Victims’ rights toughened by Domestic Violence Act

Law Society Gazette, Ireland/February 26, 2019

The Domestic Violence Act 2018 was commenced in January. It amends and consolidates the law on domestic violence and is one of the most significant family law statutes introduced in the past 20 years.

Great credit is due to members of the Law Society’s Child and Family Law Committee who, for the past 20 years, have been advocating for reform of the domestic violence laws.

In particular, Joan O’Mahony, Noeline Blackwell and Cormac Ó Culáin, due to their submissions and work on this act, have made an immense contribution to this legislation.

More prescriptive

In determining applications under this act, the court must have regard to all the factors or circumstances that it considers may have a bearing on the application, including, where relevant, a non-exhaustive list of 17 factors or circumstances, which are set out in section 5(2) of the act.

The court must give reasons for its decision to grant or refuse an application or, if applicable, give reasons for its decision to make the specified order subject to exceptions or conditions, and to vary any exceptions or conditions (section 17).

Where the court forms the opinion that there are reasonable grounds to make the appropriate order, the language of the act states that the court ‘shall’ make the appropriate order, whereas, in the 1996 act, the court ‘may’ make the order.

The Courts Service is now obliged to provide each applicant with information on, and contact details for, support services for victims of domestic violence (section 28).

In (criminal) proceedings relating to a breach of an order under the act, the judge ‘shall’ exclude from the court during those proceedings all persons, except officers of the court, persons directly concerned with those proceedings, bona fide representatives of the press, and such other persons (if any) as the judge may in his or her discretion permit to remain (section 34).

In the same proceedings, a new offence in relation to publication of information about the parties to enable their identification is created by section 36 of the act, and the penalties are set out in section 37.

Emergency barring orders

The court can make an emergency barring order to direct a respondent to either leave a place or to prevent them from entering a place where the applicant or a dependant resides.

The granting of an emergency barring order may prohibit the respondent using or threatening the use of violence against, molesting or putting in fear, attending at, or in the vicinity of, or watching or besetting a place where the applicant or a dependent person resides, and following or communicating (including electronically) with the applicant or a dependent person.

A person may apply for an emergency barring order where:

a)   The applicant is not the spouse or civil partner of the respondent and has lived in an intimate and committed relationship with the respondent prior to the application (note: no mandatory minimum period of residence is required), or

b)  The applicant is the parent of an adult respondent, and

c)   The applicant has no legal or beneficial interest in the dwelling, or an interest that is less than the legal and beneficial interest of the respondent, and

d)  There are reasonable grounds to believe that there is an immediate risk of significant harm to the applicant or a dependant.

An emergency barring order may be made ex parte and will remain in force for a period not exceeding eight working days (whether ex parte or on notice).

Where an emergency barring order has been made against a respondent, no further emergency barring order shall be made against the respondent on application by, or on behalf of, the same applicant unless a period of at least one month has elapsed since the expiration of the last day of the period specified in the first-mentioned order, unless the court is satisfied that there are exceptional circumstances that justify the making of a further order.

Changes to orders

Safety orders – the requirement for a couple to be living together in an intimate relationship has been removed (and, consequently, a protection order). Now, under the 2018 act, the parties simply have to have been in an intimate relationship at the time of the application, with no reference to living together – section 6(1)(a)(iii).

Barring orders – the requirement for a couple to have been living together six out of the previous nine months in an intimate relationship has been removed as one of the prerequisites to an application for a barring order (and, consequently, an interim barring order).

Now the parties must have simply lived together in an intimate relationship prior to the application, with no reference to a minimum time period – section 7(1)(c).

There is now additional relief prohibiting following or communicating with the applicant or dependant. In addition to the usual reliefs granted for barring, safety, interim barring, and protection orders (and the new emergency barring order), the court can now, as part of these orders, prohibit the respondent from “following or communicating (including by electronic means) with the applicant or the dependent person”.

Any information sworn as part of an application for an interim barring order must now state whether the property from which it is sought to bar the respondent on an interim basis is also a place of business of the respondent, or includes or abuts a place of business of the respondent.

The formalities in relation to providing a note of evidence, and the information or affidavit sworn in ex parte applications for interim barring orders, now apply in an equivalent manner as applicable to ex parte applications for protection orders – section 10(9).

Voice of the child

The court may seek the views of children where a safety or barring order is sought on behalf of a child. The court may appoint an expert to assist it in ascertaining the views of the child (section 27).

Special sitting of the District Court

A member of the Garda Síochána not below the rank of sergeant may request the Courts Service to arrange (a) a special sitting of the District Court to facilitate the making and determination of an application for an interim barring order, an emergency barring order, or a protection order, and (b) an application for a safety order or a barring order where necessary to facilitate the making of interim barring orders, emergency barring orders, or protection orders (see section 24).

Coercive control

Section 39 defines the new criminal offence of coercive control as knowingly and persistently engaging in behaviour that is controlling or coercive, that has a serious effect on a spouse or a person who is, or was, in an intimate relationship with the alleged offender, and that a reasonable person would consider likely to have a serious effect on a relevant person.

The penalty on summary conviction is a Class A fine or imprisonment for a term not exceeding 12 months, or both, while the maximum tariff on conviction on indictment is a fine or imprisonment for up to five years, or both.

Other changes

• An offence of forced marriage (section 38).
• A protection against cross-examination conducted in person by the applicant or respondent of the other party or a dependant (section 16).
• The court can direct that an order be served personally by a member of An Garda Síochána (section 18).
• Applicants for domestic violence orders and those alleging breach of orders may give evidence by live television link, both in civil cases and in criminal cases, for breaches of orders with the leave of the court. Those under 18 may give evidence in this manner unless the court sees good reason to the contrary (section 25).
• The applicant can be accompanied to court by a person of his or her choosing to provide support during a civil hearing (section 26).
• The court can recommend, when making an order under the act, that the respondent engage with services, such as programmes aimed at perpetrators of domestic violence, addiction or counselling services. The court may also consider, when hearing the application in question, the engagement of the respondent with any such programme or service, and may also consider the applicant’s view of the effect of such engagement on the respondent (section 29).
• Where a violent or sexual offence is committed by a person against his or her spouse, civil partner or person with whom he or she is in an intimate relationship, that fact shall be an aggravating factor at sentencing (section 40).
• Marriage exemptions permitting those under 18 to marry have been repealed (section 45(1)).
• Transitional and continuation arrangements have been put in place to ensure a smooth transition.

The changes in the act will, first of all, strengthen the rights for victims of domestic violence and will, secondly, assist in enabling Ireland to ratify the Council of Europe convention on preventing and combating violence against women and domestic violence (the Istanbul Convention).