Analysis: The flaws in this family law provision have long been apparent, writes Carol Coulter, Legal Affairs Correspondent
Few provisions in family law have been as controversial as interim barring orders. Lobbyists for men's rights have argued that they infringe the rights of those accused of domestic violence, and tilt the balance in subsequent family law proceedings.
Many family lawyers concede that they are, at best, a blunt instrument to deal with a serious problem, and their flaws have been long apparent. Now the Supreme Court agrees, denouncing interim barring orders granted ex parte (without the accused party being present), and without a time limit, as unconstitutional.
These orders are part of a battery of protections available under the 1996 Domestic Violence Act. The Act was intended to protect victims of domestic violence, covering spouses, co-habitees and the parents of adult children. It provides for such victims or potential victims to seek a safety order, a protection order, an interim barring order or a barring order against an alleged attacker within the home.
Safety or protection orders require the alleged perpetrator not to assault or threaten the applicant, but do not require him or her to leave the family home.
Barring orders are granted when it is thought these measures may not be effective, and then the alleged perpetrator of the violence is ordered to leave the family home. Breach of such an order is a criminal offence, and carries a fine of £1,500, or up to 12 months in jail. Where there is thought to be an immediate threat to the person seeking protection, or dependant children, such orders can be granted on an interim and ex parte basis.
This means that the person against whom the allegations are made may not be aware of them until a member of the Garda Síochána informs him that he is the subject of a barring order. The interim order remains in force until a full barring order is sought, when the subject of the order can make his/her case. But this can take many months.
According to figures published in the "Safety and Sanctions" report from Women's Aid, 30 per cent of applications for interim barring orders are granted. However, only 20 per cent translate into full barring orders, with the majority being withdrawn before the hearing. This led some commentators to ask if the system was being abused.
As the Supreme Court judgment points out, the consequences can be grave. If the full hearing is many months away, and the barred person has to be out of the family home for this time, this can have an impact on other decisions made in family law proceedings, particularly over children. When deciding on the custody of children, judges are bound to consider their best interests, and often feel that the stability of existing family arrangements best meet them. If the father has spent a considerable amount of time out of the home, the judge could rule that the mother has custody, in the interest of stability.
This gap between the granting of the interim order and the full hearing has been highlighted by the Supreme Court as the major flaw in the existing legislation. It acknowledges that interim barring orders may often be necessary to protect vulnerable members of a family. But it insists that the person against whom the allegations are made should have an early opportunity to rebut them, and that there should be protections of his (or her) constitutional rights built into the legislation.
These criticisms are likely to be addressed when the Minister for Justice, Mr McDowell, and the Attorney General, Mr Rory Brady, study the judgment and prepare amendments.
In addition, Mr Geoffrey Shannon, chairman of the family law committee of the Law Society, points out that the existing legislation also breaches Article 6 of the European Convention on Human Rights, in that the accused does not have the automatic right to see the sworn evidence on which the application for an interim order is based.