L -v- Ireland & Anor: High CourtJudgment delivered by Mr Justice Peter Charleton on July 11th, 2008.
Judgment
Mr Justice Charleton found section 5 of the Domestic Violence Act 1996, providing for the making of protection orders, to be constitutional, stating that it ordered a respondent to desist from behaviour that was already unlawful.
Background
The applicant was the husband in a family in which there were five children, two under 18. He described himself as a deserted husband in his application.
The two youngest children were home-schooled by the applicant and his wife until September 2006, because he had "concerns about the moral integrity of the schools".
Differences arose between the couple during the summer of 2006, centring on the issue of schooling, with the mother wishing the children to attend a State school. She indicated that she was prepared to go to court on the issue.
In August the husband visited Australia. While he was there, on August 29th, the wife sought a protection order in the local District Court, having informed him by phone and e-mail of her intention.
A protection order, which is an interim measure and can be made ex parte, can only be sought when a safety order or a barring order is being sought, on notice to the respondent.
The husband was unable to be present for the protection order application, but was in court on September 26th, when the wife made an application for a safety order. During the same hearing, the judge also ordered that the children were to continue in school. These orders were renewed subsequently and custody orders were also made.
The husband did not make his case concerning custody or access to the court, holding the view that all the proceedings following the protection order application were unfair and unconstitutional.
However, in August 2007 he expressed his views in a letter to his wife, stating: "As you have continued to fail to act as a guardian, let alone a custodian, and so that provision for their welfare is no longer neglected, it is obvious that I and only I am of the disposition to manage this manly task . . . The children should return to the family home so that they can be properly cared for, provided for, educated and protected by me."
In September the wife sought a further protection order, referring specifically to the children, which stated that the respondent "shall not use or threaten to use violence against, molest or put in fear the above-named applicant or any dependent persons, and further orders that the respondent shall not watch or beset the place where the applicant or dependent persons reside".
This application arose from her concerns that, while she was on a planned trip to the US to visit a relative who had been diagnosed with cancer and for whom she might have been a suitable bone marrow donor, her husband might abuse his existing twice-weekly access rights.
She said she was uneasy about the tone of his letters and claimed he had a history of mental illness and "unorthodox views about his role". She wished the children to stay with the older children and her mother while she was away, and not see their father.
While she was away, her husband did arrive at the family home and tried to take the younger children away, but was prevented by the older son.
The husband challenged this September 2007 protection order in a judicial review application, seeking a declaration that the relevant section of the Act was unconstitutional.
He referred extensively to a 2002 Supreme Court ruling which found section 4(3) of the Domestic Violence Act 1996, which allowed interim barring orders to be made on an ex partebasis without any specified return date, to be unconstitutional, claiming the same applied to section 5, which provides for protection orders.
In that judgment, the Chief Justice, Mr Justice Ronan Keane, stated: "The failure of the legislation to impose any time limit on the operation of an interim barring order, even when granted ex parte in the absence of the respondent . . . is inexplicable." The Oireachtas subsequently amended the Act.
Mr Justice Charleton summarised this judgment as follows: "The Supreme Court reasoned that an order constituting a serious interference with, and abridgement of, constitutional rights in consequence of a court application made in the absence of a party, should be proportional, in terms of the time it lasts and its effect, and no more than is reasonably required to secure a competing constitutional right."
Decision
Mr Justice Charleton said there were marked differences between the consequences of a court making a barring order and making a protection order.
He pointed out that section 5 of the Act, as amended, provided for orders that the respondent would not "use or threaten violence, molest or put in fear the applicant or that dependent person", that the respondent could seek to have it varied and that it ceased to have effect on the determination by the court of an application for a safety order or a barring order.
A barring order removed a person's right to reside in his or her own home, he said.
"In contrast, under a protection order, the matters which are restricted are already unlawful . . . It is never lawful to threaten to use violence against a person, unless one is oneself under attack or one is effecting a lawful arrest. It is not lawful to molest a person or make a person fear for dire consequences. There are all already criminal offences of long standing at common law."
The worst that could happen to a person under a protection order was that if he did something that was already unlawful, he ran the risk of the commission of a criminal offence with subsequent prosecution.
An application might be made on fraudulent grounds for malicious purposes, but the respondent had the remedy of seeking to have it overturned at the earliest possible date.
Applications for protection, safety and barring orders were made in private, so the making of a protection order against a respondent did not reflect on his good name, and he had the opportunity to be heard if a safety or barring order application was made. He refused the applicant all the orders he sought.
• The full text of this judgment is on www.courts.ie