to 651. Yet the number of reported incidents rose from 9,983 to 10,248 in the same period. A one in ten conviction rate will do nothing to encourage women to report crimes. Studies have shown that 46% of reports of domestic violence are retracted (Fine Gael, 2004:1).
A leading expert in family law matters, Michael Freeman, has described the remedies for domestic violence as being ‘of little more value than sticking plaster is to a broken leg’ (Fine Gael, 2004: 2).
CONCLUSION
In widening the category of persons entitled to protective orders, it is clearly a socially conscious and practical piece of legislation open to the changing nature of adult relationships. As a whole, it deserves positive appreciation in relation to the social aim of increasing the options of protective orders available to those often-silent victims of domestic violence. It provides “a short sharp shock” for the violent perpetrator and in doing so says that domestic violence is no longer a “behind closed doors” familial phenomena (Horgan, 1998).
Many of the weaknesses of the Act are as a result of drafting oversights and the constitutional restraints that have been discussed. While the Act presently may cause injustice to certain categories of persons not covered, legislative intervention may easily remedy these failings given that the core principles of the Act are fundamentally sound. Domestic violence is a recognised problem with remedies available. It is therefore unrealistic to say that victims are hidden away with no help.
REFERENCE
Dobash, R.E. & Dobash, R. (1992) Women, Violence and Social Change. London: Sage Publications.
Fine Gael (2004) Gardai Need Cameras to Film Domestic Violence Injuries. Dublin: National Press Office.
Horgan, R. (1998) Domestic Violence: A Case for Reform? Part 1- Defining Domestic Violence [online] Irish Journal of Family Law. Available from: : IJFL 3. [2004]
Kennedy, C. (2003) Domestic Violence: How We Answer Their Cries For Help [online] Available from: . IX [2004]
Law Society of Ireland (2001) Family Law. London: Blackstone Press
McA. V McA. [1981] I.L.R.M. 357
O’B. V O’B. [1984] I.L.R.M. 1
O'Herlihy, E. (2002) An Overview of the Strengths and Weaknesses of the Domestic Violence Act 1996 [online] Available from: . VIII
OSSCork (2000) About OSS Cork [online] Available from: / [2004]
UN General Assembly (1993) The United Nations Declaration on the Elimination of Violence against Women. Switzerland: Offices of the United Nations
van Dokkum, N. (2004) Domestic Violence. Social Care 3 Law Class Notes. Unpublished.
Wallace, M. (1999) Domestic Violence and the Enforcement of Law in Ireland. [online] Available from: [2004]
