David Norris (Independent) | Oireachtas source

I move amendment No. 3:

In page 8, between lines 2 and 3, to insert the following:“5. (1) In determining for the purposes of this Act whether or not to grant a relevant order,

the court shall have regard to all of the factors or circumstances that it regards as relevant to the applicant concerned and his or her family.

(2) The factors and circumstances referred to in subsection (1) shall include but is not limited to a list as devised by the Minister.”.

I will speak on amendments Nos. 3 and 4. Amendment No. 3 is a requirement for the other amendment and is presupposed by them. The other amendments, though slightly different, are very much in the same ball court and address very much the same issues. It is an indication of the degree of concern felt by my colleagues that they tabled these amendments with only very slight differences. My amendment is the longest and thus perhaps the most exhaustive. We have addressed the problem the Minister looked at in the previous amendment because this makes it absolutely clear that this is not an exhaustive list. "The factors and circumstances [...] shall include but is not limited to" the list still left at the Minister's discretion.

Amendment No. 3 is necessary for the other amendments because it states "in determining [...] whether or not to grant a relevant order, the court shall have regard to all of the factors". Without this amendment, which is quite a simple one, there would be no relevant context to the factors to be considered. To a certain extent they would be left floating around in mid-air.

I do not wish to test the patience of the House but this is a complex matter and one of considerable import to the operation of the Bill. With the indulgence of the House I would like to quickly go through the factors in amendment No. 4 that might be considered under sections 6 to 10. It proposes a new section 5(1) which provides "On any application for an order under sections 6, 7, 8, 9 or 10, the court shall have regard to the following when deciding whether there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires that such an order be made". Thereafter follows a list, which is itself of interest. First, it includes "any history of violence by the respondent against the applicant". In other words, if there is any background that shows that this has happened in the past and if this is a pattern. If there is a pattern then it is likely to be repeated in the future. Court action is therefore required to prevent that occurring.

The court also will have regard to "(b) whether any violence by the respondent against the applicant or any dependent is repetitive or escalating". This, again, is interesting. It continues the idea of repetition, which is implicit in the first factor, but also contains the idea of escalation. We all know from the history of murder in these islands that very often a situation obtains involving a series of physical attacks that start at the lower end, get increasingly dangerous and end tragically in the murder of the victim. It is absolutely vital that the whole question of repetition and escalation be considered by the court if it is to avert tragedy.

The court also must consider "(c) whether any psychological violence by the respondent of the applicant constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the applicant by the respondent". Acts are not, in other words, seen in isolation. They are not considered on their own but rather as part of a pattern. If that pattern is sinister then the court intervenes.

The court also will have regard to "(d) the current status of the relationship between the applicant and the respondent, including any recent separation or intention to separate". Regardless of Garda or British police statistics, anybody who watches crime drama on television or reads reports in the newspapers will tell you that what very frequently triggers extreme violence, including murder, is a separation. We have recently had several cases in the Irish courts where young women told young men that their relationship was over. Within a matter of days these women was dead. There is a clearly detectable pattern there. The current status of the relationship and whether there is any suggestion of breaking up is important.

The list of factors also include "any circumstance of the respondent that may increase the risk of violence by the respondent against the applicant or any dependent, including substance abuse, threats of suicide, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of serious violence including lethal violence, against the applicant and/or others, including violence against family pets or other domestic animals". Those are circumstances which would lead a court to entertain the gravest concern about the welfare of the applicant.

We then move the focus slightly and take in the applicant herself, or in some limited circumstances, himself. The proposed section 5(1)(f) refers to "the applicant’s perception of risks to his or her own safety and security". This is because the person best able to assess whether they are in danger is the person who is being threatened. In most circumstances nobody else, except perhaps an unfortunate child, has been a witness to this situation. It is very important that the point of view of the applicant be taken into consideration.

The proposed section 5(1)(g) refers to "any circumstance that may increase the applicant’s vulnerability or any dependent’s vulnerability to violence from the respondent, including pregnancy, age, family circumstances, health or economic dependence". These are further characteristics to be considered. The use of violence against a pregnant woman, for example, is much more serious than violence against a healthy woman who is not pregnant. Violence against a pregnant woman could very easily lead to the loss of the child. When it comes to the question of age, we all know that older bones are much more brittle and that elderly people are more susceptible to the breaking of limbs than a person in the full flush of youth.

The list also includes "(h) the accommodation needs of the applicant and any dependent(s)" and "(i) any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or any dependent which in the opinion of the court, was caused directly by the behaviour of the respondent". This creates an opening for the direct observation of the judge. The judge can look at the applicant and it may perhaps be the case that the applicant has been in court on a previous occasion. The judge will thus be in a position to say if there was a significant decline between occasion A and occasion B. It may also be the case that the applicant enters court displaying bruises or contusions or is wearing a sling, a bandage or a plaster. This, again, is calling in another element, namely the observation of the judge.

Finally, the list includes "(j) whether it is appropriate in the circumstances to make any order under section 14"and "(k) any other matter which appears to the court to be relevant to the safety and welfare of the applicant and any dependents". This is a catch-all phrase.

With regard to the violence referred to in the proposed section 5(1), the proposed section 5(2)(a) states "a single act by the respondent against the applicant or any dependent, may amount to violence". It may have just been one act, it does not have to be a pattern. A number of acts constituting a pattern, however, is more significant. Under the proposed section 5(2)(b), "a number of acts by the respondent against the applicant or any dependent, that form part of a pattern of behaviour may amount to psychological violence for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial."In other words, a slight physical altercation might not be considered a serious offence, but if repeated consistently it becomes not just an act of physical terror, but also an act of psychological terror, and the witnessing of this by children is always terrifying to the child.

The proposed section 5(3)(b) states "'psychological violence' includes" - and we give a list there. I will not go into it. The proposed section 5(3)(c) then provides "whatever order is made or not made on the application for an order ... the reasons for making it or not making it and for making it subject to conditions, if any, should all be recorded by the court and a copy of these reasons should be made available to each party". That is fair. If a court is going to make a decision, it needs to record it and transmit those reasons to the interested parties. The proposed section 5(4) goes on to provide:

The court shall also have regard to the following factors when deciding whether there are reasonable grounds for believing that the safety or welfare of the applicant or dependent person requires that such an order be made:(a) any immediate risk of significant harm being caused directly or indirectly by any kind of violence by the respondent against the applicant or any dependent if the order is not made immediately.

In other words, immediate intervention may in many circumstances - not just in some - be essential to the welfare of the applicant. The provision continues by specifying the court shall have regard to "whether any previous orders under the Domestic Violence Acts have been made against the respondent". Again, we are looking here at the court establishing whether there is a pattern. If there has been a pattern in the past, one can with reasonable justification predict that matters will escalate and it is the interest of the court to ensure that this escalation does not take place. The court also will have regard to "(c) any criminal proceedings for violence against the respondent, in respect of the applicant and/or others, pending or concluded, as far as known". Again, if there is a list of pending prosecutions, or even one example of a pending prosecution, for violence by the defendant against the applicant, that surely must be taken into account by the court. Finally, the court will have regard to "(d) any violence by the respondent against the applicant and/or any dependent children, which is recent, repeated, and/or severe, including attempts at lethal violence against either the applicant or any dependent". This is self-evident. If there has been an attempt at lethal violence - if the defendant has attempted to kill the plaintiff - surely to God, that is a very good reason for the granting of such an order.

I am sorry to have taken so much time but it has been worthwhile to explain in some detail the reasoning behind these amendments.