The Gazette 1979

GAZETTE

SEPTEMBER 1979

The Domestic Violence Jurisdiction

of the District Court and the

Magistrates

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

of the 1978 Act abolished the separation

order and substituted instead the concepts of the personal

protection order and exclusion order.

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)

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.

This is consistent with the general policy of the

Act and of other recent legislation directed at removing

legal differences based on sex.

Second, where the safety or welfare of a child requires

it a spouse may apply to the court under the section.

Thirdly, "[elither spouse may apply at any time to the

Court that made it for the discharge of the order under

this section . . . ."

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.

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]

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 . . . ."

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.

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.

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 . . ,

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.

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".

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