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

The purpose of amendments Nos. 9, 12, 14, 17 and 28 is to address concerns about the use of undertakings to determine applications to court for domestic violence orders.

I am aware that SAFE Ireland has suggested that the Bill should make it impossible for an application for an order to be determined by undertakings, which are not orders of the court, in circumstances where the court is satisfied that there is a real risk that domestic violence may occur in the future or where there has not been compliance with previous orders. The concern is that without the protection of a court order, there is no power of arrest, and therefore in practical terms, no real protection for victims of domestic violence. It was suggested that undertakings are often proposed as a means of avoiding legal responsibility.

Having considered the matter in consultation with the Attorney General, I propose to amend each relevant section of the Bill to provide that in all applications for domestic violence orders, where the court is satisfied that the safety or welfare of the applicant or a dependent person so requires, it shall, instead of may, make an order.

The amendments will make it clear that where a court is satisfied that the threshold for making an order has been reached, it must make an order. This would still permit the use of undertakings in appropriate cases where the threshold for an order has not been reached, but the court considers that some form of intervention is necessary. Solemn undertakings can sometimes have a useful role in a case where an order cannot be granted. For those reasons, I do not propose to accept amendment No. 31.

It is important that the right balance be struck in the interest of justice and I believe that my amendment is appropriate and proportionate. In relation to concerns about delaying court proceedings, which are referred to in amendments Nos. 36 and 41, that is not a matter that can be resolved by legislation. It is a matter for the court to manage the cases before it. I believe judges are mindful of the needs of victims and the importance of timely decisions. This is particularly so at District Court level. The court has the power to direct the proceedings before it. I would be wary about limiting judicial discretion and directing judges as to how they run their courts. They are best placed to decide if a respondent is seeking to delay the process and, if so, what action to take.

As regards cross orders, which are referred to in amendment No. 36, I am aware of anecdotal reports of respondents in domestic violence cases filing cross appeals in an effort to confuse the applicant and the court and distract from, and by implication, discredit the application. That is an unpleasant experience for the victim. However, by law, we cannot deny individuals access to the courts. The courts can and do restrict access to repetitious or vexatious litigants and applicants can apply for an Isaac Wunder order if that is the case. It is then a matter for the court to decide the prima facie merits of the case and whether the litigant is to be permitted access to court.Whether a cross order is granted is also a matter for the courts to weigh and then decide. Domestic violence is complex, as I have said before. We must permit in law for access to orders in the small number of cases of mutual violence. In addition, a statutory bar on cross applications could give rise in a minority of cases to an undesirable "rush to court" situation. A perpetrator of domestic violence might lodge an application to court, when he or she becomes aware that the victim is about to seek an order, to potentially bar or obstruct the victim’s access to the courts. For these reasons, I do not propose to accept these amendments.