Development of Ireland’s Domestic Violence Law Since the Irish Free State

DEVELOPMENT OF IRELAND’S DOMESTIC VIOLENCE LAW SINCE THE IRISH FREE STATE

Robert Foyle

Introduction

At the beginning of the Irish Free State, there was minimal state intervention in cases of domestic violence. Domestic issues were thought to be best dealt with in the home. However, since the Family Law (Maintenance of Spouses and Children) Act 1976, Ireland has continued to expand its domestic violence law, creating a robust set of protections. There are currently numerous categories of people who may apply for civil remedies and measures such as the Emergency Barring Order have been introduced.1 Further, the definition of what constitutes domestic violence has been expanded with the introduction of the offence of Coercive Control2 and perpetrator programmes have been made an option to effect long term behavioural change in abusers3. These represent a positive change which better supports victims of domestic violence in modern day Ireland.

1922-1976

The first five decades of the Irish Free State saw little protection for victims of domestic violence. Marital violence was seen as a matter to be dealt with within the family unit.4 The importance of the family was reiterated in Article 41.1.1° of the Constitution of Ireland in 1937 where the family is provided with ‘inalienable and imprescriptible rights, antecedent and superior to all positive law’. This afforded the State a limited scope to intervene in the autonomy of the family. Therefore, governmental services such as perpetrator programmes (which are designed to improve or change behaviour of abusers) were not enforced by the State. This protection of the family unit also prevented the State from enforcing civil remedies such as barring orders which remove the abuser

1 Domestic Violence Act 2018, s 9(1). 2 ibid s 39. 3 ibid s 29(1). 4 Louise Crowley, Family Law (1st edn, Round Hall 2013) chp 13.02. 47

from the home to ensure the safety of the victim.5 Thus, it was exceedingly difficult for abused wives to escape their husbands.

There was also no access to divorce facilities. Cultural, economic and social pressures prevented abused spouses from seeking marriage separation.6 Abused spouses could, in certain instances, turn to the Gardaí for short term relief and could prosecute on assault charges.7 Some reports suggest that some abused wives could attempt to have their husbands committed to mental asylums. Committal to these institutions was generally initiated by the family against other particularly violent family members.8 However, attempting to commit an abusive spouse or partner was not an effective measure at dealing with the issue of domestic violence as these asylums were not designed for domestic violence perpetrators and did not attempt to change violent behaviour. Parish priests also provided marriage counselling and the Catholic Church played an important role within the marital and family unit.9 However, cultural factors meant both priests and members of the Gardaí worked under the assumption that the marital couple should stay together.10 This lack of proper intervention in instances of domestic violence did not provide any support to domestic violence victims nor prevent further instances of abuse on a long-term basis. For unmarried cohabitating partners, practically no recourse or state intervention existed other than criminal law remedies.

1976-2018

Notwithstanding Ireland’s historical reluctance to intervene in matters within the family sphere; s22 of the Family Law (Maintenance of Spouses and Children) Act 1976 introduced the first civil remedy for victims of domestic violence; the barring order.11 The Act allowed the Court to remove the abusing spouse from the place they resided for a period of three months where there were reasonable grounds for believing that the safety or welfare of the applicant spouse required it. 12 S22 did not include non-married couples. The remedies available to abused spouses were enhanced by the Family Law

5 Louise Crowley, 'Domestic Violence Law in Ireland' (2017) 2017 Int'l Surv Fam L 145, 147. 6 Cara Diver, Marital Violence In Post-Independence Ireland, 1922-96 : ‘A Living Tomb For Women' (Manchester University Press 2019) 108. 7 ibid 117. 8 ibid 115. 9 ibid 117. 10 ibid. 11 Family Law (Maintenance of Spouses and Children) Act 1976, s 22. 12 ibid.

(Protection of Spouses and Children) Act 1981. Under s2, the duration of a barring order was extended to a maximum of 12 months.13

The 1981 Act added further safeguards such as the Protection Order. This is an order issued by the court where there are reasonable grounds for believing that the safety and welfare of the applicant spouse or child is at risk.14 It prohibits the respondent spouse from using or threatening to use violence against the applicant spouse or the child and is effective until a court hearing for the application of the barring order. Whilst these increased protections were a step forward at tackling the issue of domestic violence, it remained limited due to a high evidentiary threshold required and unmarried couples were excluded from the provisions.

The Supreme Court decision in O’B v O’B15 displayed this high evidentiary threshold imposed on the applicant spouse. The case concerned a barring order under the 1981 Act. Griffin J noted the husband’s behaviour in his dissenting judgment.16 His conduct included taking control over their finances and forbidding his wife to open or pay bills. He humiliated her in front of their young children, referring to her as a ‘lazy slut’ and exercised control over the family by refusing to allow the children or his wife to visit the grandparent. 17 The majority of the judges refused to grant the barring order with O’Higgins CJ noting that an order is only available in cases of ‘serious misconduct’.18 The court viewed domestic violence solely through the lens of physical abuse and threats of violence and failed to consider coercive or controlling behaviour as an equally serious form of domestic abuse.

The domestic violence Act 1996 made numerous additions including extending the categories of people who could apply for a barring order beyond marital spouses. A person who has lived with the respondent as husband or wife for 6 of the 12 months immediately prior to the application; a parent of the respondent where the respondent is aged 18 or over and is not dependent upon the parent and a person aged 18 or over residing with the respondent in a non-contractual relationship; could now all apply for relief.

13 Family Law (Protection of Spouses and Children) Act 1981, s 2(1)(b). 14 ibid s 3. 15 O'B v O'B [1984] IR 182. 16 ibid 195. 17 ibid. 18 ibid at 190.

2018-Present

Key changes were made to Ireland’s domestic violence law in the Domestic Violence Act 2018. S39 creates a criminal offence where a person knowingly or persistently engages in behaviour that is controlling or coercive which has a serious effect on the victim.19 The introduction of coercive control into Irish law acknowledges the developing definition of domestic abuse. As Crowley notes, the addition of the offence of coercive control is ‘regulatory shift away from the traditional and limited perception of physical abuse.’20 It provides victims of domestic violence with increased protections against many forms of domestic violence and ‘having a wide-ranging offence that encompasses the many forms of abuse is the only effective way of capturing the broad behaviour designed to destroy personal autonomy.’21

S 29(1) of the Domestic Violence Act 2018 allows the court, when granting either a barring or safety order, to direct the respondent to engage with services to address issues relating to the respondent's behaviour which may have contributed to the granting of the order.22 One of these services listed is the domestic violence perpetrator programme. Such programmes are generally designed to effect behavioural change in perpetrators in order to minimise the number of repeat offenders.23 Ireland has historically focused on a retribution rather than a rehabilitation approach to perpetrators of domestic violence.24 S 29 is a welcomed revision to this approach.

The Emergency Barring Order (EBO) was also introduced in s9 of the Act.25 This order is available to numerous categories of domestic violence victims who may not be the spouse or civil partner of the respondent but have lived with them as part of an intimate relationship. The order removes the respondent from the property for up to 8 days.26 A greater or equal beneficial interest in the property is not required to obtain this order

19 Domestic Violence Act 2018, s 39(2). 20 Crowley, 'Domestic Violence Law in Ireland' (n 5) 146. 21 Darragh Sheehy, 'Toward a New 'Measuring of Harm': A Critique of the Offence of 'Coercive Control' under the Domestic Violence Act 2018' (2019) 10 King's Student L Rev 51, 57. 22 Domestic Violence Act 2018, s 29(1). 23 Leah Hamilton, Johann A. Koehler and Friedrich A. Lösel, 'Domestic Violence Perpetrator Programs In Europe, Part I: A Survey Of Current Practice' (2012) 57 International Journal of Offender Therapy and Comparative Criminology 1090. 24 Louise Crowley, 'Domestic Violence Law in Ireland' (n 5) 164. 25 Domestic Violence Act 2018, s 9(1). 26 ibid s 9(3).

unlike previous forms of barring orders.27 The EBO has prioritised the safety of victims of domestic violence over property rights and is a recognition that domestic violence occurs outside the marital relationship. The EBO has received some academic criticism due to the high evidentiary threshold placed on the applicants.28 The court must be satisfied that 'there are reasonable grounds for believing that there is an immediate risk of significant harm to the applicant or a dependent person if the order is not made immediately.'29 The National Women’s Council also questioned the lack of effective remedies available when the courts are not sitting and urgent intervention is needed.30

Conclusion

The Domestic Violence Act 2018 is a clear modernisation of Ireland’s domestic violence law. From very few measures designed to support victims from abuse in the early and mid-20th century, Ireland now has a robust set of measures to tackle the issue. From extending the categories of those who can apply for relief to putting in place perpetrators programmes and creating the emergency barring order, Ireland’s domestic violence law now reflects the modern day intolerance of domestic violence.

27 ibid s 9(2). 28 Crowley, 'Domestic Violence Law in Ireland' (n 5) 162. 29 Domestic Violence Act 2018, s 9(3). 30 Orla O'Connor, 'NWCI Welcomes The Domestic Violence Bill, But Says It Fails To Meet The Extent Of The Problem » Latest News » The National Women's Council Of Ireland' (Nwci.ie, 2017) <https://www.nwci.ie/news/article/nwci_welcomes_the_domestic_violence_bill_but_says_it_fa ils_to_meet_the_exte> accessed 23 February 2022.