Serve and protect
New civil court orders to protect victims of stalking and unwelcome conduct were introduced in September. Keith Walsh checks the locks
From 2 September, new measures were introduced that enable victims of stalking behaviour to seek civil orders restraining another person from certain behaviour by making application to the District Court on a civil basis.
The grounds for the civil orders mirror the grounds that constitute the recently created offence of stalking contained in section 10 of the Non-Fatal Offences Against the Person Act 1997, as inserted by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023.
However, the lower standard of proof for civil orders – rather than the criminal standard – may permit earlier intervention by those affected by the behaviour.
Additional protection is provided by permitting applications for civil orders at the same time that a court is hearing applications under the Domestic Violence Act 2018, without the necessity for the institution of proceedings.
This link with the Domestic Violence Act is likely to provide greater protection to victims of domestic violence, as it broadens the remedies available to them to include civil orders.
The relevant District Court Rules came into operation on 2 September – SI 364/2024 inserted a new order 96C into the rules and created new District Court forms.
Part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023, which was commenced on 2 September, introduced civil orders against relevant conduct. As these orders are contained in section 28 of the act, they are referred to as ‘section 28 orders’.
Who can apply?
These orders can be applied for by any person, or a member of the garda on behalf of an applicant, against another person. There is no requirement for any pre-existing relationship or connection between the applicant and the respondent, unlike applications under the Domestic Violence Act 2018.
What are the grounds?
A court may make a section 28 order where it is of the opinion that:
- There are reasonable grounds for believing that the respondent has engaged in relevant conduct towards the applicant or, where relevant, a person connected to the applicant, and
- The making of the order is, in all of the circumstances, necessary for and proportionate to the purpose of protecting the safety and welfare of the applicant.
What is relevant conduct?
‘Relevant conduct’ means conduct engaged in, without lawful authority or reasonable excuse, by the respondent towards the applicant or, where relevant, a person connected to the applicant, that would reasonably be considered likely to cause the applicant:
- To fear that violence will be used against the applicant or person, or
- Serious alarm or distress that has a substantial adverse impact on his or her usual day-to-day activities.
Relevant conduct also includes, without prejudice to the generality of the points in the previous paragraph:
- Following, watching, monitoring, tracking or spying upon a person,
- Pestering a person,
- Impersonating a person,
- Communicating with or about a person,
- Purporting to act or communicate on behalf of a person,
- Disclosing to other persons private information in respect of a person,
- Interfering with the property (including pets) of a person,
- Loitering in the vicinity of a person,
- Causing, without the consent of the person, an electronic communication or information system operated by a person to function in a particular way.
The grounds and the relevant conduct to be taken into account by a judge in considering whether to grant a civil order mirror the grounds and relevant conduct to be considered by a judge in relation to the offence of stalking as set out in sections 10(2) and 10(3) of the Non-Fatal Offences Against the Person Act 1997.
Effect of a section 28 order
A section 28 order may prohibit the respondent from doing any or all of the following in respect of the applicant or, where relevant, a person connected to the applicant:
- Using or threatening to use violence against, molesting, or putting in fear the person,
- Following or communicating by any means with or about the person,
- Approaching, within such distance as the court shall specify, the place of residence, education, or employment of the person,
- Engaging in such other forms of relevant conduct as the court specifies.
The order may be subject to such exceptions and conditions as the court specifies. A section 28 order may last for a period of up to five years.
Ex parte applications
An ex parte application for a section 28 order can be made, provided it is grounded on an affidavit or information sworn by the applicant.
The grounds for making a civil order on an ex parte application are where the court, “having regard to the particular circumstances of the case, is of the opinion that there are reasonable grounds for believing that there is an immediate risk to the safety and welfare of the applicant”.
An order made ex parte may last for up to eight days or such shorter time as may be specified in the order.
Where an ex parte order is made, a note of the evidence given by the applicant must be prepared forthwith by the judge, by the applicant, or by the applicant’s solicitor and approved by the judge or as otherwise directed by the judge, and a copy of the order, the affidavit, or information sworn to ground the ex parte application and a note of the evidence must be served on the respondent as soon as practicable.
The court must also ensure that a copy of the order is given or sent to the applicant, and to the relevant member or members in charge of the garda station for the area or areas the court considers appropriate, as soon as practicable.
Interim orders
An interim order can be made on an application for a section 28 order, on notice to the respondent or at any time between the making of that application and its determination, “where it is of the opinion that it is necessary and proportionate to do so for the purpose of protecting the safety and welfare of the applicant”.
The interim order ceases to have effect on the determination by the court of the substantive application for a section 28 order. Where an interim order is made, the court must ensure that a copy of the order is given or sent to the applicant, to the respondent, and to the relevant member or members in charge of the garda station for the area or areas the court considers appropriate.
The order must be given or sent by the court “as soon as practicable”.
While section 28(16) states that the validity of the interim order will not be affected by non-compliance with the requirements for service of the order, this will depend on the circumstances of the case, and any non-compliance with notification of the respondent with a copy of the interim order (or any order made under section 28), where the respondent was not aware of the making of the order, is likely to cause significant difficulties (see DPP v RK).
In this case, Simmons J held that “it is an essential proof in a prosecution for an alleged breach of a barring order to establish that the accused person had been given notification of the making of the barring order.
It would not be sufficient that the accused person had been merely given notification of the fact that a barring order has been made, rather he or she must have been furnished with a copy of the barring order.
The only exception to this is where the accused person had been present at a sitting of the court at which the barring order was made.”
Section 34(1) states that “a relevant order shall take effect on notification of the making of the order concerned being given to the respondent”.
Procedural elements
The procedural elements of civil orders made under the 2023 act appear to be based on similar measures contained in the Domestic Violence Act 2018.
The 2023 act contains similar provisions to the 2018 act in relation to variation or discharge of civil orders (s29), protection against cross-examination by applicant or respondent (s32), requirement for the court to give reasons for certain decisions (s33), taking effect of civil orders and requirements for copies of orders to be given to certain persons (s35), exercise of jurisdiction being District or Circuit Court (s36), hearing of proceedings to be in camera (s37), provision for special sittings of the District Court (s38), evidence to be permitted through television link for civil proceedings in certain circumstances (s39), and the right to be accompanied in certain circumstances (s40).
Breach
It is a criminal offence to breach a section 28 order, carrying a penalty, on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months.
The powers of arrest without warrant that are granted to a member of the Garda Síochána (where they have reasonable cause for believing that an offence is being or has been committed and following a complaint being made to them for or on behalf of the applicant) are also similar to those provided for under section 35 the Domestic Violence Act.
The prohibition on publication or broadcast of certain material relating to the offence, as well as the penalties for such a breach, are set out in section 46 of the Criminal Justice (Miscellaneous Provisions) Act and are also similar to the prohibitions and penalties contained in sections 36 and 37 of the Domestic Violence Act.
Hearing of applications
Section 15 of the Domestic Violence Act currently permits the court, when hearing an application under that act, to hear related matters – namely, applications under section 11 of the Guardianship of Infants Act 1964; sections 5, 5A, 5B, 6, 7 or 21A of the Family Law (Maintenance of Spouses and Children) Act 1976; sections 5 or 9 of the Family Home Protection Act 1976; the Child Care Act 1991; or sections 30, 34 or 45 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 – without the necessity for institution of proceedings.
To this list of related matters are now added applications under part 5 of the Criminal Justice (Miscellaneous Provisions) Act 2023 – applications for a section 28 order. This provides further additional civil law options for victims of domestic violence and offers more opportunities for section 28 orders to be made.
Section 82(a) of the 2023 act amends section 15(2) of the Domestic Violence Act 1996 by permitting the court, where an application is made to it for an order under the Domestic Violence Act 2018, to make an order under part 5 of the 2023 act without the institution of proceedings under that act.
This greatly increases the discretion of the District Court judge dealing with an application for an order under the Domestic Violence Act 2018 to make a section 28 order where appropriate.
Additional protection
The introduction of these new orders will afford additional protection to those suffering unwanted behaviour. They will provide greater protection for victims of domestic violence, as they complement the orders that can be made under the Domestic Violence Act 2018.
However, it must be acknowledged that the creation of additional remedies will place an additional burden on an already overworked and under-resourced court, and it is essential, if other cases are not to be displaced, that the judicial and staff resources promised in the Judicial Planning Review Group Report are introduced.
Keith Walsh SC is a family law solicitor practising in Dublin and author with Sonya Dixon BL of Domestic Violence: Law and Practice in Ireland (Bloomsbury, 2024).
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Keith Walsh
Family Law practitioner
Keith Walsh SC is a Council member of the Law Society of Ireland and member of the Family and Child Law Committee.