Domestic Violence Orders in Ireland

Domestic violence is the most section-driven topic on a family law course: very little case law, a great deal of statute. The marks go to candidates who match the right order to the right applicant on the right threshold and state the durations accurately. This note sets out that framework at a conceptual level; it is a study summary of the law, not advice about any individual situation.

The framework and the two thresholds

Part 2 of the 2018 Act creates the civil orders; Part 3 creates the criminal offences that enforce them. Jurisdiction lies principally with the District Court, with the Circuit Court on appeal.

Two definitional points do a lot of work. Under section 2, "welfare" expressly includes psychological as well as physical welfare — so non-physical abuse is squarely within the Act — and an intimate relationship does not cease to be intimate merely because it is no longer sexual. Section 5 sets out a non-exhaustive list of factors the court must consider, including any history of violence, the impact on the applicant and any dependants, and accommodation needs. The concept of constructive residence also matters: a person who would be residing at a place but for the respondent's conduct is treated as residing there.

Two threshold standards then run through the whole Act:

• the ordinary standard — reasonable grounds for believing that the safety or welfare of the applicant or a dependant so requires — which governs safety orders and barring orders; and
• the heightened standard — reasonable grounds for believing there is an immediate risk of significant harm — which governs the urgent, often ex parte interim barring and emergency barring orders.

Naming the correct threshold for the specific order sought is the fastest way to show an examiner you know the statute rather than the topic.

The restraint orders: safety and protection

A safety order under section 6 prohibits the respondent from using or threatening violence, from molesting the applicant or putting them in fear, from watching or besetting the place where they live, and from following or communicating with them, including electronically. Nobody is removed from the home. The threshold is the statutory one — reasonable grounds for believing that the safety or welfare of the applicant or a dependent person so requires (s. 6(2) for a safety order, s. 7(2) for a barring order), and the order may last up to five years, and is renewable and variable.

A protection order under section 10 is the interim version of the same restraints, available pending the hearing of a safety-order or barring-order application, and it may be made ex parte. Like the safety order, it does not remove the respondent.

The removal orders: barring, interim barring and emergency barring

A barring order under section 7 is the powerful order: it directs the respondent to leave the home, prohibits re-entry, and may add the safety-order restraints. Because it interferes with a person's occupation of property, it carries a property test under section 7(6) — the applicant's legal or beneficial interest in the home must be equal to or greater than the respondent's. If the respondent owns the home and the applicant has no interest or a lesser one, a barring order is not available. A barring order lasts up to three years, and is renewable or variable under section 7(12) and dischargeable under section 21. Note also section 7(11): the court cannot make a barring order on a safety-order application — it must be specifically sought.

An interim barring order under section 8 is the urgent removal order pending the determination of a barring application. It is available, including ex parte, where there are reasonable grounds for believing there is an immediate risk of significant harm and that a protection order would be insufficient.

The emergency barring order under section 9 was the headline creation of the 2018 Act. It answers the gap left by the property test: it is designed for an applicant with no interest, or a lesser interest, in the home (section 9(2)). The threshold is the heightened one — reasonable grounds for believing there is an immediate risk of significant harm if the order is not made immediately. Its limits are deliberate and heavily examined: a maximum duration of eight working days, and a bar on seeking a further such order within one month save in exceptional circumstances. It is available to cohabitants and to qualifying parents, but not to spouses or civil partners, who can seek a full barring order instead.

Who may apply

The applicant class differs by order, and this is where most problem questions are actually decided. The safety order under section 6 has the widest class: a spouse or civil partner; a person in an intimate relationship with the respondent, cohabitation not required; a parent of an adult respondent; a person residing in a non-contractual arrangement; and a parent of a child in common with the respondent. Extending safety orders to non-cohabiting intimate partners, and removing the old cohabitation waiting period, were among the principal reforms of 2018.

The removal orders have a narrower class. A barring order under section 7 and an emergency barring order under section 9 are open to a spouse or civil partner, to a person who lived with the respondent in an intimate relationship — so cohabitation is required — and to a parent of an adult respondent; section 9 then excludes spouses and civil partners, who have the full barring order available to them.

Where the person at risk does not apply, section 11 allows the Child and Family Agency (Tusla) to apply on their behalf, and section 12 allows the court to direct an order under the Child Care Act 1991.

Enforcement, offences and procedure

The civil orders are given teeth by Part 3. Contravening a specified order is an offence under section 33, punishable summarily, and section 35 allows a member of An Garda Síochána to arrest without warrant on reasonable suspicion of that offence. Sections 36 and 37 prohibit the publication of material identifying the parties or a dependant.

The Act also created two stand-alone offences. Section 38 criminalises forced marriage — using violence, threats or coercion to cause another person to enter a marriage, or removing them from the State for that purpose — with up to seven years on indictment. Section 39 created the offence of coercive control: knowingly and persistently engaging in behaviour that is controlling or coercive, that has a serious effect on a relevant person, and that a reasonable person would consider likely to have such an effect. It applies to current and former intimate partners and carries up to five years on indictment. It is the tool for patterns of abuse — financial control, isolation, monitoring — that no single assault charge captures, and its elements are cumulative. Keep it firmly separate from the civil orders: section 39 is a criminal offence prosecuted by the DPP, not something an individual applies for. Under section 40, an intimate relationship is an aggravating factor in sentencing for a relevant offence.

Procedure was rebuilt around the applicant's safety and the voice of the child — protection against personal cross-examination by the respondent (section 16), evidence by television link (section 25), a right to be accompanied (section 26) and consideration of the child's views (section 27). On appeals, section 20 draws an important line: an appeal from a safety or barring order may be stayed, but an appeal from a protection, interim barring or emergency barring order does not stay it.

The two authorities worth knowing are short. In G v Collins Binding (IE) Hardiman J held that ex parte relief, such as a protection order, must not be allowed to tilt the balance of the substantive proceedings against the respondent. In CC v Judge William Early IE judicial review of a barring order was refused as a collateral attack: a respondent aggrieved by an order should use the Act's own routes — variation, discharge or appeal — rather than judicial review.

Related Family Law notes: divorce in Ireland · custody and access · guardianship · all free Family Law notes.