Family Law must consider the long-term wellbeing of all the family
A safety order can be sought to prohibit her partner from acts or threats of violence and other intimidating behaviour while a barring order does the same but in addition prevents him from entering the family home.
A judge may grant one or the other but can grant neither without a full court hearing with the partner given a chance to oppose them, and the experience of domestic violence support services is that the most dangerous time for an abused woman is when her abuser finds out she’s planning to escape him.
To keep her safe from the time her partner is notified of court proceedings to the day the hearing takes place, he will be served with a protection order — or in exceptional circumstances an interim barring order — which comes into effect immediately.
At least it does if there happens to be a court sitting in her town the day she applies or she can get to a judge sitting somewhere else. Otherwise, she will have to time her application to coincide with a court sitting. And if she feels she needs a protection order on a Friday night, Monday can seem a very long way off. Waiting for the full hearing can also be anxious time because it may be weeks before she gets a date.
“There is a huge demand for more family law days,” says Deirdre Burke, a solicitor specialising in family law.
“If you are working in the provinces, a lot of courts have one family law day a month and the judge could have 20-40 cases on that day.
“It’s impossible to give each case the time that is needed to process it fully. Either the cases are dealt with of necessity too quickly or they are put back to the next month or the month after.”
Burke also has a concern about the fact that many applications are made by individuals without legal advice. Applicants don’t have to have a solicitor make the application for them, although they are advised to have legal representation at the full hearing.
But a poorly presented application that fails to adequately explain the nature of the threat to the applicant puts the onus on a time-pressed judge to try to tease out the greater detail.
According to the Courts Service, fewer than half the barring and safety order applications made in 2011 were granted — just 2,556 out of 6,518. The reasons for not granting are not given — possibly many were simply not warranted — but Burke has concerns that genuine cases could be slipping through the net.
“People making those applications are very often in a very distressed state and it’s very difficult for them to communicate what they are going through. If I can sit down with somebody in my office, in a secure environment where they can talk openly, it’s easier for me to impart that information in court than for them to go alone into what can be a very intimidating environment.”
However, it’s not easy to get legal advice. It’s costly to pay privately and the Legal Aid Board is struggling with growing demand and waiting lists.
“There is an obligation on them to take cases where safety is an issue as a priority, but in practice it’s not always happening because they don’t have the resources.”
Burke worries about the aftermath of a rejected application. “I would be very reluctant to bring an application for anyone unless I’m sure it’s going to succeed because, if it does not succeed, they can be put at more risk.”
However, even success in court is no guarantee of safety outside of it. In 2010, the most recent year for which records are available, there were 1,184 recorded brea-ches of domestic violence orders.
A breach is a criminal offence carrying a possible prison sentence of up to a year, but of the 909 cases finalised in the courts in 2010, just 317 resulted in a conviction.
The reason for the low conviction rate is not clear but Burke stresses it’s not necessarily a sign that the courts don’t take breaches seriously.
“Normally what happens is there will be family law going on side by side with the criminal matter and if the family is moving forward in a positive way and access and maintenance arrangements are working well, a judge might be reluctant to impose a custodial sentence.”
However, there can also be a reluctance to convict where a woman agreed to a breach and allowed, or even invited, her ex-partner back into the home.
Judges have occasionally been outspoken in their criticism of women who apply for orders and then withdraw them or collude with a breach, particularly if they later come looking for a fresh order.
“It does happen and it can be very frustrating for a practitioner as well. You work constantly to get them the protection order and then through their own actions they are back to square one.
“But I think you have to understand the mindset of people who are in those situations. It’s not easy and if you have a mother who has a number of children and the children want a relationship with their father and there is a desire for a normal life, all those things undermine the protection of themselves. It’s human nature that you hope things will work out. But the risk is that the more they go back before the same judge and don’t act on an order, the harder it is each time to re-apply.”
On a positive note, the legislation itself has come a long way in recognising the realities of Irish life, including cohabiting partners, civil partnerships, partners with a child who no longer live together or never lived together, and same-sex relationships as well as situations where the abuse is perpetrated by an adult child on a parent or other relative they’re living with.
“I’m practising about 20 years, but I remember a time when unmarried people had to apply to the Circuit Court for an injunction against an abusive partner because there was no other way. There has been huge progress made in ensuring that just about everyone comes under protection.”
That includes men who are the sometimes overlooked victims of domestic violence. “I have made applications for men — it’s more common than you think. Men can suffer horrendous abuse but they are really reluctant to something about it.”
Further reforms are promised by Justice Minister Alan Shatter, including expanded legislation and the setting up of a separate family law court structure.
The latter would require a referendum, loosely scheduled for this autumn, and while details are scant, a seminar to be hosted by the Department of Justice in July will examine models of family law courts in other countries and may provide a clearer indication of what’s in store here.
Burke, meanwhile, is keen to see how last year’s children’s referendum will influence any reforms. She founded the charitable Guardian Children’s Project in 2010 to provide support services to children experiencing parental separation or bereavement and says the impact on children should be considered in any decision by the courts.
“My view is that in family law, you have to look at the whole family. A court order can be a blunt instrument — it might provide short-term protection but you have to consider the long-term wellbeing of all the family members and, in particular, the children.”
