Coercive control, prenuptial agreements for farmers, and the Family Courts Bill 2022 were the hot topics at the recent Family and Child Law Webinar. Sorcha Corcoran reports
Coercive control becoming a criminal offence represents real change in the context of domestic-violence legislation in the past number of years but, so far, few cases have come through the courts, a recent webinar has heard.
In her presentation at the Law Society’s Annual Family and Child Law Webinar on 1 December, Helena Kiely (chief prosecution solicitor in the Office of the Director of Public Prosecutions) highlighted four recent decisions on coercive control, which has been a criminal offence since 1 January 2019 under section 39 of the Domestic Violence Act 2018.
The first was DPP v Moody, which came before Dublin District Court in July 2022 and was the subject of the RTÉ documentary Taking Back Control, broadcast last December.
The accused was charged with criminal damage, assault causing harm, threats, reckless endangerment, and coercive control in respect of his former partner. “This case was notorious when it was brought before the courts.
Ex-garda Paul Moody’s behaviour only came to light when he approached a colleague to make a complaint. Looking at his phone and text messages, the gardaí realised the nature of the relationship with the victim and undertook an investigation,” said Kiely.
“While the abuse spanned 11 years, the offence of coercive control related only to actions post the inception of the offence, covering the period from January 2019 to November 2020. Moody pleaded guilty to coercive control and was sentenced to three years and three months in prison.”
First appeal case
DPP v Kane was the first case relating to coercive control to go to the Court of Appeal, on 30 March 2023, Kiely told the webinar.
The accused had been sentenced in November 2020 to ten-and-a-half years, including three years and six months for the coercive-control charge.
“This was a really abusive relationship involving serious assaults. While in prison, Kane made numerous threatening phone calls to induce the victim to withdraw her complaint,” Kiely explained.
“Judge Isobel Kennedy dismissed the appeal, noting the need for a coercive-control offence ‘to capture the emotional and psychological abuse that can occur in the context of an intimate relationship’.”
There were reporting restrictions on the third case highlighted by Kiely, where the 17-year sentence, including four years for coercive control, was recently upheld on appeal.
Rapes, assaults, and false imprisonment were among the charges the accused was convicted of.
“The victim in this case realised very early on after the accused moved in with her that she was in a dangerous situation. He started controlling her media, communication, and whereabouts. She was raped and locked in the house before the coordinated effort of friends and family released her from the situation after three months,” Kiely explained.
Neither could names be divulged in the fourth case referred to by the chief prosecution solicitor, where a vulnerable person met someone on Tinder and was quickly ‘love-bombed’.
Serious assaults and rape were also part of this case, as well as advertising the victim for prostitution.
“What’s interesting about this case is that the victim made complaints over a period of time, initially around assaults and, later, with rapes. It shows how it can take a while for victims to have trust and faith in the system. The first conviction was for coercive control, with a sentence of two-and-a-half years and, more recently, the accused was sentenced to 11-and-a-half years for rape.”
Farmers and prenups
In her presentation to the family law webinar, Clare-based solicitor and tax consultant Aisling Meehan put forward a case for a change in the law in relation to prenuptial agreements (‘prenups’) from her experience of dealing with farmers.
At present, courts are not obliged to enforce prenups, but can have regard to them if they’re deemed fair and reasonable.
“A prenup has been described as a type of contract. But they were inhibited by article 41 of the Constitution, where the State pledges itself to guard the institution of marriage,” she said.
“There has been a departure from this view with the Family Law (Divorce) Act 1996 and the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,” Meehan said.
Under the latter, people can regulate joint financial and property affairs, during and after a relationship, by drawing up a cohabitants agreement – but not if they’re married.
“Farmers have been scratching their heads as to why only couples who aren’t married can have such an agreement. With the focus on increasing land prices, there is a growing appetite within the farming community to make prenups legally binding. The tide has changed, especially in the past year,” Meehan told the webinar.
Meehan referred to the Law Society’s report Divorce in Ireland – The Case for Reform, published in April 2019, which recommended that the law should be reviewed to allow for prenups that are valid and enforceable.
“The report showed that there were no cases where prenups had been presented to the courts for review and/ or approval. There should be provision for prenups to be reviewed to be considered favourably by a court – for example where children have been born or there has been a fundamental change, such as critical illness or disability,” she said.
Family Courts Bill 2022
The moderator of the annual webinar was Peter Doyle, who is chair of the Law Society’s Child and Family Law Committee. He encouraged attendees to review and provide feedback to the committee on the Family Courts Bill 2022.
“As a committee, we had a very busy agenda in 2023 in terms of reviewing the latest developments in law reform – not least the Family Courts Bill 2022, which we have been tracking in the past while,” he said.
“The bill is very welcome in relation to changes and reform, but some aspects of it are of concern for professionals, as well as the general public.”
During the webinar, Keith Walsh (principal, Keith Walsh Solicitors) summed up the problem as he saw it with the Family Courts Bill 2022 being implemented as it stands: “There is a serious risk that the transfer of cases from the Circuit Court to an already over-busy District Court will lead, not just to a delay for judicial separation and divorce cases, but also to delays in other civil and family-law areas, such as domestic violence, guardianship, custody and access cases, as well as maintenance and childcare cases,” he warned.
Sorcha Corcoran is a freelance journalist for the Law Society Gazette.
LOOK IT UP
CASES:
- DPP v Daniel Kane [2023] IECA 86
- DPP v Paul Moody (Dublin Circuit Criminal Court, 2022)
LEGISLATION:
LITERATURE: