The Gazette 1979

GAZETTE

SEPTEMBER 1979

The Domestic Violence Jurisdiction of the District Court and the Magistrates 9 Courts

Gabriel J. McCann, B.A. Mod. (Dublin). LL .M. (Yale), Barrister-at-law

The exclusion of a spouse from occupation of the family home often has very serious consequences. As a result of recent legislation in Ireland and England, District Justices and magistrates are empowered to order the eviction of spouses whose behaviour is intolerable. The purpose of this article is to examine the relevant legislative provisions governing the jurisdiction of the District Courts and the magistrates' courts. Prior to the coming into force of the Domestic Proceedings and Magistrates' Courts Act 1978, magistrates' Courts in England were virtually powerless to control domestic violence. They had to rely on the non- cohabitation clause (the so-called separation order). The principal deficiency of the cohabitation clause was that although the applicant was no longer bound to cohabit with her husband, it did nothing to remove him from the matrimonial home. He was free to remain in, or to re- enter, the matrimonial home. Section 16 1 of the 1978 Act abolished the separation order and substituted instead the concepts of the personal protection order and exclusion order. 2 The English reform bears some similarity to recent changes in Irish law. These changes are contained in section 22 of the Family Law (Maintenance of Spouses and Children) Act 1976. The section is based on a recommendation made by the Committee on Court Practice and Procedure, in its 19th Interim Report, entitled Desertion and Maintenance (Prl. 3666, Feb. 1974) 3 The central privision of S.22 is as follows: "(1) On application to it by either spouse, the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of any dependent child of the family requires it, order the other spouse, if he is residing at a place where the applicant spouse or that child resides, to leave that place, and, whether the spouse is or is not residing at that place, prohibit him from entering that place until further order by the Court or until such other time as the Court shall specify". A number of points may be noted. First, either party to a marriage may, whether or not an application is made for a maintenance order under the Act, apply under the section. 4 This is consistent with the general policy of the Act and of other recent legislation directed at removing legal differences based on sex. 5 Second, where the safety or welfare of a child requires it a spouse may apply to the court under the section. 6 Thirdly, "[elither spouse may apply at any time to the Court that made it for the discharge of the order under this section . . . ." 7 On each of these three points the English legislation is similar to s.22 of our Act.

Important differences do, however, exist between the two sections. First, provision is made in the English Act for expedited orders. 8 Subsection (6) of section 16 provides "Where on an application for an order under this section the court is satisfied that there is imminent danger of physical injury to the applicant or a child of the family, the court may make [a personal protection order] 9 notwithstanding — (a) that the summons has not been served on the respondent within a reasonable time before the hearing of the application, or (b) that the summons requires the respondent to appear at some other time or place, . . . " no equivalent provisions are contained in the Irish Act. It has been remarked that "[t]he major disadvantage of [barring order proceedings] lies in the length of time that has to pass before a wife may apply to a court for a barring order . . . ." ,0 A provision similar to S.16(6) of the English Act could with benefit be incorporated into future amending legislation of the 1976 Act. It should, of course, be noted that under existing law, a spouse threatened by imminent violence may always apply to the High Court (or the Circuit Court) for an injunction against the other spouse. Second, subsection (4) of section 16 provides that "[w]here the court makes an [eviction or exclusion order] the court may, if it thinks fit, make a further order requiring the respondent to permit the applicant to enter and remain in the matrimonial home". The purpose of this power is to stop a violent spouse who is excluded from the home taking steps, such as interfering with the locks, to prevent the other party who has fled the home from re-entering and occupying it. 11 Protection against this type of conduct is afforded in Irish Law, not under S.22 of the Family Law (Maintenance of Spouses and Children) Act 1976 but by S.5 of the Family Home Protection Act 1976. 12 Third, an order under section 16 of the 1978 Act "may be made subject to such exceptions or conditions as may be specified in the order . . , 13 The court thus has power to authorise entry into the home for a temporary and limited purpose, such as, the collection and removal of personal belongings or clothes. 14 No equivalent power is explicitly provided for under the Irish 1976 Act. Finally, the court is making a personal protection order under section 16 "may" include provision that the respondent shall not incite or assist any other person to use, or threaten to use, violence against the person of the applicant, or as the case may be, the child of the family". 15

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