Court ruling contributes to domestic violence fear

BY KERRY LAWLESS


     
Within minutes of the judgement, the telephone started to hop at Women's Aid and other groups around the country. There had been no advance notice of the announcement and the gardaí were caught unawares, unsure as to the legality of current interim orders and their powers to protect women and children at risk from violence in their own homes
The recent Supreme Court ruling declaring aspects of the Domestic Violence Act, 1996 unconstitutional has reopened the debate on men and women's rights in family law cases.

The unanimous decision found the procedures that allow a spouse or parent to obtain an interim barring order in the District Court to be unconstitutional because of the absence of time limits on the operation of such orders. The absence of a specific time limit, in particular where it is made ex-parte, deprives a person against whom such an order is made from the protection of the principle of a right to be heard in his or her own defence, the court noted.

In short, the principle of the legislation stands up to scrutiny; it is the courts' delay in administering the law that is unacceptable. The need for interim barring orders is not in question; it is the lack of time limits that creates a conflict of rights.

The Domestic Violence Act is not gender specific; it aims to protect anyone at risk of domestic violence in his or her own homes. It protects elderly parents from abusive children, lesbians and gay men from a violent partner, vulnerable children from threatening parents.

It is domestic violence that is gender specific. Most domestic violence is perpetuated by men against women within intimate relationships. Not all, but most. That is the reality of our society. Unsurprisingly then, the majority of interim barring orders are granted for the protection of women and children from violent men. This means that abusive men will be barred from the family home in order to offer some level of protection to their families.

The Domestic Violence Act provides for victims or potential victims to seek a safety order, a protection order, an interim barring order or a barring order against an alleged attacker within the home.

Safety or protection orders require the alleged perpetrator not to assault or threaten the applicant, but do not require him or her to leave the family home. Barring orders are granted when it is thought these measures may not be effective, and then the alleged perpetrator of the violence is ordered to leave the family home. Where there is thought to be an immediate threat to the person seeking protection, or dependant children, such orders can be granted on an interim and ex parte basis.

If an order is granted ex-parte, it can mean that the person against whom the allegations are made may not be aware of them until a member of the Garda Siochána informs them that he or she is the subject of a barring order. The interim order remains in force until a full barring order is sought, when the subject of the order can make his/her case. But this can take many months.

Consequently, the failure of the courts to deal with applications for interim barring orders promptly can create injustice. It can mean that those wrongly accused of violent behaviour can find themselves barred from the family home for months on end until the case is heard.

Lobbyists for men's rights have argued that this infringes the rights of those accused of domestic violence, and tilts the balance in subsequent family law proceedings. Many family lawyers concede that interim barring orders are, at best, a blunt instrument to deal with a serious problem, and the flaws in their operation have been long apparent. Women's groups recognise the distress the court delays create for all concerned and have long argued that the operation of ex-parte interim barring orders be based on the earliest possible return date for the full hearing.

Delivering the ruling of the five-judge court, the Chief Justice, Justice Keane, said the legislature's failure to impose any time limits on interim barring orders was "inexplicable". In this he was referring particularly to those interim orders granted ex-parte, that is without the alleged abuser being present.

But is it "inexplicable" that legislators resisted putting time limits into the legislation? Hardly. At the time of its drafting, they were well aware that the court system simply could not cope with its current workload and would be unable to work within any specific time limits laid down in law.

The courts dealt with more than a quarter of a million matters last year, an increase of 15 per cent on the year 2000. The district courts are struggling to cope with the volume of cases, especially in the area of family law, where matters such as safety, protection and barring orders are dealt with. The volume has been increasing steadily over the past number of years, and the figures show a 40 per cent increase over the past five years.

Much media comment focused on Justice Keane's description of the absence of specific time limits in the legislation as "draconian", prompting men's groups to call for compensation for those men adversely affected. In its statement, AMEN said: "It is incredulous that legislators should have allowed such a draconian piece of legislation to be put on the statute books without any regard for checks and balances and the need to safeguard against abuse."

However, the ruling made it clear that "it is not the existence of a jurisdiction to grant interim orders on an ex-parte basis which creates the serious constitutional difficulty. It is the manner in which the legislation has provided for the granting of such orders."

So the criticism was not of the law itself but of the failure of our creaking family law system to respond in good time.

The Chief Justice was giving judgement on an appeal arising from District Court proceedings by a Dublin man who argued he had been deprived of his right to be present in court to hear information sworn by his wife. She claimed he had a drink problem, had hit her and pulled her around by the hair and that the children had witnessed that.

He said he was distressed by these claims, which were "largely untrue" and claimed he was deprived of his right to confront or cross-examine his wife and that the court had failed to vindicate his good name.

Which parts of his wife's claim were "largely untrue", that his alcohol abuse created turmoil in the family home? That he hit his wife? Or that his children had witnessed the violence? Interim orders were introduced as an emergency measure to protect such victims of domestic violence between application date and the date of the full hearing.

It is without question that the present delays in processing the applications have discriminated against some men. As the Supreme Court judgment points out, the consequences can be grave. If the full hearing is many months away, and the barred person has to be out of the family home for this time, this can have an impact on other decisions made in family law proceedings, particularly over children. When deciding on the custody of children, judges are bound to consider their best interests, and often feel that the stability of existing family arrangements best meets them. If the father has spent a considerable amount of time out of the home, the judge could rule that the mother has custody, in the interest of stability.

There were 1,059 applications for interim barring orders last year. Of these 1,007 were granted by the District Court with 36 refused and a further 116 withdrawn or struck out. Less than 4% of all applications in 2001 were refused by the court, hardly the abuse of power that the recent media attack on women's groups would suggest.

While the Supreme Court has rightly highlighted the current gap between the granting of the interim order and the full hearing as the major flaw in the existing legislation, the judgement clearly acknowledges that interim barring orders may often be necessary to protect vulnerable members of a family.

Its insistence that the person against whom the allegations are made should have an early opportunity to rebut them and that there should be protections of his (or her) constitutional rights built into the legislation cannot be faulted. Its naïvete in how quickly that can be achieved, however, can be faulted.

Within minutes of the judgement, the telephone started to hop at Women's Aid and other groups around the country. There had been no advance notice of the announcement and the gardaí were caught unawares, unsure as to the legality of current interim orders and their powers to protect women and children at risk from violence in their own homes.

Sinn Féin Spokesperson on Family Affairs, Seán Crowe TD, has expressed his concern at the serious ramifications of the Supreme Court's decision to declare interim barring orders unconstitutional.

"The Dublin South-West Deputy said: "The ruling of the Supreme Court opens up a terrifying vista for many women around the state. This decision coupled with the delays in getting free legal aid has serious ramifications for many spouses and their families that unfortunately find themselves in a violent and abusive relationship.

"Women's Aid had already reported that people formerly restrained by interim orders, were returning home because they were aware of this development. Some people were also confused about the distinction between an interim and an actual order and were "being browbeaten into accepting someone back into a violent situation."

In response to concerns raised in the Dáil, Michael McDowell claimed people could apply for protection orders, which would go a "considerable distance to dealing with the anxieties mentioned". How is that so? Safety or protection orders do not require an abuser to leave the family home, but simply require the alleged perpetrator not to assault or threaten the applicant. This is no comfort to victims of violence.

The Minister for Justice went on to tell the Dáil that there is nothing in the Supreme Court judgment on domestic violence legislation that will prevent the Dáil and Seanad from enacting a new "fair and effective" provision. The Attorney General would be advising him on the changes needed in the legislation and until then he could not make any definitive statements on the issue. And what are women to do in the meanwhile?

Court delays and lack of refuge spaces mean that women and children could be at serious risk while awaiting a full hearing for a barring order. Delays are usually in the region of six to eight weeks, but currently stand at ten to twelve weeks. This means that women wait between two and three months before a violent partner can be barred from the home.

As Seán Crowe TD explains: "While the issue of barring orders is being reviewed it is essential that measures be taken to protect women who may be under threat. A full hearing on a barring order can take months and during that time the woman seeking the order remains vulnerable to a threat in her own home.

"Since 1996 alone, 83 women have been killed in this state, 40% of them at the hands of partners or ex-partners. The issue of barring orders is one of great seriousness, it is at the time of seeking to obtain the order that the woman is at greatest risk.

"I would ask the Minister for Justice, as he reviews this legislation to be conscious of the need to protect those living in fear and to provide sufficient resources to allow the Courts to process barring order applications as quickly as possible, allowing the rights of all parties to be respected."

Women's groups and family law advocates have long argued that the Domestic Violence Act, 1996, should be amended to include a specific time period on the operation of ex-parte interim barring orders based on the earliest possible return date for the full hearing.

As Women's Aid spokesperson Rachael Mullen explained: "Interim barring orders were introduced as an interim measure between application date and the date of the full hearing. Women's Aid has always recommended that a period of no longer than seven days should pass before a full hearing takes place."

Other groups have called for a partial relaxation of the in camera ruling in family law cases. As Margaret Roche, Chairwoman of AIM Family Services, outlines: " If the public is aware of the reasons for the making of interim barring orders this might remove the substantial amount of rumor and misinformation surrounding this area."

This goes to the heart of the problem. At present there is no data to challenge the wild accusations and claims made by opponents of the Domestic Violence Act. People not directly involved continue to underestimate the extent and level of violence perpetrated against women and children in their own homes. It seems that, however many Trevors we see on our TV screens, we will always believe that domestic violence is something that happens to other people in other places.