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Many domestic violence applicants do not return for full court hearing

19 Nov 2019 / courts Print

Many domestic violence cases don't return to court

Legal academics who conducted extensive research on family law litigation have found that domestic violence represents a large part of the family law caseload.

However, a substantial number of applicants did not return for full hearings, where evidence is tested rigorously.

The researchers, Dr Sinéad Conneely BL, Dr Roisin O’Shea and Shane Dempsey BSc, MSc, have called for more research into why this is the case.

Their findings are published in the Irish Journal of Family Law (2019) and find that Dolphin House in Dublin is the most appropriately resourced court.

Private family law

Domestic violence presented in almost 25 per cent of all private family law cases in the District Court.

Of the domestic violence applications observed, almost 74.4 per cent were allegations made by a wife or female partner, against their husband or male partner, and 7.8 per cent were made by a husband or male partner against their wife or female partner.

All of these latter cases involved physical violence.

Knife

The researchers  noted that in 100 per cent of cases where a female applicant alleged being threatened with a weapon such as a knife, the application was granted, which was not the case in the male applicant cases where a similar allegation was made.

No applications by same sex partners or spouses were observed. Two applications observed were made by female siblings against a brother, a protection order and a safety order were sought and both were granted.

One application was observed where an adult daughter made an ex parte application for protection against her mother, with whom she resided and a protection order was granted.

Allegations that violence involved a child were very rare with one case where there was an allegation of physical violence against a child.

The researchers observed a high level of applications by parents of adult children. In 15 per cent of domestic violence cases, parents were seeking the protection of the court against an adult child.

In two of these cases where physical assaults had taken place, the applicants had contacted the gardaí who recommended that they make an application to the court.

In almost one third of all domestic violence cases, it was stated by the applicant that alcohol and/or drugs had been consumed by the respondent at the time of the alleged abusive or violent behaviour; in contrast, alcohol and drugs presented in half of the parent versus adult child cases.

Mental illness

In 40 per cent of the parent applicant cases, the adult child had a diagnosed mental illness or behavioural issues.

The applicant father of a 20-year-old young man indicated that his son had serious psychological problems and repeatedly issued death threats to both parents and his siblings – “he said the TV was talking to him so he smashed it, we took him to the guards, they sent him to Caredoc and they tried to have him admitted”.

The court granted an interim barring order. Distress and bewilderment is common in the parents concerned and there are no support services for the parents in these cases.

Forms of violence

Forms of violence that can occur between family members or intimate partners include physical abuse, sexual abuse, emotional abuse, financial abuse, and neglect.

The researchers analysed the cases they observed using the first four of these forms of violence.

There were no allegations of sexual abuse in any of the cases before the courts and, in just one case, the applicant wife alleged controlling behaviour in terms of financial abuse.

Physical abuse was alleged in 48.9 per cent of all domestic violence cases and emotional abuse was alleged in 75.6 per cent of all cases. In cases that only involved spouses or partners emotional abuse was the sole allegation in 50.6 per cent of cases.

Emotional abuse

Applications with a single allegation of emotional abuse are more common in cases where a spouse or partner is the applicant. Parent applicants are more likely to allege physical abuse and in fact, all parent applicants alleged physical abuse, except one.

In certain cases judges wondered if those involved would be better off separating but this is problematic in the current economic and housing situation.

The majority of the ex parte protection order applications (84.8 per cent) were granted. Of the applications refused, the court determined that the applicant had not met the threshold of an imminent threat to their safety or welfare.

'Simple inter-personal conflict'

“As objective observers, we thought that the threshold had not been met in these cases which indicated nothing beyond simple inter-personal conflict. In one case of refusal, both parties sought safety orders against each other for a handful of verbal disagreements,” the researchers write.

There were three applications for interim barring orders; all three were granted. Where a protection order already existed and hearings were observed, 50 per cent of safety orders were granted, 10 per cent were refused, 22.5 per cent were adjourned and 17.5 per cent were struck out.

Barring orders

A total of 40 per cent of the barring orders were granted, 10 per cent were refused, 30 per cent were struck out, and the remainder were adjourned.

In two cases, it was agreed that the application would be struck out where the man agreed to swear an undertaking to the court.

For full hearings, the applicant had legal representation in 31 per cent of the cases in Dublin and in 50 per cent of the rural cases.

Overall there were 65 per cent lay litigants in the Dublin cases and 25 per cent in the rural cases.

Adjournments

The majority of the adjournments occurred where there were existing protection orders and the husband, or male partner was not in attendance or was unrepresented.

It appeared that judges outside of Dublin were anxious to ensure legal representation at the hearings and cases were adjourned to allow parties to obtain a legal aid certificate and representation.

The Courts Service statistics for domestic violence applications paint a similar picture, with 85 per cent of protection orders granted but only 31 per cent of barring orders granted.

This may explain the steady increase in the number of protection order applications over a small decrease in the number of barring order applications.

The State family mediation service offered by the Legal Aid Board operates a domestic abuse screening policy which enables mediation to proceed based on the wishes of the clients where “domestic abuse is alleged or suspected”.

However, the Legal Aid Board’s interpretation of the Mediation Act 2017 is that it ‘excludes’ family mediation taking place where proceedings are underway under the Domestic Violence Acts 1996–2011

The researchers believe that where mediation takes place where there are domestic violence proceedings, the provisions of the Act will not apply.

“It will be interesting to see if the decision of the Family Mediation Service to refuse free mediation to parties where domestic violence proceedings are underway will discourage this upward trend,” they write.

The researchers also found that the allegations made in interim barring order applications were more serious than in protection order applications.

Well-advised

“This demonstrates that the applicants are being well advised by court service staff or NGOs before the application is made,” they write.

The Courts Service puts the success rate for safety orders at a low 35 per cent.

The research finds that many applications for safety orders are struck out because the applicant does not proceed.

While cases may be dropped because of intimidation, it also may be that applicants fear their evidence may not stand up to in-court cross-examination and scrutiny, the researchers suggest.

The academics call for this area of family law to be prioritized in terms of research as definitive conclusions were not obvious from the cases they observed in court.

“These various reasons demand varied policy responses,” they write, reiterating the call for more detailed research.

In conclusion, the researchers say that contextual factors such as drug or alcohol abuse or mental illness often triggered domestic violence and that these factors were almost habitual in the cases they observed.

Conflict arising from child access was very prevalent.

Trigger 

“In 23.3 per cent of the applications observed, applicants cited child access issues as the exclusive or primary trigger for abuse alleged. Most of these cases (72 per cent) involved an allegation of emotional abuse,” the researchers say.

They observed 39 cases seeking access where references to domestic violence were made.

The figures reinforce the need for child contact centres to be available throughout the country in the shape of family resource centre, the researchers say.

In Dublin, the average number of cases on the District Court daily list was 15 per judge with up to five judges sitting each day.

Adequate time

“Each judge was able to give an adequate amount of time to each case, unlike the rural courts where long lists meant that the majority of hearings were extraordinarily brief, often under five minutes,” says Dr O’Shea.

“During our research period, we learned that for a period of time Dolphin House was reduced to three judges sitting per day and this quickly led to a build-up of cases and delays.

“This clearly indicated that, for the volume of cases in the Dublin Metropolitan District, five judges is the effective number to comprehensively deal with 15 to 20 cases each day, per judge.

Judges heard ex parte applications as soon as they arrived into the courthouse, so that there was no build-up of cases, except on Mondays.

Seasonal pattern

The Dolphin House Court continues to hear cases in August, so that there is no seasonal pattern in case numbers, the research shows.

In Waterford, Wexford and Kilkenny, the average number of cases on the list for a single day with a single judge was 45.

In Carlow, there were 97 cases listed for a single judge for the day the researchers were in attendance.

An extraordinary feature of the Carlow list was that 40 of these cases were domestic violence applications, and of those cases, only 17 were adjourned or struck out.

Hugh numbers

Two solicitors and representatives from Carlow Women’s Aid indicated that the family law list in Carlow typically has high numbers of domestic violence applications and cases for hearing.

Some of the discrepancy can be accounted for in a build-up of ex parte cases over time while litigants wait for a family court day.

In all of the rural courts, the academics say that solicitors were key to the management of the over-burdened lists, as without the settlement interventions of solicitors throughout the day, the lists would be completely unworkable.

In total, 499 cases were listed while the researchers were attending, and 28 per cent of cases were adjourned or struck out, while 360 cases that went to hearing.

Diligent assistance of court staff in Dublin in completing applications facilitated fast access to court for lay litigants.  

This help was given in private rooms, particularly for ex parte domestic violence applications in Dublin where incidents leading to the application usually occurred within the previous 48 hours.

“The requirements of the law were followed to the letter in every case that we witnessed, in each location.

Sympathetic judges

“Judges were sympathetic and informal, but also careful to ensure that the grounds for the application were met in full,” say the researchers.

However, a stark contrast exists between Dublin and rural courts in some areas of family law but not in relation to domestic violence, where ex parte applications for protection orders did not require legal assistance and all courts were tolerant of accompaniment.

The speed of access to the courts characterised applications in the capital.

All courts utilised an inquisitorial style when dealing with ex parte applications, of necessity.

Elicit information

“We found this to be a very efficient way to elicit the information that the judge needed to assess the case on a legal basis.

“Judges were well versed in the legislation and applied it consistently. However, in hearings for safety and barring orders, representation varied.

“Where there was no legal representation, the hearing took the more inquisitorial form with the judge speaking to both parties and eliciting the relevant information from them. If either party was represented, the hearing was more adversarial, formal and slower.

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