Ivana Bacik (Independent) | Oireachtas source

As Senators Norris and Kelleher have already indicated, amendments Nos. 3 to 6, inclusive, are very important, practical amendments which seek to insert into this welcome legislation provisions for statutory guidance for judges in the making of orders under the relevant sections. There has been serious concern about inconsistency among different judges, particularly in the District Court, in how they exercise discretion and the lack of availability of statutory guidance. I note the Law Society's own recommendation as long ago as 1999 advocating that the provision of detailed statutory criteria to guide judicial discretion should be adopted and that it is already an approach adopted elsewhere in family law through the Judicial Separation and Family Law Reform Act, the Family Law (Divorce) Act and so on. We might now add the Children and Family Relationships Act to that list. We should now have good practice in setting out structured guidelines for district judges in exercising criteria. This is particularly important when we are talking about orders such as safety orders, protection orders and barring orders because we know there is a divergence in practice in this regard and that district judges and practitioners refer colloquially to applicants having to reach a bar or threshold before they will satisfy the judge that an order may be made. There is no such bar or threshold. I remember people talking about this when I was in practice. I understand this misleading expression is still being used now; yet judges do not have available to them any statutory criteria to guide them.

Amendments Nos. 3 to 6, inclusive, all seek to do the same thing, that is, to provide some structuring to judicial discretion. It is a hugely important principle. I ask the Minister of State again to express an indication as to whether he is willing in principle to accept the need for such a provision and then to come back to us on Report Stage, having considered the wording of all these amendments, which are all very similar, and to tell us whether he is willing, as I said, to enact one of them in principle or even an amalgam of them. I am grateful to SAFE Ireland, which has indicated its support for our own version, namely, amendment No. 6. SAFE Ireland says it is its preferred framing of the statutory guidance because the order in which it is laid out is clear. In amendment No. 6 we seek to provide the definition of "domestic violence", essentially, which we have already debated, and the inclusion of which was also sought in amendment No. 1.We have tried to do this within one section because it is a sensible approach.

Amendment No. 6 seeks to insert a new section 5 at the start of Part 2, which deals with court proceedings. It provides for the making of a safety order, barring order, interim barring order, emergency barring order and protection order. We seek to re-enact the orders that exist under the 1996 legislation. The new section 5(1) to be inserted by the amendment reads:

Where a court is deciding, on an application for an order under sections 6 to 10, whether there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires that an order be made, the court shall have regard to the following considerations ...

All of that is prescriptive. The amendment outlines a list of considerations that the Law Society and SAFE Ireland have outlined in similar terms. Senator Norris has gone through them already. Essentially, they are the same.

We are all aware of the evidence and the literature that shows there are circumstances that may increase an applicant's vulnerability such as pregnancy and health or economic dependence. There are issues that may lead to the deterioration of the welfare of the applicant or dependent person. There are accommodation needs that should also be considered. We have compiled a sensible list. We have also provided that where the court is considering an emergency barring order or protection order, that is in order under section 8 or 9, that the court shall also have regard to four further considerations, including the immediate risk of significant harm. Again, these are sensible measures.

The new section 5(3) contains a list of defined provisions beginning with the following, "(a) "violence" includes physical, sexual or psychological violence." We inserted the definition because we are aware, anecdotally, of court proceedings where judges appear to suggest that only evidence of physical violence is what is required in order for an applicant to satisfy the court that a particular type of order should be made. Clearly, that is wrong. At present, there is no statutory provision that clearly sets out for judges that violence must include physical, sexual or psychological violence.

The amendment continues with a definition of psychological violence. We made further points about issues that are contentious in court practice about whether a single act is sufficient or whether there needs to be a number of acts. We have outlined different provisions which are sensible and which provide important structured guidance for judges.

Finally, the new section 5(4) states, "the reasons for the decision of the court shall be recorded by it in writing. This would be a much better practice. We recognise that in all of these important decisions.