The marginalisation of victims of domestic abuse under the Irish Domestic Violence Act 2018

ABSTRACT

This article critiques the civil law intervention set out in the Irish Domestic Violence Act 2018 as it applies to victims of domestic violence. It evaluates the five civil orders: safety order, protection order, barring order, interim barring order and the new emergency barring order. The analysis reveals striking inequality in the legislature’s approach to providing protection to victims of domestic violence. While some victims have only access to minimal protection, others still are left with no recourse under the Domestic Violence Act 2018. This article highlights these substantive gaps in protection and reveals inconsistencies and contradictions in how these victims are marginalised and excluded.

KEYWORDS:

• Domestic Abuse
• Civil orders
• Domestic violence act 2018
• Ireland

Introduction

The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) requires signatory states to provide protection for all victims of domestic violence. Yet the Irish Domestic Violence Act 2018 which purports to implement this Convention into Irish law maintains a hierarchy of domestic violence victims. This is manifest in the narrow scope of the new offence of coercive control under section 39 which applies to those in intimate or formerly intimate relationships only. But this narrow scope is also acutely evident in the civil orders, the mainstay protection available for domestic violence sufferers. Many domestic abuse victims are restricted to the dubious protection of behavioural orders which allow a perpetrator to remain in shared accommodation, while others still are not provided with any civil recourse at all. Therefore children have no direct access to protection and adults in non-intimate relationships who do not share accommodation are completely omitted from the Act. This article evaluates the domestic violence orders and considers the unsustainable distinction being made between ‘deserving’ victims and non-deserving victims of domestic violence in Irish law (Crowley 2019, p. 146). The first part will consider the socio-legal background of domestic violence law in Ireland. The second part will examine the relevant civil orders under the Domestic Violence Act 2018 and the third part will identify and evaluate the failures of the act to safeguard all victims of domestic abuse.

The socio-legal context of Irish domestic violence law

Legislative attempts to intervene to protect victims of domestic violence emerged at the same time in Ireland as in England and Wales with the introduction of the Irish Family Law (Maintenance of Spouses and Children) Act 1976 and the English and Welsh Domestic Violence and Matrimonial Proceedings Act 1976 respectively (DVMPA). But while the Irish response initially focussed on the protection of heterosexual spouses and their children, the DVMPA included unmarried intimate cohabitants within its scope (section 1(2)). In Ireland, the introduction of the Family Home (Protection of Spouses and Children) Act 1981 continued to centre protection on married couples and their children only. Ireland at this time was still a deeply conservative jurisdiction; the eighth amendment to the Irish Constitution protecting the life of the unborn and preventing access to terminations only became law following a referendum in October 1983 (eventually removed following another referendum in 2018).

A retrenchment of traditional family mores had occurred in the creation of the new Irish State as a response to the upheaval experienced during the war of independence (1919–1921) and the civil war (1922–1923) (Earner-Byrne 2017, p. 142). The civil war in particular had led to the disruption of family and relationship ties and a culture of silence surrounding this period lingered into the twenty-first century. The role of women in the revolution was conveniently forgotten while the new Constitution of the Republic (1937) recognised that ‘by her life within the home, woman gives to the State a support without which the common good cannot be achieved’ (Article 41.2.1°), further stating that ‘mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’ (Article 41.2.2°). Despite talks of removal for several decades these provisions remain in Article 41 of the Irish Constitution which provides special protection to the married Irish family as the ‘natural primary and fundamental unit group of Society’ (Article 41.1.1°).

Alternative relationships have long been side lined in Irish society. Although like the Family Law Act 1996 (applicable in the main to England and Wales only, s67(4)) the Irish Domestic Violence Act 1996 broadened the scope of applicants who could apply for civil protection, it was still cautious in how this should apply to cohabiting heterosexual intimate relationships. Therefore, protection for such cohabitees was initially predicated on a required period of living together of at least six months in total out of the previous nine months for barring and interim barring orders (s 3(1)(b)) and out of the previous twelve months for safety and protection orders (s 2(1)(a)(ii))). The latter period was removed as a requirement under the Civil Law (Miscellaneous Provisions) Act 2011 but the period for barring and interim barring orders remained until the act was repealed in 2019.

Homosexual relationships in Irish society were marginalised further still as manifest in the deeply prejudiced judgment of O’ Higgins CJ in Norris v. the Attorney General [1983] IESC 3. The introduction of same sex marriage in 2015 (subsequent to the brief availability of civil partnership 2011–2015) signified a sea change politically and socially with the pages of questionable discussion on the impact of same sex marriage upon children in Zappone & Gilligan v. Revenue Commissioners & Ors [2006] IEHC 404 swiftly forgotten. But by encompassing same sex marriage within the domain of marriage protection under the Irish Constitution, the State reaffirmed the traditional married family for a new age ‘as the ideal model of relationship, to the exclusion of alternative family types’ (Ryan 2019, p. 101). In this regard, those in other forms of intimate relationships, such as cohabitees, or those who are not in intimate relationships at all continue to exist outside the superior protection afforded to the Irish married family. This in turn continues to affect the level of protection available to them under domestic violence legislation.

The protection afforded to marriage under the Irish Constitution has also adversely affected the position of children of married families whereby the desires of the married parents were, until recently, favoured over the best interests of the child. Therefore, in the 2006 Supreme Court decision of N. & Anor. v Health Service Executive & ors. [2006] IESC 60 the superior protection of the married family meant that a child was removed from its adoptive family and returned to its married biological parents despite the weight of psychological evidence indicating that this was contrary to the best interests of the child. There is also a long history of abuses against children and unmarried women outside and within the family as evidenced in the operation of Mother and Baby Homes and Magdalene Laundries into the 1990s (Gallen 2019, pp. 264–266) and a culture where child abuse was often hidden and unpunished (Earner-Byrne 2017). The recent addition of Article 42A to the Irish Constitution in 2015 recognises children’s rights as deserving of distinct protection and aims to strengthen the position of children, yet until 2019 it was possible to obtain special permission from a court for a child under the age of 18 to marry (section 33 Family Law Act 1995). Although this exemption was removed by the Domestic Violence Act 2018 (section 45(e)), elsewhere the Act continues to exclude child victims of domestic violence from direct protection despite the apparent strengthening of children’s rights under Article 42A.

The domestic violence act 2018

The Domestic Violence Act 2018 came into effect on the 1^st January 2019 and retains the core existing orders (with some alteration) under the Domestic Violence Act 1996: safety order, barring order, protection order and interim barring order. However, it also introduces a new emergency barring order. This emergency barring order provides additional, short term protection to some parties traditionally omitted from the scope of full and temporary barring orders. Unlike the position in England and Wales, there is no equivalent police instigated domestic violence protection notice or order (Crime and Security Act 2010). Section 33(1) of the Irish Domestic Violence Act 2018 provides that if any of the orders are breached a criminal offence will have been committed with a maximum penalty of 12 months imprisonment and a fine.

There is no definition of what is meant by domestic violence in the Act but section 5 provides a new list of eighteen factors which the court must take into account in making a decision to grant any of the civil orders. This list includes such things as the history of violence of the respondent, the effect of the respondent’s behaviour on the applicant and/or any dependent person, animal cruelty, substance abuse, economic dependence of the applicant on the respondent and also includes scope for the court to take into account any non-specified issues it considers relevant. The five orders available under the Act may broadly be distinguished between those that aim to intervene by solely modifying the behaviour of the abuser (behavioural orders: safety and protection orders) and those that provide the power to exclude the abuser from accommodation (exclusionary orders: barring, interim barring and emergency barring orders).

Behavioural orders: safety & protection orders

Safety and protection orders come within the scope of behavioural orders and are similar in nature to English and Welsh non-molestation orders in aiming to modulate an abuser’s behaviour and in offering protection to a relatively broad category of victims. Safety orders were first introduced under the Domestic Violence Act 1996 to provide protection for those in domestic situations who did not fall within the ambit of exclusionary orders and to offer alternative protection to those who did qualify for an exclusionary order, but did not wish to bar the abuser from shared accommodation (Debates 1995d). Protection orders on the other hand were introduced at a much earlier stage. They originated in the Family Home (Protection of Spouses and Children) Act 1981 as the first form of interim protection made available to those awaiting the outcome of a barring order application (Debates 1981).

Section 6 sets out the law relating to the safety order. It is a potentially long term order and if granted by the District or Circuit Court may initially be granted for any period of time up to five years (section 6(4)). But it is also possible to renew orders under sections 6(5) and 6(6). However there is no time limit specified if the order is granted by a higher court. The order once granted can be varied (section 6(9)) or discharged (section 21) upon application to the court.

Section 10 deals with the protection order which is a temporary order made to provide protection whilst awaiting a decision on a safety order or full barring order. Therefore it will last until a decision is made about the relevant application for a long-term order unless the order is varied (section 10(5)) or discharged (section 21) in the meantime. As a temporary order, the protection order also has the potential to be granted ex parte if ‘the court considers it necessary or expedient to do so in the interests of justice’ (section 10(7)). If this is the case then specific formalities must be complied with in that the applicant’s evidence must be given by affidavit or otherwise sworn (section 10(8)) and a special note of evidence made (section 10(9)). All this information, in conjunction with a copy of the order must then ‘be served on the respondent as soon as practicable’ (section 10(9)(b)).

The constitutionality of allowing protection orders to last indefinitely until a decision on a full order is made was verified in the High Court decision of MJL v. Ireland and the Attorney General [2008] IEHC 241, in which protection orders were viewed as merely a warning to the abuser (para. [12]). This aligns with the general view of the similar English and Welsh non-molestation order as constituting ‘a minimal incursion into a respondent’s life’ (Herring 2020, p. 154). Therefore, safety and protection orders are primarily concerned with stopping abusive behaviour through the making of a court order directing how the respondent is not to act. In granting a safety or protection order, the court has a choice of three potential directions that may make up the mandate of the safety order under section 6(2) or protection order under section 10(1). Additionally, the court has discretion to include ‘such exceptions and conditions’ as it may stipulate (ss 6(3) and 10(2) respectively).

Firstly, the court may order the respondent not to molest an applicant and/or dependent person, nor to put them in fear or to use, or threaten to use, violence against them (section 6(2)(a); section 10(1)(a)). Secondly, the court may order the respondent not to ‘watch or beset’ the residence of the applicant and/or a dependent person but only if the respondent is living elsewhere (section 6(2)(b); section 10(1)(b)). Thirdly, the respondent may be ordered to not engage in what might ordinarily constitute stalking behaviour by the imposition of a directive not to communicate with or to follow the applicant and/or the dependent person. This includes any attempt to carry out such behaviour electronically (section 6(2)(c); section 10(1)(c)).

There are six potential categories of applicants for a safety order. By virtue of the fact that a protection order can be granted upon application for a barring order or a safety order, the main category of applicants are the same for the protection order as the safety order (as those who can apply for a full barring order can also apply for a full safety order). Section 6(1) in conjunction with section 2 sets out these six potential categories of applicants. They include: (i) spouse/former spouse; (ii) civil partner/former civil partner; (iii) a person who ‘was in an intimate relationship with the respondent prior to the application’; (iv) a parent of a non-dependent child; (v) a person who lives with the respondent in a primarily non-contractual relationship; and (vi) a person who shares a child with the respondent.

There is some similarity between the parties who may apply for a safety/protection order and those who may apply for a non-molestation order in England and Wales. Therefore, the non-molestation order under the Family Law Act 1996 provides protection to present and past civil partners (section 62(3)(aa)) and spouses (section 62(3)(a)) within its categorisation of ‘associated persons’. There is also protection for past or present cohabitees (section 62(3)(b)), those who are or were engaged to be married (section 62(3)(e)) or those who are or were in an intimate relationship albeit with the requirement that it is or was of ‘significant duration’. This is slightly more limited than the protection provided for parties in intimate relationships in section 6(1)(iii) of the Irish Domestic Violence Act 2018 whereby there is no longer any specific reference to duration. There is, however, no precise protection set out for those who share a child in the Family Law Act 1996, although it should in many cases fall within a situation where an informal or formal intimate relationship was once present. Like the Irish Act, the Family Law Act 1996 also provides protection for those living in shared accommodation, but this is broader than the Irish position in including those who ‘have lived in the same household’ (section 62(3)(c)). The protection afforded to parents of non-dependent children in Ireland would fall within the protection afforded to ‘relatives’ generally under the Family Law Act 1996 (section 62(3)(d)) which is broadly defined in section 63(1).

Each possible applicant under the Irish Act may apply in respect of behaviour that is being conducted towards them and/or a dependent person. There is also potential under section 11 for the Child and Family Agency (CFA)¹ to make an application on behalf on any applicant for an order if the person is too frightened to make the application themselves. This does not however extend to the CFA making an application directly on behalf of a dependent person and as such there is no direct protection available for a dependent person under the Act. The possibility of intervention for behaviour towards a dependent person is therefore predicated on a person who wishes to make such an application qualifying themselves as an applicant for that order. In contrast, in respect of non-molestation orders (and occupation orders) in England and Wales a child may be an associated person in their own right (section 62(3)(f) with leave of court if under the age of sixteen (section 43) under the Family Law Act 1996. Further, a court has discretion to grant a non-molestation order in family proceedings for associated persons and relevant children even where no one has specifically applied for such an order (section 41(2) Family Law Act 1996).

Section 6(1)(b) of the Irish Domestic Violence Act 2018 sets out what will be taken into account in considering if parties are living together in a primarily non-contractual relationship for the purposes of qualifying to make an application under section 6(1)(v). The court will consider: (i) the duration that the parties have lived with each other; (ii) ‘the nature of any duties performed by either person for the other person or any kindred person of that other person’; (iii) ‘the absence of any profit or of any significant profit made by either person from any monetary or other consideration given by the other person in respect of residing at the place concerned’; and (iv) any other relevant matters. ‘Kindred’ is further defined by the section as meaning ‘in relation to two or more persons, … the relationship of each of those persons to the other person or to the rest of those persons by blood, adoption, marriage or civil partnership’.

The exact scope of the category relating to parties living together in a primarily non-contractual arrangement is unclear and therefore risks leaving potential applicants in doubt. In research carried out by Conneely et al. in respect of the equivalent provision under the previous Irish Domestic Violence Act 1996, only three applications were observed which would seem to come under this potentially broad category. These concerned two applications from sisters against a brother and one from a daughter against a mother (Conneely et al. 2019, p. 80). All of these applications were granted and therefore indicate that these kind of familial relationships in shared accommodation fall within the classification. It would, however, be expected that it would also extend to other non-related parties sharing accommodation for reasons of economy or convenience, once it was not a predominantly contractual arrangement. Presumably, this would exclude such situations described in English and Welsh law as concerning employees, tenants, boarders or lodgers (section 62(3)(c) Family Law Act 1996).

The grounds for granting a safety order are that the court ‘is of the opinion that the safety or welfare of an applicant or a dependent person so requires’ (section 6(2)). This is similarly required for the granting of a protection order, albeit there is the additional requirement that an application for a full safety or barring order must also have been made (section 10(1)). The grounds for granting a non-molestation order in England and Wales under section 41(5) of the Family Law Act 1996 demonstrate a similar focus on safety and welfare in requiring a court to consider all circumstances ‘including the need to secure the health, safety and well-being’ of the applicant or relevant child. Notably, in Ireland ‘safety or welfare’ is also the determining factor in granting a barring order which unlike the safety and protection orders, has the power to exclude the respondent from the residence of the applicant and/or dependent person. Safety is not defined in the Irish Act but welfare is minimally extrapolated under section 2 as including ‘physical and psychological welfare’. This would seem to be derived from the definition of welfare propounded by the dissenting Griffin J. in the old Supreme Court decision of OB v. OB [1984] IR 182.

The main power behind the behavioural orders is the threat of criminal action if the order is breached. If the respondent breaches the order then an offence will have been committed under section 33. However, in most instances the Gardaí² are unlikely to be aware that such an order has been breached unless they are contacted by the victim. It is therefore questionable whether all instances of a breach are likely to come to the attention of the Gardaí, especially where the respondent is living with the applicant and/or dependent person and continuing to exert control over their lives. Further, the grant of such an order, again particularly where shared living continues, may aggravate the respondent and lead to an escalation of the behaviour that originally led to the grant of the order.

A. Exclusionary orders: barring, interim barring and emergency barring orders

The second category of orders, the exclusionary orders, are primarily concerned with removing and keeping the respondent away from the applicant and/or dependent person. These exclusionary orders may also incorporate elements of the behavioural orders in setting out additional requirements to be complied with by the respondent. There are three exclusionary orders: barring orders, interim barring orders and the new emergency barring order. Occupation orders in England and Wales also potentially allow for the exclusion of an abuser in specific instances, but they are not directly analogous to the ‘barring’ orders in Irish law as they also encompass a myriad of other orders that can be made in respect of a ‘home’.

The keeping away of the respondent from the victim of the abusive behaviour is a much more robust intervention in the lives of the applicants and/or dependent persons. However, the different kinds of barring orders in Ireland are, like occupation orders, only available to restricted categories of people. Ostensibly, this is due to the existence of property protection in the Irish Constitution under Article 43 and Article 40.3.2 (Debates 1995d). But even the new short term emergency barring order which was introduced to protect people who do not have a sufficient property interest in a living place to oust the respondent, still only applies to a very limited category of people.

Barring orders

Barring orders were initially introduced into Irish law by section 22 of the Family Law (Maintenance of Spouses and Children) Act 1976 and despite variations in who can apply, the present order under section 7 of the 2018 act remains remarkably similar in substance. Section 7(8) establishes that if the District Court or Circuit Court grant the order, it will initially last for a maximum of three years. Sections 7(9) and 7(10) however allow for further renewal of orders granted. In addition as with the safety order, there is no specified limit if the order is granted by a higher court. Therefore, a recent barring order granted by the High Court in A v. B [2020] IEHC 610 was put in place until a further order was made (para. [60]). Like the other orders an application to vary (section 7(12)) or to discharge (section 21) can be made before the expiry of the order.

The effect of the full barring order is twofold: remove and keep away a respondent who ordinarily shares accommodation with the applicant and/or dependent person and keep away a respondent who lives elsewhere. Section 7(3) allows for the imposition of additional conditions similar to the key elements of safety and protection orders. Therefore as well as barring the respondent, the court may also order them to refrain from ‘using or threatening to use violence against, molesting or putting in fear, the applicant or a dependent person’ and/or to stop the respondent from ‘attending at or in the vicinity of, or watching or besetting, a place where the applicant or a dependent person resides’. Further, the respondent may also be ordered to cease ‘following or communicating (including by electronic means) with the applicant or dependent person’. The court is also free to add other conditions to a barring order under section 7(4).

A notable distinction between the barring order and the behavioural orders is the much more limited categories of applicants. The first category of people who can apply for a barring order is spouses and former spouses (section 7(1)(a) and section 2), and civil partners and former civil partners (section 7(1)(b) and section 2). This category of applicants either are or were in an intimate contractual relationship with the respondent. In drafting the previous similar provision under the 1996 act, it was submitted that spouses were able to bar each other from the home due to the fact that the protection of the married family under Article 41 of the Constitution superseded individual property rights (Debates 1995d). However, this justification was put forward before the introduction of divorce³ and civil partnership⁴ into Irish law. Notwithstanding this, those in intimate contractual relationships both have entitlements to the shared home under the Family Home Protection Act 1976 and part 4 of the Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010. Further, even after these relationships are dissolved they continue to have a right to apply to court for proper provision in respect of property under section 14 of the Family Law (Divorce) Act 1996 (as amended) and section 118 of the Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010 until a new marriage (and previously civil partnership) is entered into. Such protections might further explain why this category of people can apply for a barring order irrespective of who has a legal share in the accommodation where the applicant is living.

Present spouses and civil partners in England and Wales with no legal or beneficial entitlement to the property are entitled to ‘home rights’ under section 30 of the Family Law Act 1996 by virtue of their connection to a spouse or civil partner who does have property interests in the family home. This entitlement, in turn, allows them to obtain an occupation order which may recognise their right to remain in the home as well as potentially exclude the other spouse or civil partner in a domestic violence situation under section 33. Once the marriage or civil partnership has ended however, the ability to apply for such an order will be dependent on either the party having property rights which gives them an entitlement to occupy the property or satisfying the criteria under section 35 as a former spouse/civil partner who does not have a right to occupy the property. If a former spouse or civil partner falls within this latter domain, more extensive considerations come into play including the period of time that has passed since the parties have lived together (section 35(6)(e)) and how long it has been since the marriage or civil partnership has been dissolved (section 35(6)(f)). Although the recent Irish case of A v. B [2020] IEHC 610 made reference to the property interest of a former spouse (by virtue of an order being made by the same court) in granting a barring order, according to the text of the Irish legislation such evaluations are not required which means that former spouses and civil partners have more extensive protection under Irish law irrespective of their property interests.

As well as spouses and civil partners with home rights, and former spouses and civil partners without, in England and Wales anyone who falls into the category of an associated person who ‘is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation’ can apply for an occupation order as an ‘entitled person’ under section 33 of the Family Law Act 1996. The Irish Domestic Violence Act 2018, in contrast, fails to allow for the inclusion of parties with property rights generally and instead restricts application for a barring order under section 7 to two further categories: parties in intimate relationships cohabiting prior to the barring order application (section 7(1)(c)) and applications by parents of non-dependent children (section 7(1)(d)). Both these classes of applicants must demonstrate to the court that they have a legal or beneficial interest in the accommodation they wish to bar the respondent from which is greater or equal to the interest of the respondent. This limitation is due to the belief that it would not be constitutionally possible to bar the respondent in these relationships if they had a greater interest in the accommodation than the applicant (Debates 1995d). Notwithstanding this, the introduction of emergency barring orders (discussed below) indicates that time limited intervention is now acceptable in such cases.

The restrictions in respect of occupation orders in England and Wales are similarly concerned with property interests (Burton 2022, p. 50) but, notably, there is no provision in Irish law for a cohabitant with no right to occupy the family home to apply for a barring order (or interim barring order) once specific requirements are met as there is under section 36 of the Family Law Act 1996. Such a party would now have possible recourse under the new emergency barring order in Ireland, but this could only last for a maximum of 8 working days in contrast to the potential six months for an occupation order granted under section 36 (with potential extension to a further six months). Neither is there the possibility under the Irish Domestic Violence Act 2018 of an order being granted when neither party has a right to occupy the family home as provided for under section 38 of the Family Law Act 1996.

Although the categories of people who may apply for a barring order in Ireland are seemingly limited due to the potential impact on property rights, the main grounds for granting an order are curiously the same as the grounds for granting a safety or protection order. The court will grant an order where it ‘is of the opinion … that there are reasonable grounds for believing that the safety or welfare of the applicant or a dependent person so requires’ (section 7(2)). Safety and welfare also comes into play in respect of occupation orders in England and Wales but only as part of a broader evaluation of the circumstances between the parties (section 33(6)) in situations where the higher threshold of ‘significant harm’ under section 33(7) is not met. In addition, section 7(2)(b) of the Irish Domestic Violence Act 2018 sets out that when deciding whether to grant a barring order, the court must take into consideration ‘the safety and welfare of any dependent person in respect of whom the respondent is a parent or in loco parentis’ if that dependent person is living in the residence where the respondent would be barred from entering. The existence of children closely connected to the respondent could therefore frustrate the granting of a barring order to protect an adult applicant and/or another dependent person. There is also a requirement to consider the wider impact of a potential occupation order before it is granted under the significant harm test of section 33(7) and the general assessment under section 33(6) of the Family Law Act 1996 in England and Wales. This allows for the effect of the order on the respondent to additionally be taken into account, as part of an overall balancing exercise of significant harm and housing needs respectively.

Where an application is made for a domestic violence order in Ireland and the court considers that a child might require a child care order under the Child Care Act 1991 (as amended), then the court may order the CFA to make an investigation under section 12. However, research indicates that the courts are reluctant to make such directions (Conneely et al. 2019, p. 84). There is therefore an additional risk of section 7(2)(b) not only inhibiting the grant of a necessary barring order for direct victims but also failing to protect children who, although not subject to a barring order application, may be at direct or indirect risk from the behaviour of the respondent.

Notwithstanding this, the core standard of safety or welfare is also problematic due to the minimal guidance on its interpretation in the 2018 act. This is compounded by lingering doubt regarding the impact of the old Supreme Court decision of OB v. OB [1984] IR 182 which provided guidance on the meaning of safety and welfare in the context of the barring order as it existed under the old Family Home (Protection of Spouses and Children) Act 1981 (Law Society of Ireland 1999 p. 21, Bergin-Cross 2013, p. 119).⁵

In OB v. OB [1984] IR 182 a Supreme Court majority refused to grant a barring order to a wife in respect of verbal and economic abuse carried out by her husband. The behaviour was viewed as endemic to the incompatibility of the two parties and as such a symptom of the breaking down of the marriage as opposed to domestic abuse. O’ Higgins CJ, for the majority, defined safety as concerned with ‘actual or threatened physical violence’ and welfare as concerned with emotional or psychological wellbeing (p.188). This interpretation also broadly aligned with the view of the dissenting Griffin J although he considered that there might be additional factors to consider in respect of children (p.194).

However, O’ Higgins CJ seemed to further limit this interpretation by requiring, ‘serious misconduct on the part of the offending spouse- something wilful and avoidable which causes, or is likely to cause, hurt or harm, not as a single occurrence but as something which is continuing or repetitive in its nature’ for an order to be granted (p. 189). This, coupled with the majority’s refusal to grant a barring order in this case irrespective of the effect the husband’s behaviour had on the wife and children, seemed to lead to a subsequent restrictive approach to granting barring orders under the 1981 Act (Ward 1988). But in England and Wales there also has been a history of difficulties in non-physical violence being accepted within the scope of domestic abuse (Burton 2022, p. 4) which suggests that the problem may be more due to social as opposed to purely legal interpretations of domestic violence.

The emphasis on the ‘wilful’ nature of the husband’s behaviour in OB v. OB [1984] IR 182 seemed to require intent on the part of the respondent for an order to be granted. A similar requirement for intent was deemed necessary in the English decision of Johnson v. Walton [1990], p. 1 FLR 350 when construing the term ‘molestation’ albeit in the context of undertakings made by parties to the court. This seems to have led to confusion in the law of England and Wales (Burton 2022, pp. 3–5 and 48–50), although the more recent decision of Re T (A Child) (Non-Molestation Order) [2017] EWCA Civ 1889 indicates that intention should not be required for the grant of a non-molestation order in considering the ‘health, safety and well-being’ of the applicant or relevant child.

In the 2020 Irish High Court decision of A v. B [2020] IEHC 610 an indefinite barring order was granted against a former spouse who undertook a campaign of emotional and financial abuse against his children and former wife. The behaviour of the husband was so virulent that it continued throughout the court proceedings. Unlike OB v. OB [1984] IR 182 there was also evidence of at least one act of physical violence although this did not seem to bear particular weight on the court’s overall decision in light of the extensive emotional abuse. However, there was no evaluation of what was meant by safety and welfare or indeed any overt analysis of the section 5 factors under the 2018 Act which are supposed to guide a court in deciding whether to grant any of the orders. Neither was there any reference to OB v. OB [1984] IR 182, but the behaviour of the respondent in this case could easily be classified as ‘serious misconduct … . wilful and avoidable which causes, or is likely to cause, hurt or harm, not as a single occurrence but as something which is continuing or repetitive in its nature’. Notwithstanding this, the same judge in A v. B [2020] IEHC 610 was willing to grant an interim barring order, which has a higher threshold of grant, in X v. Y [2020] IEHC 525 against a spouse whose behaviour was not as virulent as that outlined in A v. B and consisted of no physical violence. Such an approach would not seem tenable if the old decision of OB v. OB [1984] IR 182 was still the definitive position. However, the uncertainty surrounding the meaning of safety and welfare and ergo the actual threshold for granting barring, safety and protection orders lingers.

Interim barring orders

Section 8 allows for the grant of an interim barring order whilst the applicant for a barring order is waiting for a hearing. Therefore, the same category of people who can apply for a barring order can apply for an interim barring order: spouse/former spouse; civil partner/former civil partner; and, if the same relevant property requirement is satisfied, a person in an intimate relationship with the respondent prior to the application being made or a parent of a non-dependent child.

If granted on notice to both parties, it will last until the decision in respect of the full barring order application is made, unless a successful application for discharge is made in the meantime (section 21). An application to vary the order can also be made under section 8(8). As it is a temporary order, it is possible to obtain an interim barring order ex parte if it is ‘necessary or expedient to do so in the interests of justice’ (section 8(10)). In this instance, it will only last for a maximum duration of eight working days unless the respondent is notified and the court confirms the order. This time limitation derives from the Supreme Court decision of DK v. Crowley [2002] IR 744 which found that the granting of an unlimited interim barring order ex parte (under the unamended Domestic Violence Act 1996) was a disproportionate interference with the respondent’s personal and family rights. (p. 757–758). In addition to the time limit, there are also additional safeguards so that the applicant’s evidence must be given by affidavit or otherwise sworn (section 8(11)), that a note of evidence be completed (Section 8(13)(a)), and both be presented to the respondent with the order (section 8(13)(b)).

The effect of the interim barring order is the same as the barring order: the respondent is ordered out of shared accommodation and/or ordered to stay away. In addition, other elements that can be included in a barring order may also be included in the grant of an interim barring order (section 8(2) & 8(3)). Similarly to how the protection order acts as a temporary version of a safety order, the interim barring order acts, for the most part, as a temporary version of the full barring order. There is however one notable distinction: there are alternative, seemingly stricter, grounds for the granting of the interim barring order. Therefore, in order for a court to grant an interim barring order it must have ‘reasonable grounds for believing … there is an immediate risk of significant harm to the applicant or a dependent person’ (section 8(1)(a)). Further, a protection order must not be sufficient to provide the required protection for the applicant and/or dependent. (section 8(1)).

A literal reading of this provision would suggest that interim barring orders are designed to deal with more immediate and dangerous instances of domestic abuse (e.g. where there is an imminent threat to life). Indeed, such a reading would seem to be supported by the impact that the order has on the constitutional rights of the respondent, especially when granted ex parte. Therefore in introducing the provision in the 1996 Act, it was submitted that the order should ‘cover unusual, exceptional and extreme cases’ (Debates 1995c).

Notwithstanding this, the 2020 High Court decision of X v. Y [2020] IEHC 525, in affirming an interim barring order granted against a husband, favoured a broad purposive interpretation. In this case, the parties had informally separated but continued to live together in the same house. The behaviour of the husband mostly constituted arguments in respect of childcare and silent menacing staring. However, there were also instances of threats that the wife would get her ‘comeuppance’ (para. [13]) and warnings to ‘be careful’ in the course of the arguments (para. [29]). In addition, on one occasion he unexpectedly followed the wife and children on holiday (para. [20]).

In X v. Y [2020] IEHC 525 Barrett J considered the threshold of ‘immediate risk of significant harm’ as necessitating a broad interpretation in view of the fact that the purpose of the 2018 Act was ‘to eliminate what the Oireachtas clearly perceives to be a pernicious evil’ (para. [40]). He found that in requiring an ‘immediate risk of significant harm’, only the risk need to be imminent and not the harm and that, further, immediate should have the ‘the widest possible interpretation’ (para. [40]). ‘Significant’ was also given a broad meaning so that it only ‘excluded harms that are so utterly and completely trivial and/or contrived in nature or substance that a reasonable-minded person would conclude that in truth no harm had been suffered at all’ (para. [41]). This broad interpretation was exemplified in the court’s view that, ‘in practice there will be few if any real-life circumstances in which … [identified] harm is found not to be a “significant harm”’ (para. [41]). Finally, the word ‘harm’ itself was deemed to have ‘the widest possible meaning’ such that it included ‘any “evil (physical or otherwise), [or] hurt, [or] injury, [or] damage, [or] mischief’ (para. [42]).

This interpretation of ‘immediate risk of significant harm’ clearly casts the broadest possible net in capturing behaviour under the domain of interim barring orders. But in the context of the conservative approach to providing protection elsewhere in the Act, and the original view of the order as applicable in only extreme cases, the interpretation in X v. Y [2020] IEHC 525 is open to criticism. Indeed, the Annual Review of Irish Law 2020, although expressing empathy with the ‘human instincts’ underlying such an interpretation, questioned whether the provision should have been interpreted ‘quite so broadly’ (Byrne and Binchy 2021, p. 508). It is also questionable whether such a broad interpretation in respect of potentially ex parte orders is constitutionally sustainable in view of the earlier decision of the Supreme Court in DK v. Crowley [2002] IR 744. This in turn might raise problems for the new emergency barring order which utilises similar language to the interim barring order in setting the standard for its grant, but allows for specific parties with no or minimal property interests in the accommodation they occupy to bar a respondent with maximum or greater property interests therein.

Emergency barring orders

Proposals for an alternative time limited exclusionary order for parties who fell outside the umbrella of the full barring order (and therefore also the interim barring order) had been earlier proposed and rejected in the drafting of the 1996 Act (Debates 1995b). Notwithstanding this, such an order did eventually emerge in response to Ireland’s obligations under the ratified Istanbul Convention in the 2018 Act (Debates 2017b).

The main aim of the emergency barring order seems to be ‘to facilitate those who are not eligible to apply for a barring order or an interim barring order to make arrangements to clear their possessions out of a property and make some interim arrangements for alternative emergency accommodation’ (Debates 2017a). However, the order does not provide relief to all parties suffering domestic violence who fall outside the scope of the existing barring orders. Instead, it focuses on providing protection for those who would meet the requirements for the full and interim barring orders if they satisfied the required property interests. Therefore, parents of non-dependent adult children (section 9(1)(b)) or cohabitants/former cohabitants in intimate relationships (section 9(1)(a)), with no interest or an interest less than 50% in the property they wish to bar the respondent from, are the only two categories who may apply for an emergency barring order.

Due to the potential impact on the respondent’s majority property interests, the maximum duration of the emergency barring order is necessarily short: eight working days (section 9(3)(b)). There were calls to extend the period but these were rejected on the basis that it would constitute too much of an interference with the respondent’s property rights (Debates 2017a). Further, ordinarily an emergency barring order can only be renewed if a period of one month has passed since the initial order has expired (section 9(16)(a)). However, in ‘exceptional circumstances’ the court may dispense with this requirement albeit whilst ‘having due regard to the circumstances of the respondent’ when making its decision (section 9(16)(b)).

Notwithstanding the dominant property interests of the respondent, the emergency barring order may also be made ex parte if the court finds that it is ‘necessary or expedient to do so in the interests of justice’ (section 9(11)). Such an order can also last for a maximum of eight working days. The same formalities of obtaining an ex parte interim barring order and protection order must be met (section 9(12–14)). Similar to the other exclusionary orders, section 9(3) sets out a two pronged approach to excluding the respondent from the home of the applicant and/or dependent person. Therefore, if the respondent is living with the applicant and/or dependent person, they will be ordered to leave and, irrespective of whether they are living there or not, the respondent will be barred from entering the place for the duration of the order. The court may also impose any of the specific conditions available for the full barring and interim barring orders under section 9(4) (not to threaten, molest, put in fear; not to watch, beset or attend the property; and not to follow or communicate) as well as any other conditions the court might consider appropriate (section 9(5)). Applications to vary or discharge the order may be made after its grant (sections 9(8) and 21).

The threshold for obtaining the emergency barring order is that the court is of the view ‘that there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or a dependent person if an order is not made immediately’ (Section 9(3)- own emphasis). As discussed above, the interpretation of ‘immediate risk of significant harm’ was interpreted broadly in the decision of X v. Y [2020] IEHC 525 in the context of the interim barring order. But it is unclear what impact the condition ‘if an order is not made immediately’ would have on the grounds for grant of an emergency barring order. There is scope for the phrase to have a narrowing effect such that there is need for an immediate harm as opposed to an immediate risk of harm. But if a court considered the constitutional issues to be aptly dispensed with by the imposition of the time limitation on the duration of the order, it is possible that the phrase would make little difference to the overall construal of the provision. This latter approach is more likely in view of the tenor of the overall judgment of X v. Y [2020] IEHC 525, which demonstrated an overriding policy concern of the judiciary to eradicate domestic violence irrespective of the precise wording of the provision.

The introduction of the emergency barring order is to be welcomed, but by continuing to focus on those in present and past intimate cohabiting relationships and parents of adult children, it only minimally broadens the scope of protection for victims by disregarding the property interest in these instances. Even in this regard, the short time period seems to predominantly limit the application of the order. Although it could provide protection in rare instances where the respondent’s behaviour is an outlier to their habitual conduct (e.g. unusual substance abuse), it seems more practically useful to someone who is already planning to leave their accommodation to escape the respondent as outlined in the Seanad Debates. The potential use of the order to deal with a perpetual abuser where the applicant and/or dependent person continues to live with the respondent once the order expires would seem to present dangerous risks of retaliation for the victim.

Failure of the orders to provide protection

It is apparent from this overview of the orders available under the Domestic Violence Act 2018 that access to protection is predominantly prescribed on the basis of the identity of the victim and their relationship with the abuser, and not the kind of behaviour they are forced to endure. In particular there seems to be a reluctance to provide full protection to those who fall outside the traditional prioritised domain of domestic violence in present or former intimate contractual relationships. This approach results in three main problems. Firstly, some adult victims are completely excluded from protection. Secondly, children are treated as secondary victims whose protection is dependent on the existence of a qualifying adult. Thirdly, unjustifiable distinctions grounded on relationship status and property interests are created between adults who are recognised as victims of domestic abuse under the Act. Not only does this mean that many victims are left with minimal or no civil protection, it also perpetuates a limited understanding of what constitutes domestic violence in Irish society. This in turn discourages these marginalised victims from seeking help and inhibits the perpetrator of the violence from recognising their behaviour as unacceptable.

Excluded adult victims

The main category of adult victims completely excluded from protection are those in familial or quasi-familial situations who do not share accommodation. In 2019 the Irish Law Reform Commission in its Issues Paper on Adult Safeguarding noted that at risk adults could be vulnerable to abuse by adult siblings living elsewhere which is not covered by the Domestic Violence Act 2018 (Irish Law Reform Commission, 2019, p. 119). In addition, even though adults with non-dependent children are provided with relatively broad protection under the Act, there is a failure to take into account the possibility that they could be subject to the same kind of abuse from a relative or informal carer. If the domestic abuser were living with the victim they might have access to safety and protection orders under the remit of adults living together in a primarily non-contractual setting. But if the abuser were living elsewhere, they would have no recourse under the 2018 Act. Although this was highlighted by the Irish Law Society in respect of the 1996 Act as far back as 1999 (p.17), such gaps were not dealt with in the Domestic Violence Act 2018.

This is in contrast to the broader scope of ‘associated people’ who have access to non-molestation orders in England and Wales under the Family Law Act 1996 which includes ‘relatives’ under section 62(3) as defined under section 63. The definition of relative is broad but finite as demonstrated in M v D (Family Law Act 1996: Meaning of Associated Person) [2021] EWHC 1351 which still risks leaving adults in domestically abusive situations without protection from relationships which are quasi-familial in nature. In this regard, the Irish legislature might be best served to expand on its existing protection for people in non-contractual non-intimate living arrangements to similar relationships where the parties do not share accommodation and are of a relative or quasi-relative nature. A non-exhaustive list of examples of the kind of relationships that would fall within both these domains would further assist people to identify abusive situations within this category. It is however untenable to continue to leave adults who find themselves at risk of domestic abuse due to personal or external factors without protection under the Domestic Violence Act 2018. The present approach can only contribute to a pre-existing lack of awareness that domestic abuse exists in these situations (Casey 2021). The situation is further exacerbated by the lack of generic civil remedies available under Irish law. The Criminal Justice (Miscellaneous Provisions) Bill 2022 includes a draft provision for a new restraining civil order dependent on behaviour as opposed to relationship connections between the abuser and the victim, but currently there is no legislative civil protection for those who are deemed to fall outside domestic violence law in Ireland.

Such gaps are even more bewildering in the context of broad protection afforded to other categories of victims. Therefore, former spouses and civil partners are afforded the same protection as present spouses and civil partners in having options to apply for barring orders without needing to demonstrate any majority or equal property interests in their accommodation. As is evidenced in the 2020 decision of A v. B [2020] IEHC 610 there are situations where such orders are expedient to protect parties, particularly in respect of virulent abusers or where ongoing contact is necessary due to shared children. However, there is no time limit imposed for how long after the dissolution of the intimate contractual relationship a former spouse/civil partner has access to this protection. On the other hand, the law relating to occupation orders in England and Wales under the Family Law Act 1996 treats former spouses and civil partners differently to those in subsisting marriages and civil partnerships. The Irish Act therefore provides extensive protection to parties who (in many circumstances) will have limited contact with a potential abuser whilst ignoring those who are in continuing contact with, and possibly dependent upon, an abuser.

Children as secondary victims

The Istanbul Convention expressly recognises children and child witnesses of violence as victims of domestic violence (preamble). The recent EU Proposal for a Directive of the European Parliament and of the Council on Combating Violence against Women and Domestic Violence echoes this approach (COM (2022) 105 final Article 4(c)). Yet there is an absence of direct protection for children under the Domestic Violence Act 2018. This is notwithstanding several requests for stronger legislative protection for children at the second stage Seanad Debates supported by submissions by Barnardos and Women’s Aid (Debates 2017c).

Although any of the domestic violence orders may be granted due to the effect of a respondent’s behaviour on a dependent person, only a person who fits into a category of applicants for that order may make such an application. Section 2 defines a dependent person as ordinarily an underage child but also includes a child of full age who ‘is suffering from a mental or physical disability to such an extent that it is not reasonably possible for him or her to live independently of the applicant’. The dependent person is further defined by how they are connected to the applicant and/or respondent. Therefore, they could be the shared child of both the applicant and/or the respondent or one to whom both are in loco parentis (section 2(a)). Alternatively, they could be the sole child of the applicant or one to whom the applicant is in loco parentis (section 2(b)). Further, the child could be the child of either party where the other is in loco parentis towards them (section 2(c)). As children are only offered protection in respect of their connection to the applicant and respondent, this means that older children in abusive dating relationships or abusive alternative familial or quasi familial relationships are completely excluded from protection under the Act.

In 2013 Bergin-Cross suggested that dependent children should be able to apply for a safety order on their own behalf (p. 120). In 2017, the Law Society of Ireland unsuccessfully recommended extending access to safety and protection orders to ‘young people under 18 years of age’ in intimate relationships (Law Society of Ireland 2017 para. [3.2]). A similar proposition to open access to orders for older children in domestically violent situations was put forward by the former Special Rapporteur on Child Protection, Geoffrey Shannon in his 2018 and 2019 reports to the Oireachtas. It was suggested that such children, ‘having regard to their age and maturity’ should have the power to apply for civil orders under the Domestic Violence act 2018 (Shannon 2018, p. 270, see also Shannon 2019, p. 169-170). As discussed above, the Irish approach is in contrast to the approach in England and Wales which allows children to make applications for non-molestation and occupation orders with leave of court if the child is under the age of sixteen. In addition, a court may grant a non-molestation order in the course of other family law proceedings even where no application is made.

The CFA ordinarily has a safeguarding role in respect of children in Ireland under section 3 of the Child Care Act 1991 (as amended by the Child and Family Agency Act 2013). Section 11 of the 2018 Act empowers the CFA to make an application for a civil domestic violence order on behalf of an adult applicant who is too frightened to make the application themselves. However, there is no provision for the CFA to make a direct application to protect a child victim. Therefore, if a child is a victim of domestic violence and there is no one sufficiently connected to them who is legally able or willing to make an application, that child is left without protection under the 2018 Act.

In this situation the protection of the child would seem to fall within the domain of the Child Care Act 1991. The Child Care Act 1991 allows the CFA to make various interventions to protect a child at risk, but to take such intervention it would have to first come to its attention. There are statutory reporting obligations placed on certain people (e.g. teachers, doctors, social workers etc.) in respect of children under the Children First Act 2015 which could result in such an intervention. There is, however, also potential for a court to mandate a CFA investigation into a child’s welfare if it seems to the court that it might ‘be appropriate for a care order or a supervision order to be made with respect to a dependent person concerned’ in proceedings for an domestic violence order under the 2018 Act (section 12). Further, under section 5(1)(e) a court is always required to consider ‘any exposure of any dependent person to violence inflicted by the respondent on the applicant or any other dependent person’ in making a decision in respect of any domestic violence order. Notwithstanding this, there seems to be no automatic view that a child exposed to domestic violence is a victim in Irish law. This differs from the Domestic Violence Act 2021 where familial children exposed to domestic violence in England and Wales are expressly classified as victims of that domestic violence (section 3(2)).

Leaving the protection of children to intervention under the Child Care Act 1991 is questionable in light of the 2015 report compiled by the Child Care Law Reporting Project (CCLRP) where domestic violence was found to have contributed to just 2.3% of child care interventions made by the CFA (Coulter 2015, p. 61). Indeed, in the Child Law Reporting Project: Ripe for Reform Document 2021 the CCLRP indicated that domestic violence and its effect on children was something that needed ‘to be considered by the CFA’ (Corbett and Coulter 2021, p. 97). This problem may be being further aggravated by the underutilisation of the limited protection that does exist under the Domestic Violence Act 2018.

In research carried out in 2017 in various District Courts over a period of 14 days, it was discovered that no civil domestic violence order applications were made in respect of behaviour towards children. The researchers noted that, ‘allegations of violence that involved a child were very rare; we only observed one case where there was an allegation of physical violence against a child’ (Conneely et al. 2019, p. 80). More damningly, it was observed that no referrals were made by the court to the CFA under the equivalent referral provision of the 1996 act (Conneely et al. 2019, p. 84). This was in spite of the fact that in the same research disputes over child access seemed to present in 23.3% of the domestic violence applications (Conneely et al. 2019, p. 83), thereby indicating that children were often centrally located within domestically violent situations.

In the 2020 decision of X v. Y [2020] IEHC 525, Barrett J affirmed an interim barring order in respect of a wife, but did not include the children despite much of the behaviour taking place in front of the children and concerning disputes over their care. Indeed, the order as affirmed included specific conditions to allow the husband to collect and drop the children home. In contrast, where the children were direct victims of the respondent’s behaviour, the same judge was willing to grant an order which included the children in A v. B [2020] IEHC 610.

There is overwhelming research demonstrating that direct and indirect experience of domestic violence has a detrimental impact on children which follows them into adulthood (Holt et al. 2008, Roberts et al. 2010, Barnardos 2016, Women’s Aid 2017), yet the reticent approach to child protection in the Domestic Violence Act 2018 fails to reflect this by not recognising children as victims in their own right. It is submitted that legally it would be challenging to facilitate direct applications from children and that even opening access directly to older children could be problematic due to varying levels of maturity and the need for such children to have specialised support in taking action. However, the present flawed approach could be alleviated by allowing the CFA to apply directly for existing orders on behalf of children. Further, the court could be given power to make orders for children in the course of domestic violence and other proceedings where no application in respect of the child has been made. But going forward it would be preferable if a specific domestic violence order was designed for the protection of children designating the CFA or some other appropriate body as the representative applicant.

Qualifying victims: unjustified limitations

The safety and protection orders are the most inclusive orders under the 2018 Act and statistically the most applied for orders. Therefore, in 2020 8,887 applications for safety orders and 7,649 applications for protection orders were recorded by the Irish Courts Service. In contrast, there were 3, 323 applications for barring orders and 1,918 applications for interim barring orders (Courts Service 2020 p. 62). But it is questionable whether the behavioural orders are fit for purpose when they carry the potential risk of antagonising a respondent who remains living in the same accommodation with the applicant and/or dependent person. This risk was demonstrated in the case of X v. Y [2020] IEHC 525, where post the grant of a protection order to a wife against a husband the husband’s behaviour, initially consisting of silent staring and arguments about the children, escalated to him stalking the wife and children on holidays.

Further, although safety and protection orders offer only minimal protection, the main threshold for granting one of these orders is the same as that required for the more powerful full barring order: safety or welfare. This is problematic as it means more robust protection is available not based on the degree of abuse suffered but on how the applicant is connected to the respondent and/or whether they meet any required property interests. Therefore, a spouse who is being threatened with a knife attack by another spouse could apply for safety, protection or barring orders (and potentially an interim barring order with the higher threshold). Whereas a person who is living in a primarily non-contractual arrangement with an abuser, who is also threatened with a knife attack by that abuser, can only apply for safety and protection orders.

This limited and potentially aggravating impact of safety and protection orders, means that the current narrow category of people who can apply for full and interim barring orders is especially problematic. In the 1996 parliamentary debates regarding the scope of applicants who could apply for a barring order, Deputy Michael Woods queried why a parent living with a violent adult child could apply for a barring order but an adult sibling living in the same accommodation could not (Debates 1995a). He described such a distinction as ‘unnecessarily restrictive’ and lacking reasonable grounds (Debates 1995a). However, the then Minister for Equality and Law Reform, Mervyn Taylor, rejected this contention on the basis that the barring order was designed to protect ‘special classes’ who were ‘particularly prone to domestic violence’ (Debates 1995d). This argument is unconvincing in view of the fact that the broad protection afforded to spouses is gender neutral, while statistics indicate that violence more commonly occurs against women than men (Conneely et al. 2019 p. 80, UK Office of National Statistics 2021). By the time the 2017 Domestic Violence Bill was in discussion, there seemed to be an implicit acceptance that such other categories were not deserving of protection.

One issue that has always acted as a barrier to extending the scope of domestic violence protection is the perceived need to protect the constitutional property rights of the respondent but there is an unfortunate lack of debate on this obstacle. Despite the non-absolute nature of property rights there has been a failure to engage in any kind of analysis of how and when such rights could be limited for the benefit of victims of domestic violence. Therefore suggestions that the right to bodily integrity and other rights might override property rights have been ignored (Debates 1995e, Bergin-Cross 2013 pg. 121), even though it is difficult to conceive how a right to property could override a serious instance of domestic violence which places another person’s life at risk. At the very least it should be possible to introduce an order where obvious life threatening behaviour could allow for barring intervention for all victims of domestic violence irrespective of property interests. The 2018 Act does make some inroads on this problem with the introduction of an emergency barring order. But this, like the full and interim barring orders, is still very limited in the range of victims it protects. Further, even if the property rights barrier is justified, this does not explain why victims who would meet the property interests under the interim or full barring orders (e.g. a sibling who had equal share in a house shared with a respondent sibling) cannot apply for such protection or why the same category of person who does not meet the property threshold cannot apply for an emergency barring order.

The protection of property interests is so strong under the Act that even if the respondent is living elsewhere, the interim and full barring order will not allow a cohabitant in an intimate relationship or a parent of an adult child to exclude the abuser from their residence if the respondent has a majority interest in the property. This is apparent in the substance of the order which clearly includes the possibility of keeping a respondent who lives elsewhere away from the home of the applicant and/or dependent person (section 7(2)(a)(ii)). Retaining the requirement of a property interest for the applicant in this regard seems particularly excessive. But even more problematic is the fact that in such a situation it would seem possible for such an applicant to apply for a safety order and a protection order and achieve a similar exclusionary effect.

The text of a safety order and a protection order can include a mandate, irrespective of the applicant’s property interests, that a respondent who ‘is residing at a place other than the place where the applicant or that dependent person resides’ be prohibited from ‘watching or besetting a place where the applicant or the dependent person resides’ (section 6(2)(b); section 10(1)). Unlawful watching and besetting can constitute the offence of harassment under the Non-Fatal Offences Against the Person Act 1997 but in the context of domestic violence they were briefly discussed in MJL v. Ireland and the Attorney General [2008] IEHC 241. Charleton J. set out that it was,

not lawful to watch a person’s premises as other than by passing and re-passing on the highway, for lawful and reasonable purposes, and no one has the right to sit outside another person’s home staring in … .Nor is it lawful to beset a premises, meaning to surround the persons residing there with a feeling of hostile intent

(para. [12]).

The equivalent potential condition under the barring, interim barring and emergency barring order does include the extra mandate that such a respondent would also be stopped from ‘attending at or in the vicinity of’ the residence of the applicant and/or dependent person (section 7(3)(b); section 8(2)(b); section 9(4)). This might suggest that the legislature envisages a more limited interpretation for ‘watching and besetting’ that does not necessarily include keeping the respondent out of the accommodation. But it would seem bizarre if a person could be ordered not to watch or beset premises but still be allowed inside in order to satisfy their property rights under the terms of a safety or protection order. Indeed, it would make it very difficult for a Garda to determine if such an order had been breached. Hence, not only is the property rights justification for limited access to protection open to criticism, it is being applied inconsistently and contradictorily within the provisions of the Act. It is therefore imperative that a detailed analysis of the impact of constitutional property rights on domestic violence law and how they are incorporated into the civil orders be undertaken.

Conclusion

It is evident from this analysis that the protection available under the present Irish Domestic Violence Act 2018 is unduly focussed on the identity of victims and their property interests, in deciding who merits protection. This is in contradiction to the ratified Istanbul Convention which requires protection for all victims of domestic violence. Further the emphasis on property rights means that the human rights of the victim are being treated as subordinate to those of the abuser, which is again in conflict with the requirements of the Istanbul Convention by refusing to ‘focus on the human rights and safety of the victim’ (Article 18(3)). Although this flawed approach affects many categories of adult victims, it has also resulted in a severely minimalistic approach to the protection of children, leaving many children without any protection and refusing to fully appreciate children who witness domestic violence as victims in their own right.

The Irish government have recently introduced Zero Tolerance, a national Strategy on domestic, sexual and gender-based violence and, under this framework, a new Criminal Justice (Miscellaneous Provisions) Bill 2022 has been proposed with a new general restraining order but it is unclear yet how this order would potentially fit within the domain of domestic violence or whether it would lead to a further othering of non-traditional domestic violence victims. In principle, such attempts to broaden the scope of protection available to victims of behaviour associated with domestic violence is to be welcomed. However, the law of domestic violence in Ireland has evolved by adapting and extending protections that were initially conceived in the late 70s to protect married couples with dependent children as appendages. These origins are represented in a clear bias towards providing protection for those who suffer abuse within intimate or formerly intimate relationships, particularly if they are or were married or in a civil partnership with the abuser. Children have merely secondary status and lack concrete protection under the Act as direct and indirect victims, despite the ongoing effect witnessing violence will have on a child and the danger that ongoing contact with a violent person presents.

Further, this bias ignores the often fragile position that adults outside intimate relationships may find themselves in economically and personally, who may be forced to live with abusive family members or acquaintances due to necessity. Worse still is the position of such a person who due to health or circumstances is dependent on their abuser for assistance or care. These people are not seen in domestic violence campaigns and are marginalised by minimal or absent legal protection. There is reference to the need to consider the position of people with disabilities and children within the most recent strategy document (Irish Government 2022 p.20), but it is important that this is not merely an addendum to the ‘main’ protections for traditionally recognised victims of domestic violence. It is expedient that the legislature return to first principles to consider the many circumstances of domestic violence and move away from the ad hoc classification of ‘deserving’ victims so that equal protection may be provided to all victims grounded on their need for protection and not their relationship with the abuser.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Also known as Tusla.

2. Members of the Irish policing force: An Garda Síochána.

3. Family Law (Divorce) Act 1996.

4. Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Since the introduction of same sex marriage in Ireland, it is no longer possible for anyone to enter into a new civil partnership in Irish law (Marriage Act 2015).

5. Section 2(1) of the Family Home (Protection of Spouses and Children) Act 1981 provided for a barring order to be granted if a court had ‘reasonable grounds for believing that the safety or welfare of that spouse or of any child so requires’.