E.D. v C.K

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 16 February 2024
• Neutral Citation: [2024] IEHC 126
• Docket Number: Record No. HM 2023 158

In the Matter of the Judicial Separation and Family Law Reform Act, 1989 and in the Matter of the Family Law Act, 1995

Between:

E.D.

Applicant

and

C.K

Respondent

[2024] IEHC 126

Record No. HM 2023 158

THE HIGH COURT

FAMILY LAW

Judgment of Ms. Justice Nuala Jackson delivered on the 16 ^th February 2024 .

INTRODUCTION

1 The social evil of domestic violence has long been recognised by the legislature and the courts in Ireland. On a national level, legislation providing for specialised and focussed reliefs in this context has been on the statute books since 1976. The Supreme Court in DK v. Crowley [2002] 2 I.R. 744 called out this social evil 1 and, furthermore, recognised the Constitutional status of the rights of Applicants and children in these circumstances to be protected. 2 On an international level, Ireland ratified the Istanbul Convention on the 8 ^th March 2019, having signed this Convention on the 5 ^th November 2011. The Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence Istanbul, 11.V.2011 clearly states:

26. The drafters wished to emphasise that violence against women seriously violates and impairs or nullifies the enjoyment by women of their human rights, in particular their fundamental rights to life, security, freedom, dignity and physical and emotional integrity, and that it therefore cannot be ignored by governments. Moreover, they recognised that violence affects not only women adversely, but society as a whole and

that urgent action is therefore required. Finally, they stressed the fact that some groups of women, such as women and girls with disabilities, are often at greater risk of experiencing violence, injury, abuse, neglect or negligent treatment, maltreatment or exploitation, both within and outside the home.

27. In addition to affirming that violence against women, including domestic violence against women, is a distinctly gendered phenomenon, the signatories clearly recognise that men and boys may also be victims of domestic violence and that this violence should also be addressed. Where children are concerned, it is acknowledged that they do not need to be directly affected by the violence to be considered victims but that witnessing domestic violence is also traumatising and therefore sufficient to victimise them.

2 The Domestic Violence Act, 2018 (“the 2018 Act”), the statute under consideration in this judgment, is reflective of the State's acknowledged commitments under this Convention. Perhaps the position is most eloquently stated by Barrett J. in X v Y [2020] IEHC 525:

“A party to an intimate relationship should never have to live in the fear and/or with the actuality of domestic violence being perpetrated upon that party. There are no ‘ifs’ or ‘buts’ in this regard, no exceptions, no mitigating circumstances. Domestic violence and/or the threat of domestic violence (even where no actual violence ensues) is always unacceptable. The court has been careful to use gender-neutral language in the foregoing to make clear that its observations apply to all intimate relationships between all persons of whatever gender/sexuality.”

3 The courts have also been clear in recognising the nature of the suite of potential remedies, in particular the indicia of barring orders, available to a court dealing with domestic violence issues. This was considered by the Supreme Court in O'B v. O'B [1984] I.R. 182 and in DK v. Crowley (above) and by the Court of Appeal in NK v. SK [2017] IECA 1. In O'B, O'Higgins CJ referenced the potential outcomes from a breach of a barring order:

“Once a barring order is made the barred spouse commits an offense and may be imprisoned for six months if he or she contravenes its terms.”

Based on these outcomes, the Chief Justice concluded:

“These consequences indicate that the making of such an order requires serious misconduct on the part of the offending spouse – something wilful and avoidable which causes, or is likely to cause, hurt or harm, not as a single occurrence but as something which is continuing or repetitive in its nature.”

McCarthy J. also referenced the seriousness of the relief involved:

“… the gravity of the circumstances warranting the making o f a Barring Order are borne out by ss. 5, 6 and 7; the Gardai must be notified “as soon as practicable” of the making of the Order; a spouse who contravene the Order is liable to a term of imprisonment; and, perhaps most critically important, such spouse is liable to arrest without warrant when there is reasonable cause for believing that such spouse is committing an offence under section 6. The breadth of these provisions, bringing within the range of the criminal law with all its dire consequence what might well be innocent or, at least, trivial acts or omissions, emphasize in the most positive way the gravity of the circumstances necessary to warrant the making of a Barring Order.”

4 It must, of course, be remembered that many of these consequences attach to a safety order also. Indeed, the primary difference between these two reliefs is that one removes the Respondent from a particular place, usually a place of residence or family home, or directs staying away from such place. While the DK case involved an interim barring order, granted on an ex parte basis, there are dicta therein relating to the very serious nature of the relief involved. Keane CJ referenced the constitutional rights which are engaged, with regard, in particular, to the right to fair procedures in the context of an ex parte order. Of more general import, however, he stated:

“While the Oireachtas in upholding other constitutional rights – in this case the rights of spouses and dependent child to be protected against physical violence 3 – 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] 1 I.R. 580). 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.”

5 In this regard and in considering the balancing of the respective rights of the parties, I have found of particular assistance the judgment of Hogan J. in N.K. v. S.K. [2017] IECA 1. The issue under consideration was whether an order directing a person to leave a particular residential premises could be made pursuant to section 11 of the Guardianship of Infants Act, 1964 as amended on the basis that such an order was mandated by the welfare needs of the children. 4 Relief pursuant to the Domestic Violence legislation was not being pursued. However, the result sought to be achieved in the context of the 1964 legislation would

arguably be similar insofar as it would result in the removal of a person from the premises concerned. 5 The court made a careful analysis of the nature of barring order reliefs:

64. Over and above these considerations, the removal by court order of a person from their existing place of abode is always a serious matter, often with far reaching implications for the individual concerned. In a family law context there are, of course, regrettably many circumstances where such a step is necessary, inevitable and constitutionally justifiable, not least to protect the personal safety and integrity of the other spouse and children. But a mandatory exclusion order from a property owned or partly owned by a spouse is a matter of profound significance and clearly engages the constitutional rights of the party affected.

65. Even though the exclusion order will have been made in camera proceedings, the very fact that the party excluded is compelled to move house – sometimes, as here, at relatively short notice — is likely to cause not a little social embarrassment and sends its own signal to the excluded spouse's circles of friends and acquaintances, thereby impacting, at least to some degree, on that spouse's good name as protected by Article 40.3.2 of the Constitution. Perhaps even more to the point, the right of lawful abode in one's own dwelling is a feature not only of the protection of personal property rights which is also protected by Article 40.3.2 but is also part of the fabric of rights associated with the guarantee of inviolability of the dwelling protected by Article 40.5.

66. Indeed, it was considerations of this general nature which were to the fore when the Supreme Court stressed the importance of fair procedures in the administration of the granting of barring orders under the 1996 Act in DK v. Crowley [2002] IESC 66, [2002] 2 I.R. 712. As Keane C.J. stated ( [2002] 2 I.R. 712, 759–760): “In particular, the order ultimately made by the court dealing with the custody of the children of the marriage may necessarily be affected by the absence of one spouse from the family home for a relatively significant period as the result of a barring order: necessarily, because the paramount concern of the court on such an application will be the welfare of the children and the removal of one spouse from the home by legal process for a relatively lengthy period, even though subsequently found to have been wrongful,...