Domestic Protection

Reformed Law

The Domestic Violence Act 2018 amends and consolidates the law in relation to domestic violence. The Act also includes new provisions that were required in order for Ireland to be able to ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, more commonly known as the Istanbul Convention. Ireland signed the Istanbul Convention in November 2015.

The Act allows a person to apply for an emergency barring order where that person has lived in an intimate and committed relationship with the respondent without being their spouse or civil partner or where that person is the parent of an adult respondent. It also includes a provision to criminalise forced marriage.

The Act removed the underage marriage exemption in order to help to protect minors against forced marriage, requiring both intended spouses to be at least 18.

Safety Order

A safety order can be sought by:

• a spouse or former spouse;
• a civil partner or former civil partner;
• a person who lived with the respondent in an intimate and committed relationship;
• a parent of an adult respondent;
• a person who lives with the respondent in a primarily non-contractual relationship; or
• a person who has had a child with the respondent.

The actions that can be prohibited through a safety order include: using or threatening the use of violence against, molesting or putting in fear, the applicant or a dependent; watching or besetting a place where the applicant or a dependant resides; and following or communicating (including electronically) with the applicant or a dependant.

In deciding whether or not a person is residing with another person in a relationship, the basis of which is not primarily contractual, the court shall have regard to:

• the length of time those persons are residing together;
• the nature of any duties performed by either person for the other person or any kindred person of that other person;
• the absence of any profit or of any significant profit made by either person from any monetary or other consideration given by the other person in respect of residing at the place concerned; and
• any other matters the court considers appropriate in the circumstance.

Effect of a Safety Order

Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires, it shall issue a safety order, i.e. it will prohibit the respondent to the application from doing one or more of the following:

• using or threatening to use violence against, molesting or putting in fear, the applicant or a dependent;
• if he or she is residing at a place other than the place where the applicant or the dependent resides, watching or besetting a place where the applicant or the dependent resides; and
• following or communicating (including by electronic means) with the applicant or the dependent person.

A safety order may be subject to such exceptions and conditions as the court may specify.

Safety orders can remain in place for 5 years (or for a shorter period if the court so specifies). Before the expiration of that period another safety order can be made for a further period of up to 5 years.

Barring Order

Barring orders can be sought by a spouse or former spouse, by a civil partner or former civil partner, by a person who lived with the respondent in an intimate and committed relationship or by a parent of an adult respondent.

The court may make a 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 actions that can be prohibited through a barring order include: using or threatening the use of violence against, molesting or putting in fear, the applicant or a dependent; attending at, or in the vicinity of, or watching or besetting a place where the applicant or a dependant resides; and following or communicating (including electronically) with the applicant or a dependant.

A barring order may be subject to such exceptions and conditions as specified by the court.

In respect of a person who is a cohabitant but not a spouse, the court shall not make a barring order in respect of the place where the applicant or dependent person resides if the respondent has a legal or beneficial interest in that place and the applicant has no legal or beneficial interest, or the applicant’s legal or beneficial interest is, in the opinion of the court, less than that of the respondent.

Where in proceedings the applicant states the belief, in respect of this matter, that he or she has a legal or beneficial interest in that place which is not less than that of the respondent, then that belief shall be admissible in evidence.

Barring orders can remain in place for 3 years (or for a shorter period if the court so specifies). Before the expiration of that period another barring order can be made for a further period of up to 3 years.

Interim Barring Order

An interim barring order can be made where there are reasonable grounds to believe that there is an immediate risk of significant harm to the applicant or a dependant and the making of a protection order would not be sufficient to protect them. The court can make an interim 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 actions that can be prohibited through an interim barring order include: using or threatening violence against, molesting or putting in fear, the applicant or a dependent; attending at, or in the vicinity of, or watching or besetting a place where the applicant or a dependant resides; and following or communicating (including electronically) with the applicant or a dependant.

An interim barring order may be made in a one-sided application (ex parte), in which case it shall have effect for a  period not exceeding 8 working days. The applicant for an ex parte interim barring order must swear an affidavit or  an information stating whether the property from which it is sought to bar the respondent on an interim basis is also the respondent’s place of business. The interim barring order shall cease to have effect once the application for a barring order has been determined.

Emergency Barring Order

An emergency barring order may be made where there are reasonable grounds to believe that there is an immediate risk of significant harm to the applicant or a dependant. A person may apply for an emergency barring order where that person has lived in an intimate and committed relationship with the respondent without being their spouse or civil partner or where that person is the parent of an adult respondent.

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 applicant may apply for an emergency barring order even if they have no legal or beneficial interest in that place or an interest which is less than the legal and beneficial interest of the respondent.

The actions that can be prohibited through an emergency barring order include using or threatening violence against, molesting or putting in fear, the applicant or a dependent; attending at, or in the vicinity of, or watching or besetting a place where the applicant or a dependant resides; and following or communicating (including electronically) with the applicant or a dependant.

An emergency barring order may be made ex parte and shall have effect for a period not exceeding 8 working days. Once the period granted in the emergency barring order has expired, no further emergency barring order may be made until a period of one month has elapsed from the date of expiry of the previous order, unless the court is satisfied that there are exceptional circumstances.

The applicant for an ex parte emergency barring order must swear an affidavit or an information stating whether the property from which it is sought to bar the respondent on an emergency basis is also the respondent’s place of business.

Protection Order

A protection order may be made where there are reasonable grounds to believe that the safety or welfare of the applicant or a dependant is at risk. The actions that can be prohibited through a protection order include using or threatening the use of violence against, molesting or putting in fear, the applicant or a dependent; watching or besetting a place where the applicant or a dependant resides; and following or communicating (including electronically) with the applicant or a dependant.

The applicant for a unilateral (ex parte) protection order must swear an affidavit or an information. This material is to be served on the respondent with a copy of the order.

Criteria

In deciding an application for a safety order, barring order, interim barring order, emergency barring order, protection order or in any application to vary or discharge such an order, the court will have regard to:

• any history of violence inflicted by the respondent on the applicant or a dependent person;
• any conviction of the respondent for an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001 that involves loss to, or is to the prejudice of, the applicant or a dependent person;
• any conviction of the respondent for an offence that involves violence or the threat of violence to any person;
• whether any violence inflicted by the respondent on the applicant or a dependent person is increasing, or has increased, in severity or frequency over time;
• any exposure of a dependent person to violence inflicted by the respondent on the applicant or any other dependent person;
• any previous order under this Act or the Act of 1996 made against the respondent with regard to any person;
• any history of animal cruelty by the respondent;
• any destruction or damage caused by the respondent to the personal property of the applicant, the respondent or a dependent person, or any place where the applicant or a dependent person resides;
• any action of the respondent, not being a criminal offence, which puts the applicant or a dependent person in fear for his or her own safety or welfare;
• any recent separation between the applicant and the respondent;
• substance abuse, including abuse of alcohol, by the respondent, the applicant or a dependent person;
• access to weapons by the respondent, the applicant or a dependent person;
• the applicant’s perception of the risk to his or her own safety or welfare due to the behaviour of the respondent;
• the age and state of health (including pregnancy) of the applicant or any dependent person;
• any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or a dependent person which is caused directly by fear of the behaviour of the respondent;
• whether the applicant is economically dependent on the respondent;
• any other matter which appears to the court to be relevant to the safety or welfare of the applicant and any dependent person.