The Gazette 1979

SEPTEMBER 1979

GAZETTE

warrant. 24 It is also suggested that the protected spouse (i.e. the spouse on whose application a barring order is made) should be able to apply ex parte to the court to have a warrant issued for the arrest of the delinquent spouse. 23 While no power of arrest (with or without warrant) is given to the Gardai in section 22 of the 1976 Act the President of the High Court has pointed out that "To act in breach of an Order made under Section 22 is a criminal offence and the apprehended or attempted commission of it can therefore be properly restrained". 26 The learned President also advised that "Solicitors should always make sure that where such an Order has been obtained either for a limited time or on a permanent basis, the local Garda Siochana in whose district the house from which the spouse has been excluded [or precluded] is located, should be informed that if an attempt is made to break the order, they can notify the Gardai of that fact". 27 If adopted, this procedure would certainly be an improvement on the existing position under the 1976 Act. Physical or Mental Cruelty The Family Law (Maintenance of Spouses and Children) Act 1976 refers to the "safety or welfare" of spouses and children without defining the term. 28 While there are likely to be wide variations of practice among District Justices it would appear that a spouse will generally be liable to the statutory penalties where his conduct would, in proceedings for divorce a mensa et thoro, constitute cruelty, physical or mental. 29 It is clear that if a person molests or puts in fear his spouse or dependent child while a barring order is in force against him, he will be liable to the penalties set out in subs. (3) of S.22. In this respect, the Irish Act is superior to the English Act of 1978. While the English Domestic Violence and Matrimonial Proceedings Act 1976 referred to "molestation" 30 "which has been interpreted to include 'pestering' 31 the 1978 Act uses the more limited expression 'violence'." 32 One commentator points out that "it would thus seem that superior court judges 33 have jurisdiction over mental cruelty whilst magistrates do not". 34 Clearly, this is an anomaly that should be removed. In conclusion, it must be stated that the recent legislation in this country and in England, by providing a more effective remedy in the District Court and in the magistrates' courts, has improved the lot of the battered spouse and child. Nevertheless, for such jurisdiction to be really effective, it will be necessary to amend the legislation on the lines indicated supra. Footnotes 1. 16.—(1) Either party to a marriage may, whether or not an application is made by that party for an order under section 2 of this Act, apply to a magistrates 1 court for an order under this section. (2) Where on an application for an order under this section the court is satisfied that the respondent has used, or threatened to use, violence against the person of the applicant or a child of the family and that it is necessary for the protection of the applicant or a child

Such a power is desirable to cover the kind of case where one spouse instigates a relative or some other person to perpetrate the violence. The Court is not empowered under the English section to make an order, in default of such an application, that the applicant shall not incite or assist any other person to perpetrate violence on the respondent. There is no equivalent power given to the court by the Irish Act of 1976. It seems likely that such a power — enlarged as to cover violence against the respondent — would be useful and provision should be made in future Section 18 of the 1978 Act goes beyond the recommendations of the English Law' Commission by allowing a court to add a power of arrest to a personal protection order and an exclusion order. This follows the experience under the Domestic Violence and Matrimonial Proceedings Act 1976 which empowered the superior courts in England "to grant injunctions against molestation and to exclude a spouse from the matrimonial home". 17 Indeed section 18 is closely modelled, with some differences, on section 2 of the English Act of 1976. The Court may only add a power of arrest to an order "if it is satisfied that the respondent has physically injured the applicant or a child of the family and considers that he is likely to do so again". 18 The attachment of such a power to an order allows a constable to arrest without warrant a person whom he has reasonable cause for suspecting of being in breach of the order. 19 Anyone so arrested must be brought before a justice of the peace within a period of 24 hours. Breach of a personal protection order or of an exclusion order that does not embody a power of arrest may be dealt with by the issue of a warrant upon the applicant proving on oath that the other party to the marriage has disobeyed the order. 20 Barring Orders under the Irish Act Certain criticisms have been levelled at section 22 of the Family Law (Maintenance of Spouses and Children) Act 1976, the chief of which relates to the problem of enforcement. 21 "without prejudice to the law of contempt of court where a person — (a) contravenes an order under this section, or (b) while an order under this section directed against him is in force, molests or puts in fear his spouse or a dependant child, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both". In the District Court the enforcement of a barring order pursuant to subsection (3) is effected by means of a summons. 22 A summons under the District Court [Family Law (Maintenance of Spouses and children) Act 1967] Rules 1976 "[must] be served on the person to whom it is directed seven clear days at least before the sitting of the Court to which the summons is returnable". 23 It is suggested that this rule should be changed so as to allow the Gardai to arrest a delinquent spouse without amending legislation for such a power. Power to arrest for brach of S. 16 order 16 Penalties Subsection (3) of section 22 provides that

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