Under the Domestic Violence Act 1996, the following categories may apply for orders for domestic protection:
- a spouse of the respondent;
- a person who has lived with the respondent as husband and wife for six of the twelve preceding months;
- a parent of the respondent, where the respondent is aged 18 years or upwards and is not dependent; or
- a person aged 18 years or upwards if residing with the respondents in a non-contractual relationship.
The Health Service Executive may apply for a safety order on behalf of any ocf the above persons.
By the legislation in relation to civil partners and cohabitants in 2010 and by the Civil Law (Miscellaneous Provisions) Act 2011 the applicant may be:
- the civil partner of the respondent or a person who is a party to a civil partnership that has been dissolved;
- a person who is not the spouse or civil partner of the respondent, is not related within the prohibited degrees of relationship but lived with the respondent in an intimate and committed relationship prior to the application for a safety order;
- a parent of the respondent, where the respondent is a person of full age who is not, in relation to the parent, a dependent person;
- a person of full age who resides with the respondent in a relationship the basis of which is not contractual or is a parent of a child whose other parent is the respondent.
By including a parent of a child whose other parent is the respondent as a qualifying applicant, the 2011 Act in effect covers unmarried parents who do not reside together.
The 2011 Act extends the provisions to include persons in a same-sex relationship who are not civil partners but have lived together for a period of at least six months during the nine months preceding the application.
Criteria for Barring Order
The criteria for the grant of a barring order are higher than those in respect of a safety order because the order is more far-reaching.
The qualifying criteria for an applicant for a safety order are broader than that for a barring order. A person over 18 and not residing or residing in a non-contractual relationship with the respondent is not entitled to apply for a barring order but may seek a safety or protection order.
There is a statutory test applicable where the person is not a spouse. A cohabiting person seeking a barring order must prove that he or she has lived with the respondent as ‘husband and wife’ for at least six of the previous nine months. Similarly, in relation to an application by a parent/child, the applicant must have a legal or beneficial interest in the property which is at least equivalent to that held by the respondent.
The court must consider the safety and welfare of both the applicant spouse and any dependent child in respect of whom the respondent is in loco parentis, where the dependent resides at the property concerned.
Where the applicant for a barring order is a cohabitant or parent, the above test applies for the property in respect of which sole rights of occupancy is sought. They must have equal or better beneficial rights. This was deemed necessary from a constitutional compliance perspective.
The onus of proof is lower for a safety order. It may be granted where there are reasonable grounds to believe that the safety or welfare of the applicant or a dependent person so requires. It requires the respondent not to use or threaten the use of violence against, molest or put in fear the applicant or a dependent person.
The respondent is not necessarily removed from the family home. If the parties do not reside together, the order may prohibit the respondent from attending at the place where the applicant or dependent resides. It does not, however, require that he or she leaves a property.
The safety order may be put in place for up to five years.
Interim protection may be granted in respect of a barring or safety order. An interim barring order may cause a person to be removed from his home on an ex parte (unilateral) application. The legislation envisages that this may happen only in exceptional circumstances, where it is deemed necessary and expedient in the interests of justice.
Barring orders that are too broad do not allow for sufficient speedy opportunity for the respondent to challenge where there are a number of adjournments, which may breach due process and fair procedures. The requirement to protect a person from physical violence or fear of physical violence, while legitimate, must not be the subject of overbroad protection. The Constitutional rights of the respondent must be protected and vindicated. The abridgement of and delimitation of rights must be proportionate.
The Supreme Court held that the failure of the 1996 Act to provide a fixed period of relatively short duration during which an interim barring order made ex parte was to be enforced, to be unconstitutional where it was not subject to prompt review. In the particular case, the interim barring order resulted in the forcible removal of the applicant from the family home and company of his children, on the basis of allegations in respect of which he had no opportunity to be heard.
It treated him as having committed a criminal offence resulting in a possible custodial sentence in the event of noncompliance and made him liable for arrest without warrant. This happened without the possibility of compensation from the applicant.
Accordingly, the Supreme Court held that the failure to provide for a time limit on the interim barring order was unconstitutional. The Domestic Violence (Amendment) Act 2002 provided that an interim barring order heard on a unilateral basis must be the subject of an opportunity to contest the matter in a bilateral hearing within eight days.
A protection order requires that the person concerned shall not use or threaten to use violence against, molest or put in fear the applicant or a dependant. The provision has been held to be constitutional even in the case of an ex parte/unilateral order because the protection order does not affect the property rights of the respondent and is therefore subject to less stringent scrutiny from a Constitutional perspective than a barring order.
Breach of a safety order, barring order, interim order or protection order is an offence. The person concerned, the respondent, is subject on summary conviction to a fine of up to €1,970 or, at the discretion of the court, to imprisonment for a term of up to 12 months or both.
When a barring or interim order is in force, it is also an offence to prevent or refuse the applicant or a dependent person concerned from entering and remaining in the place to which the order relates.
Other Family Orders
The court may, in the course of an application for a barring order, without the necessity for separate proceedings, hear matters in relation to Guardianship of Infant Acts and maintenance orders under the Family Home Protection Act or the Child Care Act.
Child Care Act & HSE
In proceedings under the Act, where it appears to the court that it may be appropriate for a care order or a supervision order to be made under the Child Care Act in respect of the dependent person, the court may, of its own motion or on the application of persons concerned, adjourn proceedings and direct the HSE to undertake an investigation into the circumstances of the dependant. The court may give directions in relation to care and custody in the interim. It may make a supervision order under the Child Care Act while the investigation takes place.
The HSE may take proceedings on behalf of a party entitled to apply for relief. The court has discretion in deciding whether to make an order on foot of an application. The HSE may take proceedings if it:
- is aware, through its officers, of an incident or a series of incidents which causes it to be concerned for the safety or welfare of the person;
- has reasonable grounds to believe that the person has been subject to molestation, violence or threatened violence or has been put in fear for his safety or welfare;
- is of the opinion that there are reasonable grounds for believing that the person would be deterred or prevented, as a consequence of molestation, violence or threatened violence by the respondent or fear of the respondent, in pursuing an application for a safety order or barring order on his own behalf; and
- has ascertained in so far as reasonably practicable the wishes of the person concerned.
Proceedings under the Act, as with other family proceedings, are held otherwise than in public. The legislation provides that officers of the court, parties, legal representatives, witnesses and such other parties as the judge may allow, are permitted to be present in the court.
There is no specific right for others to attend. The courts have, in practice, allowed a so-called McKenzie Friend to assist a party in the course of hearings in proceedings. The McKenzie Friend may be allowed to attend a non-represented litigant in some cases, to assist him, take notes and quietly make suggestions. However, the court must be sensitive to the general statutory provisions which require the in-camera rule to apply in family cases. There must generally be evidence that a fair hearing cannot be otherwise secured, in the sense of the constitutional right to fair procedures.
Following some cases, the Civil Registration Act 2004 provides that nothing contained in legislation is to operate to prohibit a party to proceedings concerned from being accompanied in court by another person, subject to the approval of the court and any such directions as it may give. This may permit the court to allow a party to be accompanied by a friend to provide support and reassurance.