The Domestic Violence Act 2018 has come into force this month, and serves to strengthen existing protections and create new protections for victims of domestic abuse.
The protections under the act apply equally to men and women, and apply regardless of immigration status. The only restriction is that young people under the age of eighteen are unable to apply for protective orders on their own behalf.
Domestic Violence orders can be sought from the district court by a person who is:
• a spouse or civil partner of the perpetrator;
• in an intimate relationship with the perpetrator (regardless of marital status or cohabitation);
• the parent to a child where the perpetrator is the other parent;
• the parent of an adult perpetrator;
• living with the perpetrator in a non-contractual relationship (e.g. adult siblings).
A Safety Order is a Court Order that requires the perpetrator to refrain from using or threatening violence or putting the applicant in fear. It makes that behaviour an arrestable offence, and the perpetrator may be arrested even if there has been no physical assault. If the parties do not live together, the order may direct that the respondent stay away from the applicant’s home.
A Safety Order can be flexible in that the court can make directions in relation to contact by phone or social media, and can carve out exceptions so as to allow for access to children. A Safety Order can last for five years, and will be granted where the Court decides that the safety or welfare of the applicant or their dependants requires it.
An interim version of a Safety Order is known as a Protection Order, and can be applied for by the victim without notice to the perpetrator. It performs the same function as a Safety Order, but lasts only until the Court has decided the outcome of the Safety Order Application, after hearing evidence from both parties.
A Barring Order performs the same function as the Safety Order, but additionally requires the respondent to leave and stay away from the family home. It may only be obtained by a spouse or a person who has an equal or greater interest in the family home. The Barring Order can last up to three years, and is renewable.
As the Barring Order requires the perpetrator to leave their home, the Court will only grant it where there is an immediate risk of serious harm to the applicant or their dependants.
Interim Baring Order
An Interim Barring Order is available without notice to the perpetrator, where a spouse or an applicant with an equal or greater interest in the family home makes an application to the Court. The Interim Barring Order lasts a maximum of eight days, until the Respondent is given the chance to be heard before the Court decides whether to impose the Barring Order.
Emergency Barring Order
The 2018 Act for the first time, allows unmarried victims without the required property interest to seek an Emergency Barring Order. This is an order which requires the perpetrator to leave the family home for a maximum of eight days, even if they are unmarried and the sole owner or lease-holder of the property. It is granted where there is an immediate risk of serious harm to the applicant or their dependants.
It is a criminal offence to breach any order made under the Domestic Violence Act 2018, and the Act creates new criminal offences also.
The Act criminalises forced marriage, including the sending of an Irish resident abroad for the purpose of a forced marriage. This is punishable by up to seven years imprisonment.
The Act for the first time criminalises coercive control. This is the most progressive part of the legislation, as it is the first recognition in Irish criminal law of the damage caused to a victim by psychological abuse.
Coercive control is defined as ‘knowingly and persistently controlling’ a spouse, civil partner or intimate partner, so that it has a serious effect on the victim, and a reasonable person would expect the behaviour to have a serious effect on the victim. A serious effect is defined as giving rise to a fear of violence or serious alarm or distress so as to impact the victim’s pursuit of their daily activities.
The Court will have to look at the following elements:
• Whether the control was knowingly exerted. This cannot be careless or thoughtless behaviour; the perpetrator must know that they are controlling their partner’s activity;
• Whether the control was persistent – was there a pattern? Coercive control cannot be a once-off incident;
• Whether, as a result of the control, the victim was in such fear, alarm or distress that he or she was disrupted in his or her daily activities? This might include activities such as going to work or college or caring for children;
• Whether it was reasonable for the victim to have been so impacted.
It has been suggested by opponents of the provision that nagging or arguing could result in a criminal conviction, however this is not the case as these behaviours would not reasonably give rise to a fear of violence, or serious alarm or distress. The offence of coercive control is intended to protect a victim from a pattern of severe emotional abuse that might include blackmail, threats, gaslighting, intimidation or financial abuse.
The 2018 Act also prevents an alleged perpetrator of domestic violence from cross-examining the alleged victim in Court (unless it is in the interests of justice to do so). It also allows some victims to give evidence to the Court via video link, and allows a victim to bring a friend or support worker to Court with them, despite the Court hearing being held in private.
Section 40 of the Act requires Judges to consider an intimate relationship between the victim and the aggressor as being an aggravating factor in sentencing violent crime. This means that an assault on a spouse or partner is regarded as being more serious as the same assault on a stranger. It is a recognition in law of the breach of trust caused by domestic violence.
The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us on 01 – 676 3257 for advice specific to your needs. We, at Fitzsimons Redmond, are happy to discuss with you any concern that you might have as to domestic violence.
By Lisa Quinn O’Flaherty, solicitor at Fitzsimons Redmond