Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time." The Domestic Violence Bill 2017 is most important legislation and I am pleased to be introducing it to the House. The Bill was initiated in the Seanad and completed its passage through that House on 30 November. I am pleased to say that it received general support among Senators and was the subject of lively debate and very positive contributions. I look forward to a similar debate in this House. I acknowledge the work of the Minister of State at the Department of Justice and Equality, Deputy Stanton, in the Upper House.

The purpose of this Bill is to consolidate and reform the law on domestic violence to provide better protection for victims. The Bill also includes provisions to enable Ireland to ratify the Council of Europe Convention on preventing and combatting violence against women and domestic violence, more commonly known as the Istanbul Convention. The Bill is part of a larger package of measures aimed at dealing with the scourge of domestic violence in our community.

The enactment of the Domestic Violence Bill is a key part of the second national strategy on domestic, sexual and gender-based violence 2016-21. As part of this strategy, the Government is running a six-year national awareness campaign called "What would you do?" which aims to bring about a change in long-established societal behaviours and attitudes to domestic and sexual violence. In developing the Domestic Violence Bill, my Department has engaged closely with groups which support victims of domestic violence. I acknowledge the work being done by these organisations. The support and assistance they offer to victims is hugely valuable to people who find themselves in extremely vulnerable situations.

I will outline the main provisions of the Bill. Part 1 contains standard provisions regarding commencement, definitions, repeals and expenses. Section 5 is a new provision that sets out an extensive list of factors that a court must consider when dealing with an application for a domestic violence order. The list is not exhaustive and will not limit a court's discretion to make an order. An applicant can put forward to the court any factors they consider relevant to the application. The list of factors does not preclude the court from examining any matter that is relevant to a particular application.

Part 2 of the Bill provides for the different orders that can be applied for under the Bill. It also deals with procedural matters for court proceedings under the Bill. Section 6 provides for the making of safety orders to prohibit violent and threatening behaviour. Safety orders were first introduced in the Domestic Violence Act 1996 and section 6 largely re-enacts those provisions. The most important change is that persons in intimate and committed relationships, but who are not cohabiting, will be able to apply for safety orders under this Bill. Section 7 provides for the making of barring orders to direct a person to leave a place where the victim resides, or not to enter that place. Statutory barring orders were first introduced in Ireland by the Family Law (Maintenance of Spouses and Children) Act 1976. Those provisions were replaced by the Family Law (Protection of Spouses and Children) Act 1981. The Domestic Violence Act 1996 further strengthened the law in this area. The main change being made by this Bill is the removal of the six-month minimum cohabitation requirement in cases involving persons in cohabiting relationships. Section 8 provides for the making of interim barring orders in cases where there are reasonable grounds to believe that a person is at immediate risk of significant harm. Interim barring orders were first introduced in the Domestic Violence Act 1996 and this section largely re-enacts those provisions, as amended by the Domestic Violence (Amendment) Act 2002. If an interim barring order is granted ex parte, without notice to the person against whom it was sought, it will have effect for up to eight working days. In all other cases, an interim barring order will have effect until the application for a barring order has been determined by the courts.

Section 9 provides for a new emergency barring order that will put life and limb ahead of property and allow a person in a dangerous situation to get a temporary barring order even if he or she has no rights to the property. This is an important new provision that must be enacted to enable Ireland to ratify the Istanbul convention. A person can apply for an emergency barring order where he or she has lived in an intimate and committed relationship with the perpetrator without being that person's spouse or civil partner or where he or she is the parent of an adult perpetrator. The most significant element of this new provision is that a person can apply for an emergency barring order even if he or she has no legal or beneficial interest in the place concerned or has an interest that is less than that of the person against whom the order is sought. Emergency barring orders will only be granted where there are reasonable grounds to believe that a person is at immediate risk of harm. An emergency barring order may be granted without notice having been given to the person against whom it is sought and will have effect for up to eight working days. Once the emergency barring order has expired, another emergency barring order may not be made until one month after the expiry of the previous order unless the court is satisfied that there are exceptional circumstances. This is to ensure that the order will operate as an emergency, temporary measure only.

Section 10 is a new provision which was inserted on Committee Stage in the Seanad. It provides that gardaí may communicate with an on-call judge to apply for an out of hours barring order. My Department is examining the text of this section in consultation with the Office of the Parliamentary Counsel. I intend to bring forward any necessary amendments on Committee Stage in the Dáil to ensure that the section will be clear, workable and consistent with the other provisions of the Bill. Section 11 provides for the making of protection orders pending the determination of an application for a safety order or barring order. A protection order can be made where there are reasonable grounds to believe that the safety or welfare of the person who applied for the order or of a dependent person are at risk.

Sections 12 and 13 contain provisions relating to the making of applications by the Child and Family Agency for safety orders, barring orders and emergency barring orders. These sections re-enact sections 6 and 7 of the Domestic Violence Act 1996. Sections 14 and 15 provide protection to spouses and civil partners against disposal of household effects in the period between the making of an application for a safety order or barring order and the determination of that application.

Section 16 provides that a court that is dealing with domestic violence proceedings may also make orders under family law legislation without the need for separate proceedings to have been issued. These include orders relating to the right of access to a child under section 11 of the Guardianship of infants Act 1964. This enables issues relating to the needs of children to be addressed. The courts already have this power under section 9 of the Domestic Violence Act 1996, which is restated and updated in section 16.

Section 17 is a new provision that aims to prevent oppressive cross-examination conducted personally by the applicant or respondent. It provides that persons who are giving evidence may not be personally cross-examined by either the applicant or respondent unless the court is of the opinion that the interests of justice so require. Section 18 will require the courts to give reasons for decisions relating to applications for orders under the Bill.

Sections 19 to 24 contain provisions relating to the taking effect of orders, the delivery of copies of orders to certain persons, appeals from orders, discharge of orders, jurisdiction of the courts and the hearing of proceedings in private. My officials will examine further the text of section 19(3), which was inserted on Committee Stage in the Seanad and which provides for the service of orders by the Garda Síochána. If it is necessary to ensure that the provision is clear and workable, I will propose amendments on Committee Stage here. In the meantime, I am happy to take on board the views of Deputies to ensure we reach the best possible outcome.

The Bill includes new provisions aimed at making the courts process less difficult for victims of domestic violence when they are applying for civil orders under the Bill and in cases where an order is breached and a criminal prosecution follows. These provisions complement the protections the Criminal Justice (Victims of Crime) Act 2017 provides for victims giving evidence in criminal proceedings. Section 25 provides for the giving of evidence through live television link where an application is being made to court for an order under the Bill while section 26 will allow a person who applies for an order under this Bill to be accompanied in court by a person of his or her choice, in addition to any legal representative.

Section 27 will enable the court to seek the views of the child where an order is being sought on the child's behalf. This will help to make the court process more child friendly. The court will have the option of appointing an expert to ascertain and convey the child's views to the court.

Section 28 will require the Courts Service to provide information to victims of domestic violence about support services that may be available.

Section 29 will give the courts the possibility of recommending that a person engage with a programme or service to address issues relating to their behaviour that led to the application for an order. This could be a programme for perpetrators of domestic violence, an addiction service, a counselling service or a financial planning service.

Sections 30 to 32 provide for costs of proceedings, rules of court and the service of documents and the effect of orders on rights under certain enactments or estates or interests. These provisions restate existing provisions in the 1996 Act.

Part 3 of the Bill provides for offences under the Bill. Section 33 provides that it is an offence to breach a safety order, barring order, interim barring order, emergency barring order or protection order. It is also an offence to refuse to permit a person who applied for a barring order to enter in and remain in the place where the barring order is in force.

Section 34 provides for the giving of evidence through television link in proceedings for an offence under section 33. My Department is examining this section in light of the amendments to the Criminal Evidence Act 1992 made by the Criminal Justice (Victims of Crime) Act 2017. The intention is to bring forward appropriate amendments on Committee Stage.

Section 35 will provide privacy for victims in cases where there is a criminal prosecution for breach of an order. The judge will be required to exclude all persons from the courtroom except for persons directly involved in the case, court officials, members of the press and others specified by the judge.

Section 36 provides for arrest without warrant where a garda has reason to believe that a breach of a domestic violence order is being or has been committed, following a complaint from, or on behalf of, the person who applied for the order.

Section 37 provides that where proceedings are brought for an offence under section 33, it will be an offence to publish or broadcast any information or photographs which could lead to identification of the victim or the person charged or a dependant of either of them.

Section 38 provides strong penalties for this offence.

Section 39 is an important provision that creates a new offence of forced marriage. While the inclusion of this provision is necessary to enable Ireland to ratify the Istanbul Convention, I believe it is also important to send out a message that such behaviour is not acceptable in 21st century Ireland. It will be an offence to use violence, threats, undue influence, duress or coercion to cause another person to marry. It will be also an offence to remove someone from the State with the intention that they will be forced into a marriage outside of the jurisdiction.

Section 40, which provides for a new offence of coercive control, was introduced by a Government amendment in the Seanad. It takes account of the reality that behaviours in a domestic setting that involve emotional abuse, humiliation and fear can be as harmful to victims as physical abuse, as they are an abuse of the unique trust associated with an intimate relationship. This section seeks to define the offence of coercive control as clearly as possible. The offence will be committed where a person knowingly and persistently engages in behaviour that is controlling or coercive, that has a serious effect on a relevant person and that a reasonable person would consider likely to have a serious effect on a relevant person. A person is a "relevant person" in respect of another person if he or she is the spouse or civil partner of that other person or is or was in an intimate and committed relationship with that other person. The section goes on to define what is meant by "serious effect". A person's behaviour has a serious effect on a person if the behaviour causes the person to fear that violence will be used against him or her, or if the behaviour causes serious alarm or distress that has a substantial adverse impact on the person's usual day-to-day activities.

Section 41 was also introduced on Committee Stage in the Seanad. This new section will ensure that where offences involving physical or sexual violence are committed in the context of a marriage, civil partnership or an intimate and committed relationship, that fact will be an aggravating factor at sentencing. The new sentencing provision will apply to any offence that involves violence or the threat of violence to a person.

It will ensure that aggravated sentencing will apply where a person is convicted of the manslaughter of his or her current or former partner or spouse. Non-fatal physical violence is captured by offences under the Non-Fatal Offences Against the Person Act 1997, including assault, assault causing harm, causing serious harm, threats to kill, coercion, harassment, endangerment and false imprisonment. Sexual offences, including sexual assault and rape, are also relevant in domestic violence situations.

Sections 42 and 43 are transitional provisions that allow orders or applications made under the Domestic Violence Act 1996 to continue as if they were made under this Bill. Section 45 amends the Family Law Act 1995 to remove the exemption for underage marriage. Currently, section 33 of the Family Law Act 1995 allows an application to court for an exemption to the requirement that a person must be over 18 to marry. Removing the underage marriage exemption should help to protect minors against forced marriage as requiring both intended spouses to be at least 18 should assist in ensuring that they have the maturity to withstand parental or other pressure to marry a particular person. It will also be necessary to amend the Civil Registration Act 2004 and section 49 provides for this. The validity of marriages that have already taken place under the exemption will not be affected. The remaining sections in Part 4 amend other legislation to take account of this Bill.

In conclusion, I believe that this legislation will help to improve the protection of the law for victims of domestic violence as it puts the needs of victims first and foremost, and I hope the Bill will be enacted as early as possible. I look forward to listening to the contribution of all Members of the House on Second Stage and I hope we can proceed to Committee Stage with the objective of ensuring we can have the best possible legislation in order to ensure maximum protection for people who find themselves in these most difficult and unacceptable circumstances.

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