David Stanton (Cork East, Fine Gael) | Oireachtas source

I thank the Senators for their contributions here and for all of the work that they have put into this very important legislation. I also thank the other organisations and interested parties who have been helping and debating with everybody on this.

At the last debate on this Bill, we considered the issue of factors to be taken into account by judges when considering applications for domestic violence orders under the Bill. I outlined at that time that extensive consideration had been given to providing for such a list. On foot of the Senators’ amendments and my commitment to this House, officials worked throughout the summer, in consultation with the Office of the Attorney General, to see if a single list of factors could be developed with each item in the list as legally clear as possible. I appreciate the positive motivation for these amendments. Indeed, this positive motivation and the intended outcome became clearer through the detailed legal consideration over the last number of months.

Notwithstanding this painstaking work, the fundamental point remains the same. No list can be exhaustive. The circumstances of some victims will inevitably be missed, therefore, as illustrated in Senator Norris’s very insightful initial remarks on this topic. If a circumstance is taken on board under an all-embracing final clause rather than because it is set out in the legislation, it may open the door for argument by the respondent that it is not actually domestic violence. Closer scrutiny has also highlighted the very real danger that a permissive list may become a mandatory list, either by law through a finding of a higher court, or in practice through the actions of legal advisers for respondents.

My concern is that even the most clear-cut cases, which are fully worthy of an order being granted, may give rise to long, drawn-out and gruelling sessions for the applicant, where questions are raised on up to 18 different grounds. This would be a disaster for the victim and I know it would be a consequence that is entirely unintended by the proposers of these amendments. It is because of these justified and very real concerns of hugely negative unintended consequences for victims, that I am very slow to agree to these amendments.

In order to place my opposition to and worries about these amendments in context, Senators will have noted that, as Senator Bacik has already stated, following commitments to this House and again after extensive work by the Department and the Attorney General’s office, two Government amendments have been tabled on issues where it had previously been indicated that the Government was not minded to accept amendments. These amendments provide for an offence of coercive control and aggravating factors in sentencing where the offender and victim are, or have been, in an intimate and committed relationship. We will discuss these at a later point.

I have some further notes here so I may have to return to them later. I am minded to listen, though I must point out that amendments Nos. 4, 5 and 6 seek to prescribe in the Bill a list of factors that a judge hearing a domestic violence case must consider in reaching a decision in a domestic violence application. Further, the proposed amendments attempt to define violence and psychological violence. The amendments go on to include additional factors that a court must consider when deciding applications for an emergency barring order or a protection order.

The bulk of domestic violence cases are dealt with under the summary jurisdiction of the District Court. In deciding whether to grant a domestic violence order, the court has a wide discretion. The threshold for the granting of an order is that the court is of the opinion that there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person requires the order. This does not restrict the court in determining what is relevant in deciding a domestic violence application.

There are so many factors that could cause a court to consider that someone is in danger and I do not want to limit the courts' discretion or independence on this. As it stands, an applicant can put forward to the court any factors he or she considers relevant to the application. The judge will consider each case on its merits and make a decision based on all the evidence put forward. The amendments as proposed risk becoming a lawyers’ charter involving arguments on both sides which in itself risks prolonging a case. We return to the difficulty in drawing up an exhaustive list of behaviours that constitute domestic violence. Although I understand the intention behind the proposed amendments, given the complexities and the possible delays that could arise in arriving at a decision and a wish to retain wide discretion for judges hearing these cases, I am again very concerned about accepting these amendments now. I am willing, however, to examine further, as I did earlier, the points made by Senators during the debate. I am also willing to consult again with the Attorney General and with the Parliamentary Counsel on these matters to see what amendments could be proposed for Report Stage. My advice, however, is to be extremely cautious.We do not want to make things worse for victims. We have to be very cautious on this. I am really keen to work with Senators, as we have shown with other amendments that were discussed earlier and will show with amendments that will be discussed later on. However, I urge caution on this for the reasons I have outlined. I am anxious to hear what the Senators have to say on the points I have made and I am very open to argument on this.