Brian Lenihan Jnr (Dublin West, Fianna Fail)

This is very important because the power to grant an interim barring order ex parte is essential in certain cases to protect innocent persons in their home. That is an important jurisdiction and, since the Supreme Court decision, the courts have not been in a position to exercise that jurisdiction because that power has not been available to them. In such circumstances, it will be important that the offending party will be ordered to leave the home and it is not practicable, in the circumstances of the case, to require that notice be given to him or her prior to the making of the order. However, as is indicated by the Supreme Court decision, when such an order is made there must be an early return date on which the applicant must show in proceedings, of which the respondent has notice, that the continuation of the interim order is justified in accordance with the statutory criteria. The period upon which we have fixed in the legislation is eight working days.

I now turn to the provisions of the Bill. Section 1 is the substantive provision which substitutes a new subsection (3) for the existing section 4(3). Paragraph (a) of the proposed subsection has three features worthy of comment. These are: first, the provision that an interim order may be made ex parte and the jurisdiction is confirmed; second, the replacement of the phrase "in exceptional cases" in section 4(3) with a reference to "the circumstances of the particular case"; and, third, the stipulation that an interim order may be made ex parte"where the court considers this necessary or expedient in the interests of justice".

Section 4(3), in its present form and prior to the Supreme Court decision, permitted the making of an interim barring order ex parte or notwithstanding the fact that the originating document or other notice of the application required to be served on the respondent to the barring order application had not been so served. This was a reference not to notice of the application for the interim order but to notice of the application for the full barring order. I have been informed that, in the vast majority of cases, interim barring orders were issued where the notice of the barring order application had yet to be served on the respondent. Even where this notice had been served, it would be rare for the respondent to be aware that, in addition to a full barring order, an interim barring order was also being sought against him or her.