Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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I raise the matter of the need for greater awareness and action to protect victims of violence in the home. I compliment the work of the Minister for Justice and Equality, Deputy Alan Shatter, in dealing with the issue of domestic and sexual violence. His address at the sexual and domestic violence conference earlier this month clearly demonstrated his support for the eradication or, at least, the amelioration of such crimes. I welcome his commitment to introduce reformed domestic violence legislation. I ask him to consider the points I raise in that context.

I am very concerned about the occurrence of violence in the home and the risks posed to the safety of the injured parties, the majority of whom are women, and also children who are affected by domestic violence in many ways. Often, they are the victims of the violent perpetrator. There seems to be a myth that only the mother experiences domestic violence, but international research demonstrates the co-occurrence of child abuse and domestic violence. Domestic violence has an impact on the physical safety and emotional development of the child. The new Article 42A of the Constitution will ensure the voice of the child is heard in court proceedings on issues of access, custody and guardianship. Children living in homes in which they experience domestic violence must have their voice heard in family law proceedings. I ask the Minister to reinstate the makiing of child welfare and safety assessments. It is not right that custody and unsupervised access can be granted to a parent who is a perpetrator of domestic violence. The court must be satisfied that a child will be safe before granting unsupervised access. Therefore, there needs to be a child welfare and safety assessment carried out by a professional probation officer or social worker.

The argument made is that such provisions cost money and a moratorium on the making of public appointments is in place. However, I ask the Minister to look at the system as it stands. A person accused of an indictable crime is means-tested and may be granted immediate free legal aid. This is not the case for victims of domestic violence. Within the constraints of the budget available, I ask that X amount be granted for criminal cases and Y amount be retained for cases of domestic violence. It seems more resources are being offered to criminals if they pass the means test, while women and children suffering from domestic violence cannot avail of services. Children have no voice in the family courts and oftentimes are very distressed when sent back to the violent home. They are emotionally abused when forced to witness the abuse of their mother. Therefore, there needs to be a risk assessment carried out. The commitment to Children First and Article 42A of the Constitution to give a voice to children must be upheld in law and also in its spirit.

In criminal cases a court can be called to arraign criminals, but this is not the case for abused women who may have been battered, beaten and raped. Victims of domestic violence need out-of-hours protection services. If a domestic violence incident occurs on a Friday evening, there is no recourse to the courts until at least the following Monday. While gardaí can arrest in certain cases, station bail is usually granted within a few hours. In other cases, gardaí may be unable to make an arrest owing to a lack of evidence. The perpetrator of violence who is neither arrested nor charged is free to return to the scene of the abuse which, in a case of domestic violence, is the home. In these cases the only option for women and children who have reason to be fearful is to leave. However, family and friends may not be willing to accommodate them, while the women's refuges are often full.

Alan Shatter (Dublin South, Fine Gael)
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I thank the Deputy for raising this issue. She placed particular emphasis on domestic violence against children as opposed to domestic violence against spouses. Violence against children by parents is an aspect of child abuse within the home. A feature of the spectrum of domestic violence is that spouses perpetrate violence against each other. More frequent is violence by the husband against the wife, but there have been instances over the years of wives being violent against husbands. Frequently, children are caught in the middle where there is domestic violence. We should never simplify this area. There are spouses who are violent towards each other but who are never violent towards their children. However, children suffer severe psychological trauma and damage when they witness parents being violent against each other, or one parent perpetrating violence against the other. Equally, there are parents who are physically violent towards their children. This is of particular concern and it arises frequently in the family courts when dealing with proceedings taken by parents who are separating spouses or separated partners. Those proceedings were taken under the Guardianship of Infants Act 1964. Under our statutory provisions, the welfare of the child is the paramount consideration in making decisions about the custody of or access to a child. As the Deputy stated, that protection is now enhanced by the constitutional amendment on children's rights, which seeks to ensure that, in dealing with guardianship, custody and access cases, the best interests of the child constitutionally will be regarded as the paramount consideration.

It was my concern for some time prior to my becoming Minister that the courts did not have the back-up required in undertaking child assessments where allegations are made. My experience as a family lawyer over the years demonstrates that allegations of violence against a child by one parent against the other are not always true. Sometimes they are used as a weapon in a marital battle to try to prevent an appropriate parent from having contact with children.

In July of this year, I announced we would proceed to have a constitutional referendum to facilitate the establishment of new court systems, including family court systems. One reason is that we need to move away from the current court structure. We need a unified and integrated family court structure with judges with expertise in this area and with the appropriate back-up assessment services. The Deputy is correct to say there is a financial cost involved in this. Some 20 years ago, when the probation service was called the probation and welfare service, the welfare side of the service was used in family disputes in the District Court to undertake child assessments to assist the judge in reaching decisions. Some considerable years ago, that role was removed from the probation and welfare service, which is now essentially a probation service. I have no doubt there is a need, in appropriate cases, for such assessments to be carried out. There is a need for the courts to listen to what children have to say. The amendment made to the Constitution on Saturday – the votes were counted on Sunday – gives a voice to the child. It is important that the courts, considering children's age and level of understanding, take cognisance of what they say.

In dealing with allegations of violence, it is terribly important that the courts be informed, not just in child protection cases but also in disputes relating to custody and access. It is also important that false allegations not be used to prevent a child from having a right of contact with parents who can no longer live with each other. I assure the Deputy that these are all issues in which I have had considerable interest for some substantial time. The court system and assessment issues will be part and parcel of the reforms we hope to introduce, on condition that we have a successful referendum on the courts issue.

Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael)
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I welcome the Minister's reform of the court structure, especially the reform of the in camera rule. I have spoken about this in the Chamber previously.

I reiterate the importance of out-of-hours cover. Will the Minister consider what is being done in Austria, Germany, a pilot area in the United Kingdom and New South Wales. Emergency orders are made through a police application to the court or an authorisation officer via telephone, fax or e-mail.

Women experiencing domestic violence are often controlled, followed, harassed and stalked by their abusers during their relationships and after separation. Stalking often escalates after separation as the perpetrator may want to continue to control the victim. We need to introduce a specific offence of stalking into Irish law, as exists in Scotland and Victoria. Stalking should be recognised as grounds for a safety order. When formulating the definition of the offence, we must take into account new technologies, including text messaging, the Internet, social media, blogs, etc. Currently, harassment is dealt with under section 10 of the Non-Fatal Offences Against the Person Act 1997 but it is difficult to prove there has been harassment based on the definition contained in the Act.

Alan Shatter (Dublin South, Fine Gael)
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Part of the reform agenda is to provide updated and consolidated domestic violence legislation. Domestic violence legislation is now contained in more than one main Act. Piecemeal changes have been made to the legislation and it is important that it be consolidated. It is important to introduce additional reforms.

It is, of course, important that victims of domestic violence, whether perpetrated by a spouse or cohabitant or directed towards the child, be aware that there are remedies within our court system to allow one obtain a protection order, safety order or, in appropriate cases, a barring order. Protection orders can be granted on an ex parte basis. I appreciate, however, that the Deputy is raising the issue of obtaining some protection at weekends. The Garda is available to provide protection against domestic violence. The Garda's policy on domestic-violence intervention clearly outlines the procedures to be adopted by all members of the force. In cases of domestic violence, the Garda has a pro-arrest policy to protect spouses or partners and their families. It also gives advice on local support services.

I thank the Deputy for raising this issue. I appreciate that, in a Topical Issue debate, one cannot deal with the matter comprehensibly. However, I am fully aware of the concerns raised by the Deputy and we will do our best to ensure they are properly addressed.