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GAZETTE
SEPTEMBER 1979
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
amending legislation for such a power.
Power to arrest for brach of S. 16 order
16
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
Penalties
Subsection (3) of section 22 provides that
"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
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
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