Irish Times, 10/10/2002

Supreme Court declares interim barring orders unconstitutional
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 legislature's 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.