The Irish Examiner

October 10, 2002

Supreme Court declares interim barring orders unconstitutional

Carol Coulter
Irish Examiner

THE Supreme Court has unanimously ruled that procedures which allow a spouse to get an interim barring order in the District Court are unconstitutional because of the absence of time limits on the operation of such orders.

One thousand and seven interim barring orders were issued last year by the District Court.

Delivering the judgment of the five-judge court, the Chief Justice, Mr Justice Keane, said the legislature¹s failure to impose any time limits on orders with such "draconian consequences" was "inexplicable".

The procedures deprived a person against whom such an order is made from the protection of the principle of a right to be heard in his or her own defence, the court noted.

The consequences of the decision could be a ban on the making of such temporary orders until the procedures set out in subsections 1,3 and 4 of the the Domestic Violence Act 1996 are amended.

The court decided it was not the fact that the District Court had jurisdiction to grant interim barring orders on an ex parte basis which created a serious constitutional difficulty. It was understandable the courts had jurisdiction to grant injunctions where spouses and children were at risk of violence. Rather, the difficulty lay in the manner in which the legislation provided for the granting of such orders, specifically the absence of any time limits.

The court found the person against whom the order is made is deprived of one of the two central maxims of natural justice ‹ the right to be heard in proceedings which may have "profoundly serious consequences" for them in their personal and family life.

The Chief Justice was giving judgment on an appeal arising from District Court proceedings by a Dublin man who argued he had been deprived of his right to be present in court to hear information sworn by his wife. She claimed he had a drink problem, had hit her and pulled her around by the hair and that the children had witnessed that.

He said he was distressed by these claims, which were "largely untrue" and claimed he was deprived of his right to confront or cross-examine his wife and that the court had failed to vindicate his good name.

The man failed in his High Court challenge to the District Court order and he appealed to the Supreme Court.

Mr Justice Keane said the interim barring order was mandatory in its effect and brought in its wake draconian consequences wholly foreign to the concept of the injunction as traditionally understood.

In the case of an interim barring order obtained by one spouse without notice to the other, the absent spouse automatically committed a criminal offence in failing to comply with the order, even if it transpired the order should never have been granted. They were liable to be arrested without warrant by a garda having "a reasonable suspicion" that he or she was in breach of the order.

It must also be borne in mind that an interim barring order will typically be granted in a case where relationships have effectively broken down, he said. The granting of the interim order in the absence of one spouse might in such cases crucially tilt the balance of the entire litigation against them to an extent which may be difficult to redress.

In particular, any order ultimately made by the court dealing with custody of children might necessarily be affected by the absence of one spouse from the family home for a relatively significant period as a result of the barring order.

Mr Justice Keane said the interim barring order could continue in effect until a decision by the court for a final barring order. The interim order once granted ex parte took effect immediately the person against whom the order was made had been notified.

© 2001 ireland.com


Press Release from Amen

http://www.amen.ie/

Amen, Ireland's largest men's support group, welcomes the Supreme Court decision declaring the Interim Barring Order provision of the Domestic Violence Act, 1996 to be unconstitutional. This judgement vindicates Amen's consistent position on interim barring orders, which was communicated to the Minister for Justice three years ago. As well as being unconstitutional, interim barring orders are a serious violation of citizens' human rights and civil liberties. It is incredulous that our legislators should have allowed such a draconian piece of legislation to be put on the Statute Books without any checks or balances or safeguards against abuse.

Amen is aware from our work in supporting men that that the interim barring order provision has been widely abused. When introducing the Domestic Violence Bill to the Oireachtas the then Minister for Equality and Law Reform, Mr. Mervyn Taylor TD, described this measure as 'draconian'. In the circumstances one must ask how such a 'draconian measure' was enacted almost without question by our elected legislators. One of the few TDs who seemed to have some grasp of the seriousness of this 'draconian measure' was current Minister of State for Equality, Mr. Willie O' Dea TD. He referred to the fact that legislation on such a narrow area can often lead to an imbalance in the law and stated that "Ša cursory glance suggests that there are serious defects".

In June 1999 the Law Society issued a report on the Domestc Violence Act, 1996 which drew attention to many of the flaws in it, including those referred to in the Supreme Court judgement. Amen subsequently did a commentary on the Law Society's report and also referred to these and other flaws particularly from the perspective of men who have availed of our services. Both documents have been in the possession of the Minister for Justice for the past three years. One of the reasons why we have such bad and unbalanced law in this case is that only one side have been allowed an input to the formulation of family laws and policies. Men's organisations and men's experiences were excluded. In the formulation of policy or legislation on domestic violence or any other family or social issue it is imperative that, in future, men's representatives and men's organisations be involved on an equal basis with women's representatives and women's organisations.

Amen would not claim to be particularly perspicacious in identifing the flawed nature of the interim barring order provision. This would be obvious to anybody with even the most superficial understanding of the concepts of justice and civil liberties. This was alluded to by Judge Gerard Haughton at a conference on human rights in February 2001when he stated that he was "...personally amazed that there has been neither challengeŠor any judicial review of the granting of interim barring ordersŠ"

This is a landmark decision which will prevent the unjust eviction of many men from their home. There are many other flaws in this Act and we can can contribute to a solution if those who control and monopolise the discourse are prepared to allow others to participate and articulate their experiences, as would happen in a true democracy.

Mary T Cleary
National Co-ordinator
Amen.
Phone No. 046-23718; 087-2888277
www.amen.ie.


THE SUPREME COURT

Keane C.J.
Denham J.
Murphy J.
Murray J.
Hardiman J.
220/00

BETWEEN:

DAVID KEATING
Applicant

and

JUDGE TIMOTHY CROWLEY, IRELAND
AND THE ATTORNEY GENERAL
Respondents

And By Order

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party And By Order

LORRANE KEATING
Notice Party

JUDGMENT of the Court delivered the 9th day of October 2002 bv Keane C.J9

Introduction

On the 3rd February 1999, the applicant was given leave by the High Court to apply by way of judicial review for inter alia a declaration that subsections (1), (2), and (3) of the Domestic Violence Act, 1996 (hereafter Œthe 1996 Act¹) were invalid insofar and to the extent that they were repugnant to the provisions of the Constitution and, in particular, Article 38.1,40.3, 41.1 and 50.1.

The proceedings arose out of the granting by the first named respondent on the 6th November, 1998 of an interim barring order pursuant to the 1996 Act on the application ex parte of the applicant¹s wife who is the second notice party in these proceedings. In addition to the declarations claiming that the provisions in question of the 1996 Act were unconstitutional, the applicant was given leave to apply for judicial review by way of certiorari in respect of the interim barring order.

A statement of opposition having been filed on behalf of the respondents, a notice of motion seeking the reliefs in question came on for hearing before Kelly J. In an ex tempore judgment delivered on the 2nd June, 2000, the learned High Court judge refused to grant the reliefs sought. According to the note of his ruling, approved of by him, he did so on the basis that, although the applicant applied to the District Court, within three days of its having been made, for an order discharging the interim barring order, he did not proceed with that application on the date fixed for hearing it, i.e. 23rd November, 1998. In those circumstances, the learned High Court judge concluded that the application was without merit and he accordingly refused to grant the reliefs sought. From that judgment and order, the applicant has now appealed to this court.

One of the grounds of appeal advanced was that the learned High Court judge was wrong in law in failing to find that the making of the interim barring order was ³invalid and repugnant to the provisions of Bunreacht na hEireann.² In the written submissions lodged on behalf of the applicant in this court, it is argued that s.4(l), (2) and (3) of the 1996 Act are repugnant to Articles 38(1), 40.1 and 40.3.1 and 2 and Article 4l.1.1 and 2.

In their written submissions, it was argued on behalf of the respondents that it had not been contended in the High Court that the relevant provisions were unconstitutional but rather that the applicant was entitled to certiorari on the grounds that the first named respondent had acted ultra vires in granting the interim barring order. It was also submitted that the notice of appeal did not, in terms, advance as ground of appeal the suggested unconstitutionality of the relevant provisions. It was submitted that, in accordance with the decision of this court in Attorney General (SPUC) ‹v- Open Door Counselling Limited (No 2) [1994] 2 IR 333, the court should not, other than in the most exceptional circumstances dictated by the necessity of justice, consider an issue of constitutional law which had not been fully argued and decided in the High Court. This ground for resisting the appeal by the applicant was also relied on by Mr Dermot McGuinness S.C. on behalf of the respondents at the outset of the oral hearing of the appeal.

In the note of his judgment in the High Court which was approved by him, the learned High Court judge says ³The applicant alleges that s. 4(1), (2) and (3) of [the 1996 Act] is unconstitutional. In fact, the whole thrust of the applicant¹s case was directed to s.4(3).²

Again, at p.6 of the note of his judgment, the following appears ³For the applicant, it was alleged that s.4(3) is offensive to the Constitution, constitutes an infringement of the applicant¹s right to cross-examine or confront a complainant, offends the audi alteram partem principle, constitutes an infringement of the applicant Œ5 right as a human person to be held equal before the law, and invidiously discriminate against the applicant in the conduct of his defence.

It is clear that by its very definition an interim barring order can only exist for a limited period of time. There is no time limit mentioned either in the section or in the Act. In the order made by the District Court on the 6¹ November 1998 the return date given for the full hearing was not until the 3rd February, 1999, a period of almost three months. The applicant would in my view be on good ground in suggesting that the subsection was constitutionally offensive if an ex parte order with such serious consequences were to remain in place for a period of three months.

However, that is not the full picture.²

The learned High Court judge then went on to consider the consequences for the applicant¹s claim of the fact that, while he had applied for the interim barring order to be discharged, he never proceeded with that application.

It is, accordingly, clear from the judgment that the question as to whether s.4(l), (2) and (3) of the 1996 Act, or any part thereof, are invalid having regard to the provisions of the Constitution was in fact the subject of arguments in the High Court. Nor can there be any question as to the locus standi of the applicant to advance such an argument.

The court is also satisfied that the notice of appeal made it clear that the applicant would be seeking to reverse the order of the High Court insofar as it declined to grant a declaration that the provisions in question were unconstitutional.

It was not suggested on behalf of the respondents in this court that, in the event of this court being satisfied that the issue of constitutionality had been argued in the High Court, the finding by the High Court judge that he was not entitled to the reliefs sought solely on the ground that his claim was, in the view of the High Court judge and for the reasons given by him, without merit could be supported. The court is satisfied in these circumstances that it should proceed to consider the issue as to the constitutionality of the relevant provisions, which was the only ground of appeal relied on in this court.

The Factual Background

The applicant was married to the second notice party on the 31st May, 1991. There is one child of the marriage, a girl aged six years. The wife also has a son from a previous relationship who was adopted by the applicant.

In the information sworn by her on the 6th November, 1998 which grounded her application for the interim barring order, the wife said

³For about the last year and a half my husband has been physically and verbally abusive to me. He has a drink problem. He has hit me and pulled me around by the hair. He has smashed ornaments and articles. The children have witnessed this. Last night he came home drunk. I went down to my friend. The kids were with him. He did not like this and began shouting at me, the children and the neighbours. I called the gardaí. He wouldnŒt give me my children. I had to stay in my friends.

This morning the lock was changed and he was gone with the children.

Similar occurrences happen on a weekly basis. I am under stress and in fear and am seeking an interim barring order.²

In his affidavit grounding the application for leave, the applicant deposed that he was most distressed at the contents of¹ the information which, he said, were ³largely untrue². He also said that, he had been Œforced by events in the early hours of the 6th November, 1998² to leave and take his children with him to his brother¹s house. He said that he subsequently brought his children back to his wife who returned with them to the family home on or about the 10th November, 1998 and that she also asked him to return home to care for the children on the 11th November, 1998. He said that he returned to the family home ³on congenial terms² on the 15th November, 1998 at which stage his wife and the children were out. He said that when his wife returned, she ³verbally and physically abused me² at about 1.30 a.m. and, on leaving the family home, he was then arrested by a garda and charged with an offence of being in breach of the interim barring order.

In a supplemental affidavit, the applicant said that, on the 9th November, 1998, ³on the advice of a friend² he had applied to the District Court for the discharge of the barring order. He said that subsequently, on the 23rd November, 1998, after taking legal advice he agreed to postpone the application to discharge the interim barring order until the 3rd March, 1999, the date fixed for the hearing on the 6th November, 1998. This would appear to be an error, since the interim barring order itself is stated to be effective until the 3rd February, 1999.

Submissions of the Parties

On behalf of the appellant, Mr O¹Kennedy, S.C. submitted that s.4(1), (2) and (3) of the 1996 Act deprived the applicant of natural justice and of his constitutional right to equal treatment before the law and to fair procedures.

The applicant was deprived of his right to be present in court to hear the allegations made against him and of his right to confront or cross-examine the second named notice party on the accusations made against him in her sworn information. The court, in operating the provisions of the 1996 Act, had also failed to protect and vindicate his good name contrary to the provisions of the Article 41(1) of the Constitution. Mr O¹Kennedy further submitted that the proceedings in question were civil in character and, accordingly, the burden of proof on a person seeking a barring order was to satisfy the court simply on the balance of probabilities that the making of an order was justified. The effect of the 1996 Act was, accordingly, to enable a person who made an allegation that there was ³an immediate risk of significant harm² to him or her or any dependant person to a hearing in the absence of the person against whom the allegations were made, thus depriving the latter, the applicant in this case, of fair procedures and the rights and protections afforded by the criminal law. This was so, although the consequences of a breach of an interim barring order were significantly more draconian than those which resulted from a breach of civil orders generally, involving as they did a sentence of twelve months imprisonment and/or a fine of £1,500.

Mr O¹Kennedy said that, while it was conceded that the court would seek to construe the Act, if it were possible to do so, in accordance with the Constitution, it is not possible so to interpret s.4(1), (2) and (3) of the 1996 Act. The Act expressly permits a form of procedure, i.e. an application ex parte for an interim barring order, which had the effect of removing the applicant against his will from the family home and the society of his child in proceedings where he was not heard and had no opportunity of protecting his rights. He submitted that the guarantee of fair procedures under the Constitution was not confined to proceedings which were criminal in nature and extended beyond the traditional canons of natural justice, citing Re: Haughey [1971] I.R. 217.

Mr O¹Kennedy urged that it was a notable feature of the procedures prescribed by the Act that an interim barring order could last for an unspecified period of time. He pointed out that this was in contrast to the provisions of the Child Care Act, 1991, replicating the equivalent provisions of the Children Act, 1908, under which a ³fit person² order depriving a parent of the custody of a child could not last for more than eight days.

Mr O¹Kennedy submitted that the fact that the applicant could apply to the District Court for an order discharging or varying the interim barring order and would, in any event, be entitled to a substantive hearing of the application for a barring order in due course did not in any way cure the serious constitutional defects in the procedures provided for obtaining an ex parte interim order. Unlike the normal form of injunction granted in civil proceedings, the interim barring order was mandatory in effect, deprived the applicant without any hearing of his constitutional right to occupy the family home and rendered him guilty of a criminal offence in the event of his not complying with the order. The legislation placed the applicant in the position of having to persuade the District Court that the original interim order should never have been granted; the Act clearly placed the burden on him to satisfy the court that this was so.

On behalf of the respondents, Mr McGuinness submitted that the provisions contained in the 1996 Act for the making of barring orders constituted an essential protection for victims or potential victims of domestic violence and spousal and/or parental abuse. He said that it constituted a necessary and reasonable legislative response to an accepted and pressing social need. An interim barring order could only be made ex parte in exceptional cases where the court considered it necessary and expedient in the interests of justice and where there was an immediate risk of significant harm to the applicant or dependants of the applicant.

Mr McGuinness submitted that the 1976 Act enjoyed not merely the presumption of constitutionality but also the consequential presumption, identified in the judgment of this court in East Donegal Co-Operative Limited -V- the Attorney General [1 970J I.R. 317, that the Oireachtas intended that any procedures permitted or prescribed by an Act of the Oireachtas would be conducted in accordance with the principles of constitutional justice. He said that, while it was accepted that the remedy of a barring order was one with serious and far-reaching consequences for the person against whom it was made, the provisions of the 1996 Act were designed to ensure substantive and procedural fairness for those against whom such an application was made. In particular, the purpose of s.4 was to ensure that the safety and welfare of an applicant spouse and/or children was protected in the period between the issuing of the summons for a barring order and its final determination. The pre-conditions which had to be met before an interim barring order could be made were so restrictive as to constitute a fair and just balance between the rights of the person whose safety or welfare was being protected and the person against whom the order was sought to be made.

Mr McGuinness urged that it was legitimate to depart from established principles of natural justice, including audi alteram partem, where there was an immediate risk of significant harm. There were well established procedures under our law enabling court orders to be made either of a restrictive or a mandatory nature without the persons affected having been afforded an opportunity to be heard. The procedures under the 1996 Act for the granting of interim barring orders on an ex parte basis reflected the procedures established by Order 52 Rule 3 of the Rules of the Superior Courts for the granting of injunctions on an ex parte application. He cited in this connection, the decisions of this court in O¹Callaghan -v- Commissioners of Public Works [1985] ILRM 364, The State (Lynch) -v- Cooney [1982] I.R. 337, Irish Family Planning Association -v- Rvan [1979] I.R. 295 and Murphy -v- M(G), (unreported), judgment delivered 18th October, 2001.

Mr McGuinness further submitted that the constitutional right of the applicant¹s wife and children had to be considered when the constitutional validity of s.4 of the 1996 Act was in issue. The State was bound to uphold the right of the applicant¹s wife and children not to be physically endangered. The interim barring order procedure had been introduced in order to remedy a lacuna in the Family Law (Protection of Spouses and Children) Act, 1981 whereby applicant spouses and children who sought the protection provided by a barring order were left in a position where the respondent would continue to reside with them between the issuing of the summons and the hearing of the application for a barring order. The provisions, accordingly, represented a reasonable and proper balance between the constitutional right of the applicant and her dependant children not to be physically endangered and the constitutional right to fair procedures of the person against whom the order is made.

Mr McGuinness further submitted that s.4(3) did not infringe Article 40.3 of the Constitution in failing to protect and vindicate the applicant¹s good name; proceedings of this nature were held in camera and no publication of the order was made other than that necessary to ensure its enforcement by An Garda Siochána.

The Applicable Law

The 1996 Act is described in its long title as ³An Act to make provision for the protection of a spouse and any children or other dependant persons and of persons in other domestic relationships whose safety or welfare requires it because of the conduct of another person in the domestic relationship concernedŠ²

The Act enables defined categories of persons to apply for and obtain from the Circuit Court or the District Court four forms of order, i.e., a barring order, an interim barring order, a protection order and a safety order. These proceedings are concerned with barring orders and, in particular interim barring orders. Section 3(1) of the Act specifies the category of persons who may apply for and obtain such orders, i.e. a spouse of the respondent or a person who has lived with the respondent as husband or wife for a period of at least six months on aggregate during the period of nine months immediately prior to the application and a parent of the respondent if the latter is of full age and not, in relation to the parent, a ³dependant person² in the meaning of the Act.

Under s.3(2)(a) a court may make a barring order, on the application of such a person, where ³It is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or any dependant person so requires.²

Such an order may

³(i) direct the respondent if residing at a place where the applicant or that dependant person resides, to leave such place and

(ii) whether the respondent is or is not residing at a place where the applicant or that dependant person resides, prohibit the respondent from entering such place until further order of the court or until such other time as the court shall specify.²

Under subparagraph (b), the court, in deciding whether or not to grant a barring order, must have regard to the safety and welfare of any dependant person in respect of whom the respondent is a parent or in loco parentis, where the dependant person is residing at the place to which the order, if made, would relate. The barring order may, if the court thinks fit, prohibit the respondent from doing one or more of the following:

³(a) Using or threatening to use violence against the applicant or any dependant persons;

(b) Molesting or putting in fear the applicant or any dependant person;

(c) Attending at or in the vicinity of or watching or besetting a place where, the applicant or any dependant person resides.²

Subsection (6) enables the court, on the application inter alia of the respondent to make an order varying a barring order. The barring order, under subsection (8), is to expire three years after the date of its making or on the expiration of such shorter period as the court may provide for in the order. A further barring order may, however, be made with effect from the expiration of the original barring order.

Section 4, the constitutionality of which is impugned in these proceedings, is as follows:

³(1) If on the making of an application for a barring order or between the making of such application and its determination, the court is of the opinion that there are reasonable grounds for believing that ‹

(a) there is an immediate risk of significant harm to the applicant or any dependant person if the order is not made immediately, and

(b) the granting of a protection order would not be sufficient to protect the applicant or any dependant person, the court may, subject to s.7 and having taken into account any order made or to be made to which paragraph (a) or (d) of subsection (2) of s.9 relates, by order (in this Act referred to as an ³interim barring order²) -( i) direct the respondent, if residing at a place where the applicant or that dependant person resides, to leave such place, and (ii) whether the respondent is or is not residing at a place where the applicant or that dependant resides, prohibit that respondent from entering such place until further order of the court or until such other time as the court shall specify.

(2) Subsections (3), (4), (5), (6), (7) and (12) of s.3 shall apply to an interim barring order as they apply to a barring order.

(3) where the court in exceptional cases considers it necessary or expedient in the interests of justice, an interim barring order may be made ex parte or notwithstanding the fact that the originating document or other notice of the application required to be duly served on the respondent to the application for an barring order has not been so served.

(4) An interim barring order shall cease to have effect on the determination by the court of the application for a barring order.

(5) Notwithstanding subsection (4), 50 much of an interim barring order as was made for the benefit of a dependant person shall cease to have effect in accordance with that subsection or upon such person ceasing to be a dependant person, whichever first occurs.²

The District Court and, on appeal, the Circuit Court has jurisdiction to make such barring orders and interim barring orders. The ³protection order² referred to in s.4(l) is one which directs the respondent to an application for a barring order not to use or threaten to use violence against, molest or put in fear the applicant or a dependant person and not to watch or beset the place where the applicant or the dependant person resides.

Section 10 provides inter alia that a barring order or an interim barring order is to take effect on notification of its making being given to the respondent. Section 17(1) provides inter alia that a respondent who contravenes a barring order or an interim barring is to be guilty of an offence and liable on summary conviction to a fine not exceeding £1,500 or, at the discretion of the court, to imprisonment for a term not exceeding twelve months or to both. Section 1 8(l)(a) empowers a member of An Garda Siochána to arrest the respondent without warrant where he has ³reasonable cause² for believing that an offence has been committed under s.17.

Section 13 provides inter alia that, where a barring order or an interim barring order has been made, the court, on the application of the respondent

³Shall discharge the order if it is of the opinion that the safety and welfare of the applicant or such dependant person for whose protection the order was made does not require that the order should continue in force.²

Some important features of these provisions should be noted. First, an interim barring order ‹ including one made ex parte in the absence of the respondent as in this case continues in effect until the determination of the application for the barring order unless, of course, it is discharged in the meantime under s.13. Secondly, an interim order, including one granted ex parte, takes effect immediately upon the respondent being notified of its having been made, renders the respondent guilty of a criminal offence if it is not complied with and enables the Gardaí to arrest him or her without warrant if a garda suspects that he or she has been guilty of such an offence. Thirdly, there is no indication of the criteria by which the District Court, in the case of an ex parte application for an interim barring order, is to decide whether it is an exceptional case in which it is necessary or expedient in the interests of justice to grant the application.

Order 59, Rule 6 of the District Court Rules provides

³(1) Where an interim barring order is made under the terms of s. 4 of the [1996 Act] on the occasion of the making of an application for a barring order, it may be made on the evidence of applicant viva voce and on oath.

(2) Where an interim barring order is made under the terms ofs.4 of the Act between the making of an application for a barring order and its determination, it shall be made on the information on oath and in writing of the applicant in Form 59.5 Schedule C.

(3) where the court in exceptional cases considers it necessary or expedient in the interests of justice, an interim barring order may be made ex parte or notwithstanding the fact that the summons referred in Rule 5 of this order has not been served.²

Order 66 Rule 5 of the Circuit Court Rules @4o. 1) (Domestic Violence Act 1996) 2000 provides that ³An application for a protection order may be made by motion on notice or by ex parte application after the institution of proceedings for a barring order or safety order and an application for an interim barring order may be made by motion on notice or by ex parte application after the institution of proceedings for a barring order and such application shall be grounded upon an affidavit to be sworn by the applicant or such other person as may be appropriate. An application for the discharge or variation of a protection order or interim barring order made pursuant to this rule shall be by motion on notice or by ex parte application and shall be grounded upon an affidavit to be sworn by the respondent or such other person as may be appropriate. Urgent applications under this rule may be made to a judge at any time or place approved by him or her by arrangement with the County Registrar. Where interim relief of any nature is granted following an ex parte application, the applicant shall forthwith cause a notice of motion to issue in respect of the reliefs which are being sought and or affirming the ex parte orders which have been made, such motion to be returnable before the court not later than eight days following the granting of the ex parte relief and to be served upon the respondent in accordance with the provisions of Rule 9 hereof unless otherwise directed by the court. Save where otherwise directed by the court, all ex parte orders obtained shall lapse upon the expiration of the eight days following the making thereof

It is noteworthy that, in contrast to the provisions in the District Court Rules, the Circuit Court Rules expressly require the applicant to issue a notice of motion returnable not later than eight days following the granting of ex parte relief seeking the same relief and provide that any ex parte orders obtained are to lapse upon the expiration of eight days following their having been made, unless the court otherwise directs. In considering whether the impugned provisions of the 1996 Act are invalid having regard to the provisions of the Constitution, the court notes at the outset that they enjoy the benefit of the presumption of constitutionality and that the onus is on the applicant to establish that they are constitutionally invalid. The court must also give effect to the principle laid down in McDonald -v- Bord na gCon (No 2) [1965] I.R. 217, that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other is unconstitutional, it is to be presumed that the Oireachtas intended only the constitutional construction.

The court must also give effect to the decision in East Donegal Co-Operative -v- Attorney General that it is to be presumed that the Oireachtas intended that any proceedings, procedures, discretions or adjudications permitted, provided for, or prescribed by any enactment would be conducted in accordance with the principles of constitutional justice and that any departure from those principles would be restrained or corrected by the courts.

The principal complaint of the applicant in these proceedings is that these provisions, even when construed in the light of the constitutional presumptions mandated by those authorities, necessarily fail to protect his rights under Article 40 of the Constitution which provides

³1. The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.²

An application for a barring order or an interim barring order is properly characterised as a civil rather than a criminal proceeding. It has none of the characteristics of a criminal proceeding identified in the judgments of the court in Melling ­V- 0 Mathghamhna and Anor [1962] I.R. 1 and in the more recent judgment of the court in Murphy -v- M (G) (unreported; judgment delivered 18th October, 2001.) Accordingly, the burden of proof on the applicant for an interim barring order is to satisfy the court on the balance of probabilities that the order should be granted. However, although the proceedings are civil in character, the respondent remains entitled to the benefit of the constitutional guarantee that he or she will be afforded fair procedures in the hearing of the proceedings in accordance with the principles laid down by this court in Re: Haughey [1971] I.R. 260.

While the Oireachtas in upholding other constitutional rights in this case the rights of spouses and dependant children to be protected against physical violence ‹ is entitled to abridge the constitutional right to due process of other persons, the extent of that abridgement must be proportionate, i.e. no more than is reasonably required in order to secure that the constitutional right in question is protected and vindicated. (See Heaney -v-Ireland [1996] 1IR 5.80.) In reaching a decision as to whether that constitutional balance has been achieved in the legislation under consideration, it is of paramount importance to bear in mind the consequences of the order made. Thus, in the present case it results in the forcible removal of the applicant from the family home and the society of his child on the basis of allegations in respect of which he has no opportunity of being heard, treats him as having committed a criminal offence resulting in a possible custodial sentence in the event of his non-compliance with the order and makes him liable to arrest by a garda without a warrant if the latter entertains a reasonable suspicion that he has failed to comply with the order.

The applicant, accordingly, is unarguably deprived of the protection of one of the two central maxims of natural justice audi alteram partem - in proceedings which may have profoundly serious consequences for him in his personal and family life. The issue in this case is not as to whether the Oireachtas was entitled to abridge, even in a relatively drastic fashion, the right of the applicant to be heard, in order to protect spouses and dependant children from domestic violence. That the legislature were entitled to effect such an abridgement of the rights of individual citizens in order to deal with the social evil of domestic violence is beyond dispute. The question for resolution in this case is as to whether the manner in which the abridgement of the right to be heard has been effected is proportionate in the sense already indicated.

Conclusion

It is understandable that the legislature, in dealing with the problem of domestic violence should have conferred on the courts the jurisdiction to grant what are effectively injunctions to protect spouses and dependant children against such violence. As has already been noted, however, there are significant differences between the statutory jurisdiction conferred on the District Court to grant barring orders and the jurisdiction traditionally enjoyed by Courts of Chancery to grant injunctions in civil cases where damages would not be an adequate remedy.

The mandatory nature of the interim barring order, even when granted on an ex parte application, is in sharp contrast to the nature of the interim or interlocutory injunctions typically granted in civil proceedings. Such injunctions are normally intended to do no more than preserve the status quo pending the determination of the parties¹