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Current Legislation: the Domestic Violence Act 2018
Introduction
The Domestic Violence Act 2018 superseded the Domestic Violence Act 1996 and the Domestic Violence (Amendment) Act 2002 and brought in significant changes in this domain, such as guidelines, extension eligibility for orders and intimate relationships being considered an aggravating circumstance in sentencing. A new offence of Coercive Control of a spouse, civil partner or intimate partner also came into force with the 2018 Act.
Coercive Control is a pattern of intimidation, humiliation and controlling behaviour that causes fear of violence or serious distress that has a substantial impact on the victim’s day-to-day activities.
Who can apply for a Domestic Violence Order?
All partners in an intimate relationship are eligible for Safety and Protection orders, with no need of cohabitation – this was a new development with the 2018 Act. The relationship
only needs to be ‘intimate’ (and not also ‘committed’ as previously) and does not cease to be an ‘intimate relationship’ for the purposes of this Act for the sole reason that it is no longer sexual in nature.
Domestic Violence Orders
There are four main orders, which are outlined and described below. They will apply differently according to the needs of the person applying for an order.
What is a protection order?
Between the time of making an application for a safety order (or barring order) and the court’s determination (decision), there may be reasonable grounds for believing that the safety and welfare of a person or of a dependent person is at risk. If so, the court can grant a protection order to prohibit the respondent from:
• Using or threatening to use violence • If the person is not living with you, watching or being near your home • Following or communicating with you or a dependent person.
A protection order is temporary and only effective until the court hearing for the application for a safety order (or barring order).
What is a safety order?
A safety order is an instruction from the court which stops the violent person (the respondent) from committing further violence or threats of violence. The respondent does not have to leave the home. If the person is not living with you, the safety order prohibits (bans) them from watching or being near your home and following or communicating (including electronically) with you or a dependent person such as a child. A safety order can last up to five years.
From 1 January 2019, people in an intimate relationship are also able to apply for a safety order. Previously, couples had to cohabit (live together) to be able to obtain a safety order, but this is no longer the case. The following people can apply for a protection or safety order:
• Spouses and civil partners • Parents with a child in common • Partners in an intimate relationship including cohabitants (a couple living together) and dating partners (a couple not living together) • Parents of an abusive child if that child is over 18 • People residing with the respondent in a non-contractual relationship, such as two relatives living together
Former partners are also able to apply; for example, a former spouse or cohabitant.
What is a barring order?
A barring order requires the violent person to leave the home and prohibits (bans) the person from entering the home. The order also prohibits the person from
• Further violence or threats of violence • Watching or being near your home, or • Following or communicating (including electronically) with you or a dependent person.
A barring order can last up to three years. The following people can apply for a barring order: • Spouses and civil partners • Cohabitants who live in an intimate relationship (the applicant must satisfy the property test, that is, they must have an equal or greater interest in the property than the respondent) • Parents when the abuser is a non-dependent child who is an adult
What is an interim barring order?
Between the time of making an application for a barring order and the court’s determination (decision), there may be reasonable grounds for believing that your safety and welfare or that of a dependent person is at risk. If so, the court can grant a protection order (see above) or an interim barring order. An interim barring order is an immediate order. It requires the violent person to leave the home where there is an immediate risk of significant harm to you or a dependent person and a protection order would not give sufficient protection.
What is an emergency barring order?
The Domestic Violence Act 2018 provides for a new order called an emergency barring order. This requires the violent person to leave the home and prohibits the person from entering the home. An emergency barring order is an immediate order where there are reasonable grounds to believe there is an immediate risk of significant harm to you or a dependent person. Unlike an interim barring order, the applicant does not have to satisfy the property test to be able to get an emergency barring order. This means the applicant does not need to own, co-own or have their name on the lease of the property. An emergency barring order can last for a maximum of eight working days. It prohibits the same behaviours as a barring order.
Key Points
For all orders, the court can also now include a prohibition on following or communicating (including by electronic means) with the applicant or the dependent person /child.
When granting barring, safety or emergency barring orders, the court can now also recommend that the respondent engages in a perpetrator programme, an addiction service, counselling or a financial planning programme. The court may consider the engagement of the perpetrator with such services and any outcomes when renewing, dismissing or varying an order. In such cases, the court will have to consider the views of the applicant.
Domestic violence orders remain in force in respect of children after they reach the age of 18, until the orders expire. (Previously, they expired when the child reached 18 years old.)
Breaches of Court Orders
Penalties for breaches are a class B fine and/or 12 months’ imprisonment. Breaches will also now be heard in camera, with restrictions on media reporting in order to maintain anonymity.
Factors the court shall consider when deciding to grant or refuse a Domestic Violence court order
The 2018 Act introduces factors that the court shall consider when deciding on an application for an order under the Domestic Violence Act. The factors are as follows:
• history of violence by the respondent towards the applicant or any dependent person (i.e. child) • any conviction of the respondent for an offence under the Criminal Justice (Theft and
Fraud Offences) Act 2001 that involves loss to the applicant or child • any conviction of the respondent for an offence that involves violence or the threat of violence to any person • increase in severity or frequency of violence towards the applicant or their children • exposure of children to violence inflicted by the respondent on the applicant or other child • previous order under this Act or the DV Act 1996 made against the respondent with regard to any person • history of animal cruelty • any destruction or damage to the personal property of the applicant, the respondent or a dependent person, or to any place where the applicant or a dependent person resides • any action of the respondent, not being a criminal offence, which puts the applicant or a dependent person in fear for his or her own safety or welfare • any recent separation between the applicant and the respondent • substance abuse (including alcohol) by the respondent, the applicant or a dependent person • access to weapons by the respondent, the applicant or a dependent person • the applicant’s perception of the risk to his or her own safety or welfare • the age and state of health (including pregnancy) of the applicant or any dependent person • any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or a dependent person which is caused directly by fear of the behaviour of the respondent • whether the applicant is economically dependent on the respondent • if the respondent has engaged in perpetrator programmes, addiction services, counselling or financial planning services. (Note that this factor relates mostly to variation, appeals or renewal of orders. The court must seek the views of the applicant on whether engaging with such services has changed the behaviour of the respondent.) • any other relevant matter
Key Points
Note: This is not an exhaustive list, meaning the court can take into consideration anything else they deem relevant.
The court will also have to give reasons as to why they grant or refuse an order.
If the court is satisfied that the threshold for making an order has been reached, (that is, if the safety and welfare of the applicant requires it), it shall make an order.
Children’s views on orders sought on their behalf
Children will be able to make their views known to the court where a safety or barring order is sought on behalf of, or will partly relate to, a child. The court will have the option of appointing an expert to assist the court to ascertain the views of the child.
Divisional Protective Services Units
The establishment of Divisional Protective Services Units (DPSUs) is one of the actions outlined in the Second National Strategy on Domestic, Sexual and Gender-based Violence and is designed to deliver a consistent and professional approach to the investigation of specialised crime types, including Sexual Crime, Child Abuse and Domestic Abuse. In Louth and Meath, where these divisions have been set up, they are overseen by an Inspector and are led by a Garda Sergeant with a team of officers in each county. Cases are referred to the DPSU from the main stations in each county. DPSUs are comprised of detectives appointed to investigate all allegations of Sexual Abuse (current or historical), Domestic Abuse involving Coercive Control and /or serious assault, and Child Sexual Abuse.
10 Women’s Aid Brief on the new Domestic Violence Act 11 www.citizensinformation.ie 12 FLAC briefing on the New Domestic Violence Act 13 www.gov.ie 14 www.garda.ie
